J&K&L HIGH COURT: SUMMONING ACCUSED IN A CRIMINAL MATTER IS A SERIOUS BUSINESS, SHOULD NOT BE DONE MECHANICALLY - The Daily Guardian
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J&K&L HIGH COURT: SUMMONING ACCUSED IN A CRIMINAL MATTER IS A SERIOUS BUSINESS, SHOULD NOT BE DONE MECHANICALLY

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Srinagar high court

The Jammu and Kashmir and Ladakh High Court recently in the case Bharti Airtel Limited Company & Ors v Malik Mushtaq observed that the summoning of an accused in a criminal matter is a serious business and the same has to be done only after de application of mind by the concerned court.

The bench comprising of Justice Sanjay Dhar stated that while summoning an accused in a criminal matter is a serious business. Once the criminal law is set into motion, the accused is exposed to the possibility of arrest and he has to rush to seek bail to the court. Therefore, in a criminal complaint the order of summoning an accused should not be a mechanical exercise but such an order should reflect that the Magistrate has applied his mind to the facts of the case and the applicable law, after where the Magistrate has to record his satisfaction as to whether any offence is made out and if so, which of the offences is made out from the contents of the complaint filed and the material available before him. Thereafter, it is only that the Magistrate has to decide as to whether or not the process has to be issued against an accused.

In plea, the observations were made by telecom giant Airtel, wherein challenging an order of Additional Sessions Judge, Pulwama, which had set aside Magistrate’s order dismissing a complaint lodged against the company for offences under Sections 406, 418, 420, 109 and 120-B RPC stating that no sufficient grounds are found for proceeding against the company.

In the present case, the complaint was lodged against over non-activation of a Sim card purchased by the respondent/ complainant from the company.

However, the session judge has remanded the case back to the trial Magistrate with a direction to proceed afresh and pass order in accordance with the provisions of law.

It was argued by the Airtel that its transactions with the respondent are purely of civil nature and if at all the respondent has any grievance and he can approach a Consumer Redressal Forum or a Civil Court. Further, it is contended that the allegations made in the complaint do not disclose commission of any offence.

The respondent stopped appearing after appearing on a few dates in the case and, as such, the case was heard in his absence.

Further, the court observed that in order to attract the ingredients of Section 420, there has to be an element of cheating on the part of the accused. Thus, there must be dishonest or fraudulent inducement on the part of a person at the time of commission of the offence and thereby the other party must have parted with his property.

The Court observed that there can be no dispute to the legal proposition that pursuing of civil remedy will not bar criminal proceedings and that the criminal proceedings cannot be quashed merely because to a complainant civil remedy is also available but then when a dispute arising in a case is purely of a civil nature and it has been given a criminal colour just to wreak vengeance upon the accused and to coerce him to settle a purely civil dispute, on the part of the complainant, the court has to scuttle any such attempt.

After considering the evidences and records on record, the court was of the opinion that it is clear that that the dispute between the petitioners and the respondent/complainant is purely of civil nature and even otherwise, wherein the allegations are made in the impugned complaint against the petitioners do not constitute any criminal offence.

It was noticed by the court that this is a fit case where it should exercise its powers under Section 482 CrPC to prevent the abuse of process of law and the order passed by Additional Sessions Judge to be quashed.

Accordingly, the court allowed the petition.

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Seeking Information From States/UTs On Old Age Homes In Each District, Pension For Elderly & Geriatric Care: Supreme Court

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Seeking Information From States/UTs On Old Age Homes In Each District, Pension For Elderly & Geriatric Care: Supreme Court

The Supreme Court in the case Ashwani Kumar vs Union Of India And Ors. Ministry Of Social Justice and Empowerment Secretary & Ors observed and has directed that all the States and Union Territories to furnish information on their existing schemes operating for the welfare of the elderly with respect of (i) Pension for the elderly, (ii) old age homes in each District and (iii) the level of geriatric care.

