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Fugitive Economic Offenders Act, 2018 vis-à-vis extradition: A viewpoint

Analysing the Fugitive Economic Offenders Act, 2018 (FEO Act) with regards to extradition.

Rohan Garg

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Before proceedings further, let us consider two foreign judgments first:

1. French Court

Case title: De Zorzi v. Attorney General Appeal Court of Paris, France

 Citation: [2019] EWHC 2062 (Admin)

Facts: Ms. Zorzi was facing a trial in the district court of France. Pending decision, she was released on 15 July 2000 under ‘judicial supervision’. She was told that she was free to leave France but would have to return the following year. She was required to respond to summonses issued by the French court and to inform the court of any change of address. She was living in the Netherlands. The district French court were able to write to her on 30 October 2000 at her Dutch address, therefore, she was not, during that period, unlawfully at large nor was she a fugitive. She was required to attend the court in France on 28 June 2001 and she did so. She was ultimately convicted but was informed of it when she had already returned to the Netherlands after appearance on 28 June 2001. After her conviction, the district judge of the French court declared her as fugitive for four reasons: First, she acquired this status because she was informed in writing of the conviction and sentence not long after they were decided although the intimation was served to her in the Netherlands. Second, she appealed conviction and sentence through her lawyers. Third, she chose not to surrender herself to the French prison authorities when required to do so. Fourth, she was aware that her return was sought when she was subject to the extradition proceedings in the Netherlands. This declaration of status as fugitive was overturned by the appeal court. The appeal court held that firstly there was no clear evidence that she fled to Holland to avoid being told the outcome of the trial; instead she was simply returning home. The appeal court opined that mere receipt of a document from a foreign court by a person in the country of their residence informing them of their conviction in that foreign state and requiring their return does not make them a fugitive. It cannot be said that that person knowingly placed herself beyond the reach of a legal process when they were already beyond its reach. Secondly, her appealing a sentence does not amount to her knowingly placing herself beyond the reach of a legal process; on the contrary she is engaging in the legal process, albeit at a distance and by means of her lawyers’ representations. Thirdly, to surrender herself to the French prison authorities would have amounted to abandoning her resistance to extradition, and resisting extradition does not render an individual a fugitive. In any event, declining to surrender herself to the requesting state does not constitute knowingly placing herself beyond the reach of a legal process. It amounts instead to declining to place herself within the reach of that process. She was not obliged to place herself within the reach of a legal process instituted in another country and to leave and give up her home and lawful residence. Fourthly, the fact that she was aware that her return was sought when she was subject to the extradition proceedings in the Netherlands is of no consequence.

UK: The High Court of Justice

Case title: Marianne PillarNeumann & Public Prosecutor’s Office

Citation: [2017] EWHC 3371 (Admin)

Facts: District Judge found appellant fugitive on the ground that in 2004 the appellant became aware that a domestic warrant for her arrest had been issued in Austria and that by failing to leave her home in the UK and to go to Austria, so that she could be arrested pursuant to that warrant, she was evading arrest and was therefore a fugitive. The High Court rejected this finding and opined that even if she was aware of the domestic warrant, lawfully remaining in her established country of residence does not mean she was evading arrest or was a fugitive. The court held that she was not fleeing the country or concealing her whereabouts. She was not taking any positive steps to evade or avoid arrest. She was simply carrying on living in her country of residence, as she was lawfully entitled to do. The High Court added that she was not knowingly placing herself beyond the reach of a legal process. There is no case in which it has been found or even suggested that failing to give up home and lawful residence in order to place within the legal process instituted in another country makes someone a fugitive. The High Court, in fact noted that “fugitive” is not a statutory term but a concept developed in the case law. To declare a person’s status as a fugitive, it must be established to the criminal standard. In this case, the district judge was wrong to find to the criminal standard that the appellant was a fugitive.