In the present case, the bench also asked the State and Union Territories to file the present status regarding implementation of the Maintenance and Welfare of Parents and Senior Citizens Act and has asked them to furnish the information to the Advocate-on-Record of the Union of India and the Union shall thereafter file a revised status report within a period of one month. 

The Apex Court bench comprising of Justice Aniruddha Bose and the Justice Sudhanshu Dhulia observed while hearing a petition filed under Article 32 of the Constitution of India by former Union Law Minister Dr. Ashwani Kumar regarding the enforcement of the rights of an elderly person.  

It was observed that the Supreme Court had earlier in 2018 passed similar directions while passing a judgment in the matter. It was directed to Union of India for obtaining necessary information from all the State Governments and the Union Territories about the number of old age homes and medical facilities and geriatric care facilities that are available to senior citizens in each district and file a status report, also the Union of India was directed to prepare a plan of action for giving publicity to the provisions of the MWP Act and for making senior citizens aware of the provisions of the said Act and the statutory and constitutional rights of senior citizens.

Also, the court had directed that the Government of India to issue appropriate directions to the State Government for effective implementation of the MWP Act and also conduct a review for the purpose of monitoring the progress. It stated that the Government of India was also directed to revisit the schemes and overhaul them so that it may be more realistic.

The Court observed while passing the judgment and order in 2018 that there is a need to continuously monitor the progress in the implementation of the constitutional mandate to make available to the elderly the right to live with dignity and to provide them with reasonable accommodation, the medical facilities and the geriatric care and had noted that focused and more vigorous efforts were needed in the case.

Accordingly, the matter was kept open by the court.

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Centre proposes to submit before Supreme Court a model builder-buyer agreement with mandatory RERA clauses

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Centre proposes to submit before Supreme Court a model builder-buyer agreement with mandatory RERA clauses

The Central Government in the case Ashwini Kumar Upadhyay versus Union of India observed and has proposed to submit before the Supreme Court a model builder-buyer agreement with mandatory clauses which cannot be altered by the Union Territories or the States.

Before the Court, Additional Solicitor General Aiswharya Bhati and amicus curiae Devashish Bharuka submitted that the Court that the model agreement will have Part A which will have core clauses with the mandatory provisions of the Real Estate (Regulation and Development) Act 2016 for the purpose of protection of the home buyers and the Part B which will contain additional clauses as per the requirements of the individual UTs /States. Thereafter, these additional clauses will not be contrary to or dilute in any manner the clauses in Part ‘A’.

The bench comprising of Justice DY Chandrachud and the Justice Hima Kohli observed and has posted the matter for further consideration on November 28, while taking the note of these submissions.

It stated that the development happened in the PIL filed by Ashwini Upadhyay seeking a model builder-buyer agreement. Earlier, it was observed by the Supreme Court that a model agreement was necessary to protect the interests of home buyers and had asked the Union to frame a model agreement after taking inputs from the States. Later, it was asked by Court to the Union to scrutinize the rules framed by the States under RERA to ascertain if essential norms have been incorporated.

Further, it was observed that on September 30, the following States have not submitted their responses:

(i)Andhra Pradesh; (ii) Gujarat; (iii) Chhattisgarh; (iv) Jharkhand;(v) Madhya Pradesh;(vi) Maharashtra;(vii) Manipur;(viii) Mizoram;(ix) Odisha;(x) West Bengal; and (xi) Uttar Pradesh.

On the other hand, the response has been filled by the thirteen States and two Union Territories. 

Thus, the States which have not filed their responses were directed to do so positively within a period of four weeks and failing which the Principal Secretaries of the State Government in the Ministry of Affairs/Urban Development shall personally remain present before the Court on the next date of hearing and to explain as to why they should have not been proceeded with under the coercive arm of the law created.

The court was informed by the Haryana and Maharashtra wings of the Confederation of Real Estate Developers Associations of India (CREDAI) that they will give their responses.