In this backdrop, let’s consider a situation in India. An individual, a citizen of India, acquires citizenship of another country after clearance by Indian authorities (thereby automatically ceases to be an Indian citizen) and permanently shifts to the other country and starts living there lawfully. Subsequently, Fugitive Economic Offender Act is enacted and proceedings commenced against that individual who is a lawful citizen of another country. A notice is served upon him asking him to surrender to face prosecution or else be declared a fugitive. A fundamental question arises. Does that individual, a foreign national, not have right to decline placing himself within the reach of process issued by Indian court under the FEO Act and instead exercise his rights to resist extradition? The answer, in my opinion, is yes. He has right to decline surrender and right to resist extradition during which time he cannot be declared a fugitive. But, the law as it stands in India, FEO Act declares an individual fugitive even if that individual lawfully acquired citizenship of another country much before the enactment and commencement of proceedings under FEO Act. Things would have been different had there been a clear evidence to criminal standard that the individual possessed knowledge of the FEO proceedings while he was in India and he knowingly fled to another country to intentionally place himself beyond the reach of process. But to declare an individual fugitive who has already left India and its citizenship is not only a retrospective action but also amounts to making him abandon resistance to extradition, which is his basic legal right.

The ‘statement of objects and reasons’ of the Fugitive Economic Offenders Act (herein after referred to as FEO Act) is as under: –

 “There have been several instances of economic offenders fleeing the jurisdiction of Indian courts anticipating the commencement of criminal proceedings or sometimes during the pendency of such proceedings. The absence of such offenders from Indian courts has several deleterious consequences, such as, it obstructs investigation in criminal cases, it wastes precious time of courts and it undermines the rule of law in India. Further, most of such cases of economic offences involve non-repayment of bank loans thereby worsening the financial health of the banking sector in India. The existing civil and criminal provisions in law are inadequate to deal with the severity of the problem. In order to address the said problem and lay down measures to deter economic offenders from evading the process of Indian law by remaining outside the jurisdiction of Indian courts, it is proposed to enact a legislation, namely, the Fugitive Economic Offenders Bill, 2018 to ensure that fugitive economic offenders return to India to face the action in accordance with law.”

The words, “…to ensure that fugitive economic offenders return to India to face the action in accordance with law.” are of utmost importance.

Similarly, section 2(f) of the FEO Act states “fugitive economic offender means any individual against whom a warrant for arrest in relation to a Scheduled Offence has been issued by any Court in India, who— (i) has left India so as to avoid criminal prosecution; or (ii) being abroad, refuses to return to India to face criminal prosecution”

Likewise, when a notice is issued under section 10 (3) of the FEO Act, it requires the individual to appear in person at a specified place and time and failure to appear shall result in declaration of the individual as fugitive economic offender. After issuance of notice, section 11 of the FEO Act states that if the individual ‘appears in person’, the special court may terminate the fugitive proceedings.

 Words, “…to ensure that fugitive economic offenders return to India to face the action in accordance with law…” used in the statement of objects and reasons of the FEO Act together with the words “..being abroad, refuses to return to India to face criminal prosecution” appearing in section 2(f) and words “appear in person” used in section 10 and 11, leads to an inevitable conclusion that the intent and the objective of the FEO Act is to bring back the accused to face prosecution or else confiscate his properties.

Now, the question that arises is whether an individual, who is lawfully residing in his country of residence, even if he is aware of the domestic warrant issued in the requesting state, be declared fugitive, if the individual declines to place himself within the reach of that process?

 The answer, in my personal opinion, as well as in terms of decisions passed by the foreign courts is no.

Let us now analyse FEO Act from an international perspective.