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Centre Appoints Delhi HC Judge Justice Dinesh Kumar Sharma As Presiding Officer Of UAPA Tribunal: PFI Ban

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Centre Appoints Delhi HC Judge Justice Dinesh Kumar Sharma As Presiding Officer Of UAPA Tribunal: PFI Ban

Delhi High Court judge Justice Dinesh Kumar Sharma has been appointed by the Central Government as the Presiding Officer of the Unlawful Activities (Prevention) Tribunal which will be reviewing the ban imposed on the Popular Front of India (PFI) and the organisations affiliated.

On 28th February, 2022, Justice Sharma was appointed as a judge of the Delhi High Court, after being elevated from the Delhi Higher Judicial Service.

On September 28, the Ministry of Home Affairs declared the PFI and its affiliates or associates or fronts as “unlawful associations” with immediate effect starting for a period of 5 years in exercise of the powers provided under Section 3(1) of UAPA. However, citing links with terrorist organizations and involvement in the terror acts, the Centre proscribed its affiliates Rehab India Foundation (RIF) and PFI, Campus Front of India (CFI), National Confederation of Human Rights Organization (NCHRO), All India Imams Council (AIIC), Junior Front, Empower India Foundation, National Women’s Front and Rehab Foundation, Kerala.

It is stated that as per Section 3 of the UAPA Act, where any association has been declared as unlawful, the Central Government shall, within thirty days from the date of the publication of the notification, while referring to the notification to the Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association as unlawful.

Adding to it, as per Section 5 of the UAPA Tribunal should consist of one person and the person should be a High Court judge. On receipt of the notification, the Tribunal will be calling upon the affected association affected by notice in writing to show cause, within thirty days from the date of the service of such notice, why the association should not be declared as unlawful.

Further, the notification of the Centre will have no effect until the Tribunal has confirmed the declaration and the order is published in the Official Gazette by an order made under Section 4.

As per the notification issued by the Ministry of Law & Justice of appointing Justice Sharma and the time spent by him in performing the duties of the UAPA Tribunal will count as “actual service” within the meaning of para 11(b)(i) of Part D of the second schedule of the Constitution reading with Section 2(1)(c)(i) of the High Court Judges (Salaries and Conditions of Service) Act 1954.

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Supreme Court Dismisses Plea Against EVM: ‘Party Without Recognition From Electorate Seeking Recognition By Filling Petitions’

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SUPREME COURT

The Supreme Court in the case Madhya Pradesh Jan Prakash Party versus Election Commission of India observed and has recently dismissed a petition challenging the use of Electronic Voting Machines in the election process with a cost of Rupees 50,000.

The Court observed while dismissing the petition filed by Madhya Pradesh Jan Prakash Party and stated that it appears that party which may not have got much recognition from the electorate now seeks recognition by filing petitions.

The bench comprising of Justice Sanjay Kishan Kaul and Justice Abhay S Oka observed and has stated in the order that the election process under the representation of the People Act, 1951 is being monitored by a Constitutional Authority like the Election Commission. Thus, in our country, the Electronic Voting Machines (EVM) process has been utilized for decades now but periodically issues are sought to be raised and this is one such endeavour in the abstract.

The Court while observing that the filing of such petitions must be deterred, the bench imposed costs of Rs.50,000 on the petitioner and which was being directed to be deposited with Supreme Court Group-C (Non-Clerical), the Employees Welfare Association within a period of four weeks.

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NCLAT: Withdrawal Of Resolution Plan Will Have Disastrous Effect.

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NCLAT: Withdrawal Of Resolution Plan Will Have Disastrous Effect.

The National Company Law Appellate Tribunal (NCLAT) in the case Shardha Buildcon Pvt. Ltd v. The Dhar Textile Mills Ltd, the bench comprising of Justice Ashok Bhushan and Justice Mr. Barun Mitra observed and has dismissed the appeal filed by the Resolution Applicant seeking permission to withdraw its resolution plan and held that allowing withdrawal of a resolution plan will be having serious disastrous effect on the whole purpose of the Insolvency & Bankruptcy Code, 2016.