 New Zealand

United Kingdom enacted Fugitive Offenders Act on 27th August 1881. In 1881, New Zealand had been a “self-governing colony” of the United Kingdom with the Parliament of the United Kingdom retaining the power to legislate for the colony. Thus the 1881 Fugitive Offenders Act had applied to New Zealand. In 1947 the New Zealand Parliament enacted the Statute of Westminister Adoption Act by virtue of which it acquired full power “to make laws having extra-territorial operation. Subsequent repeals of relevant sections of the New Zealand Constitution Act 1952 by the New Zealand Constitution Amendment Act 1970 completed the process in the evolution of New Zealand as an independent State. Consequently, in 1976, when the United Kingdom repealed and replaced the 1881 Act with a new Act, its application was not extended to New Zealand. The Parliament of the United Kingdom replaced 1881 Act with an up-to-date one but in New Zealand 1881 Act still subsisted like an unburied corpse. It was then that the Government noted that it should decide whether to ask Parliament to replace 1881 Act with a functional statute with respect to the United Kingdom “or” whether, if United Kingdom be regarded as a ‘foreign country’, to invoke the provisions of the New Zealand’s Extradition Act 1965 by concluding an appropriate treaty. Ultimately, the government of New Zealand enacted the Fugitive Offenders Amendment Act 1976, which amended the 1881 Act.

 The aforesaid underlined portion is of utmost importance. After New Zealand became independent State, the Government had to decide whether to regard United Kingdom as a ‘foreign country’ to invoke New Zealand’s Extradition Act 1965 or to have a new functional statute replacing 1881 Fugitive Act. Therefore, the government could choose one and not both.

 But India, on the contrary, has enacted two statutes for the same purpose.

Further, under the fugitive act 1976 of New Zealand there are various safeguards available to the accused in sec. 29A –

 “29A. (1) Notwithstanding anything in this Act, a fugitive or a person accused of an offence shall not be returned under this Act from New Zealand to another Commonwealth country if the offence in respect of which his return is sought is an offence of a political character.”

“(2) Notwithstanding anything in this Act, fugitive or a person accused of an offence shall not be returned under this Act from New Zealand to another Commonwealth country if – (a) In any case to which Part I of this Act applies, it appears to the Minister of Justice, or to any court before which the fugitive is brought, or to any court or Judge on an application for a writ of habeas corpus; or (b) In any case to which Part II of this Act applies, it appears to any court before which the accused person is brought, or to any court or Judge on an application for a writ of habeas corpus – that – (c) The return of fugitive or accused person, although purporting to have been sought in respect of an offence for which, but for this subsection, he would be liable to be returned, was sought for the purpose of – (i) Prosecuting or punishing him for an offence of a political character; or (ii) Prosecuting or punishing him on account of his race, religion, nationality, or political opinions; or (d) If the fugitive of the accused person is returned, he may be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality, or political opinions.”

 But, the FEO Act of 2018 has no safeguards.

Canada

 In a case, Germany sought extradition of a Canadian citizen residing in Canada.

 Sec. 6(1) of the Canadian Charter of Rights and Freedoms reads – “6(1) Every citizen of Canada has the right to enter, remain in and leave Canada.”

Section 52(1) of the Canadian Constitution reads “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

Section 1 of the Canadian Charter reads “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

 A joint reading of all these provisions, the Chief Justice of the High Court while accepting that extradition is ‘prima facie’ an infringement on the s. 6 mobility rights of a citizen concluded that the Requesting State had established that extradition is a procedure prescribed by law and is a reasonable limitation on one’s guaranteed rights and freedoms which can be demonstrably justified in our society.

In this case, when the Deputy Minister of Justice was questioned about exile and deportation with relation to s.6, the Minister replied as follows: –

“Perhaps I might mention that we do not see Clause 6 as being an absolute right. I will give you an example of a situation where a citizen would, in effect lose his right to remain in the country, that would be by virtue of an order under the Extradition Act; if someone committed an offence in another country and he is sought in this country, he could be surrendered to the other country. The same thing would apply in the case of countries belonging to the Commonwealth to which the Extradition Act does not apply, but the Fugitive Offenders Act does apply. In that situation a Canadian would not have the right to remain in the country by virtue of the offences he might have committed in another country and for which he is sought so that justice could be applied. Under the Extradition Act there is a process to which the person is entitled before that extradition order can in fact be finalised.” The above paragraph clearly shows that a person’s freedom of movement can be restricted only by extradition Act and if extradition Act is not applicable to a certain country (for example commonwealth country as mentioned above) then Fugitive Offenders Act shall apply.

But India, on the contrary, applies both Extradition as well as FEO Act on an individual at the same time.

United Kingdom

Extradition Acts 1870 was in force until it was repealed by Fugitive Offenders Act 1881, which was repealed by Fugitive Offenders Act 1967, which was then repealed by Extradition Act 1989, which was in turn repealed by Extradition Act 2003. Under all these Acts including UK’s Fugitive Offenders Act, an accused/fugitive had in-built safeguards.

 Safeguards provided under the then UK’s Fugitive Offenders Act 1967:

 “Sec. 4(1) – A person shall not be returned under this Act to a designated Commonwealth country or committed to or kept in custody for the purpose of such return, if it appears to the Secretary of State, to the court of committal or to the High Court … on an application for habeas corpus or for review of the order of committal –

 (a) that the offence of which that person is accused or was convicted is an offence of a political character;

(b) that the request for his return (though purporting to be made on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, or political opinions; or

(c) that he might, if returned, by prejudiced at his trial or punished, detailed or restricted in his personal liberty by reason of his race, religion, nationality, or political opinions.”

 In UK, Fugitive Offenders Acts of 1881 & 1967 were used for extradition. Under these Acts extradition was prohibited for political offences. Under the UK’s Extradition Act 1870, the Fugitive Offenders Act 1881, 1967, and the Extradition Act 1989, the Secretary of State possessed a general discretion whether or not to surrender the fugitive to the requesting State.

 The Fugitive Offenders Acts enacted by countries from time to time had inbuilt safeguards such as dual criminality, requirement that a prima facie case be made out, the principle of speciality, prohibition on extradition on grounds of race, religion, nationality, or political opinions, prohibition if accused is likely to face prejudice, unjust detention etc but there is no such safeguard available to the accused under the FEO Act of India.

Consider a situation where there is an extradition treaty/arrangement between India and a foreign State. The question of law that needs attention is whether inspite of having an extradition arrangement/treaty containing safeguards, if the government of India sought return of the accused under FEO Act failing which confiscate his properties, will it not amount to denial of justice to the accused by forcing him to abandon his resistance to extradition, who otherwise could have legally resisted extradition. If the accused chooses to resist extradition, his properties are confiscated under the FEO Act and if the accused surrenders under the FEO Act in order to save his properties, he is automatically deprived and abandoned of the legitimate resistance to extradition. Is this not equivalent to forcing an accused to give up one of his two constitutional rights i.e right to equality before law or constitutional right to property? Is this not arbitrary and unreasonable?

Keeping in mind how the Fugitive Offenders Act developed in the western countries and how the foreign courts dealt with the term ‘fugitive’, it is to be seen how fairly, justly, and reasonably the FEO Act is amended and applied especially to the disputes relating to Nirav Modi, Vijay Mallya, Mehul Choksi etc. In my personal opinion, the law as it stands now, is unconstitutional for the reasons stated above.

 Adv. Rohan Garg is Partner, Fox Mondal & Co. He is a LL.M (Utrecht University) D-1926/2005

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PUNJAB & HARYANA HC GRANTS BAIL TO MAN BOOKED UNDER POSCO ACT ON CHARGES BY WIFE REGARDING INCIDENT THAT TOOK PLACE WHEN SHE WAS A MINOR

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The Punjab and Haryana High Court in the case Dinesh Versus State of Haryana observed and has recently granted a regular bail to a man booked under the POCSO Act after the complainant, the petitioner wife, accused him of penetrative sexual assault in an incident that allegedly took place prior to their marriage, when the petitioner wife was still a minor.

The bench comprising of Justice Vikas Bahl observed that no date of the alleged incident has been mentioned in the FIR and it was registered after the petitioner moved a plea for restitution of conjugal rights, the bench noted that the FIR was registered after much delay.

It was observed that the FIR was registered under Sections 6, 12 and 17 of POCSO Act and Sections 506, 376(2) (N), 323, 328 and 406 of Indian Penal Code, 1860.

The Court noted that no date of incident has been mentioned in the FIR and the said FIR has been registered after filing of the petition by the petitioner under Section 9 of the Hindu Marriage Act, 1955. Prima facie, it also appears that after much delay, the FIR has been registered.

Further, the Court observed that the affidavit suggests that the complainant married the petitioner without coercion or pressure and also the Aadhaar Card that suggests her to have attained the majority age at the time of her marriage.

The bench after considering the fact that the petitioner is not involved in any other matter and prosecution is to take time and also that the co-accused Yogesh has been granted interim protection. It was stated that this court deemed it fit to extent the relief of regular bail to the petitioner. It observed that since 07.12.2021, the petitioner has been in custody and there are 22 prosecution witnesses and none of them have been examined. Therefore, the trial is likely to take time.

Moreover, the court allowed the instant petition and released the petitioner on regular basis subject to its cancellation if he threatens or influences the witness.

The present petition is allowed by the court, while keeping in view the facts and circumstances and the petitioner is ordered to be released on bail on his furnishing bail or surety bonds to the satisfaction of the concerned trial Court or Duty Magistrate and subject to him not being required in any other case. In the present case, it is made clear, the petitioner threatens or influences any witness, it would be open to the State to move an application for cancellation of the present regular bail granted to the petitioner by the court.

Accordingly, the petition is disposed off in above terms.

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Allahabad High Court refuses to quash case against government, madrasa teachers allegedly found with cow meat, 16 live cattle stock

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The Allahabad High Court in the case Parvez Ahmad And 3 Others v. State of U.P. and Another observed and refused to quash the criminal case against a government teacher and a madrasa teacher from whose alleged possession cow meat (beef) and 16 live cattle were recovered.

The bench comprising of Justice Rohit Ranjan Agarwal observed that the First Information Report (FIR) that prima facie cognizable offence is made out against the applicants and thus, no case was made out against them, to quash the case.

Facts of the Case:

In the present matter, the court was dealing with the 482 CrPC plea filed by 4 applicants booked under Sections 153- A, Section 420, Section 429, Section 188, Section 269, Section 270, Section 273 of the Indian Penal Code, 1860 and section 3/5/8 of Prevention of Cow Slaughter Act, 1955 and section 11 of Prevention of Cruelty to Animals Act, 1979 and section 7/8 of Environment (Protection) Act, 1986, plea seeking to quash the case.

An Assistant teacher, Applicant no. 1 in the education department of the State. As Assistant Teacher, the applicant no. 2 is also working in the Madrasa Darul Ulum Gausia Kasba Salempur. A medical shop is run by the applicant no. 3 and applicant no. 4 is Hafiz Quran.

It was observed that their submission that a report from the Forensic Investigation Laboratory had received did not disclose that the sample sent for analysis was of the cow. Their case was case that no case under the Prevention of Cow Slaughter Act was made out.

It was argued by the State counsel that the FIR is a detailed report, the FIR which categorically mentioned that out of 16 live cattle stock which included 7 buffaloes, 1 cow, 2 female buffalo’s calf, 5 male buffalo’s calf, and one male cow-calf.

It was further argued by the state that it was wrong to say that the FSL report gave a clean chit to the applicants. Moreover, as 16 cattle were found in the possession of the applicants and other co-accused and they were not having any license to run the slaughterhouse.

Court Analysis:

The argument of the Applicant was discarded by the Court on the ground that no offence was made out from the reading of the First Information Report. It was underscored by the court that even though the FSL report had revealed that the sample which was sent for chemical analysis was not cow meat, but from the custody of the applicants and another co-accused, 16 live cattle were also recovered.

The court observing that defence regarding the FSL report shall be considered by the trial court as such defence set up in the present application cannot be considered at this stage by this Court, at the stage of quashing of the charge sheet

Accordingly, the case was dismissed.

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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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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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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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