Before the NCLAT, the appellant filled an appeal against the order dated 21.07.2022 passed by NCLT Indore which relying upon the judgment of Supreme Court in the case Ebix v. Educomp dismissed the application filed by the Appellant wherein seeking for the withdrawal of the resolution plan.

The Appellant contended that the judgement of Ebix is not applicable as the same deals with the cases where the Corporate Debtor has undergone changes but in the present case, wherein the Appellant is seeking withdrawal due to the financial difficulty that is being faced by the Appellant.

The argument of the Appellant was rejected by the bench and has held that even if the Appellant is allowed to withdraw from the plan due to financial difficulty and the same will be amounting to go back from the commitment made in the resolution plan which is not permissible.

The bench observed that the IBC is process consists of different steps with a ultimate object of reviving the Corporate Debtor. Thus, permitting Successful Resolution Applicant to withdraw after the Plan has been approved will have serious disastrous effect on whole purpose and object of IBC.

Accordingly, the NCLAT bench dismissed the appeal filed by the Appellant and has upheld the order of NCLT, Indore.

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Supreme Court: Order Of Termination Approved By Industrial Tribunal Is Binding On Parties, Labour Court Can’t Take Contrary View.

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SUPREME COURT

T

he Supreme Court of India in the case Rajasthan State Road Transport Corporation vs Bharat Singh Jhala (Dead) Son of Shri Nathu Singh, through Legal Heirs & Anr observed that the that an order of termination approved by an Industrial Tribunal is binding on the parties and a Labour Court cannot take a contrary view against it.

The bench comprising of Justice MR Shah and Justice Krishna Murari observed and has stated that once the order of termination was approved by the Industrial Tribunal on appreciation of the evidence led before it, thereafter it was stated that the findings recorded by the Industrial Tribunal were binding between the parties and no contrary view could have been taken by the Labour Court contrary to the findings being recorded by the Industrial Tribunal.

However, the court was considering an appeal plea by the Rajasthan State Road Transport Corporation.

The bench observed that a workman was subjected to departmental enquiry for not issuing tickets to 10 passengers after collecting the fare. Thus, on conclusion of the departmental enquiry, his services were terminated. The termination was the subject matter of the approval application before the Industrial Tribunal in an application under Section 33(2)(b) of the Industrial Act. In the said proceedings, it was permitted by the management to lead the evidence and prove the charge/misconduct before the Tribunal. By order, the Tribunal approved the order of termination.

It was observed that after a judgment and an award in 2019, the Labour Court, Jaipur allowed the said reference and set aside the order of termination. An order was passed by the Labour Court while awarding 50% back wages from the date of termination till his death i.e., December 10, 2018. The Award and the judgement passed by the Labour Court was challenged before both, Single and Division Benches of the High Court. However, the petitions were dismissed both the times.

The Court observed after going through the relevant facts of the case that once the order of termination was approved by the Industrial Tribunal, thereafter the fresh reference under Section 10 of the Industrial Disputes Act, wherein challenging the order of termination was not permissible.

Adding to it, the court stated that though it is required to be noted that the order dated 21.07.2015 passed by the Industrial Tribunal which as such is a higher forum than the finality has been attained by the Labour Court.

Before the High Court, though the aforesaid fact was pointed out, the court did not consider this aspect and confirmed the judgment and award passed by the Labour Court for setting aside the order of termination, which has been approved by the Industrial Tribunal. 

It was held by the Supreme Court that the judgment and award passed by the Labour Court, confirmed by the High Court is unsustainable and allowed the appeal plea.

It has been committed by the High Court that a very serious error in dismissing the writ petition/writ appeal confirming the judgment and award passed by the Labour Court setting aside the order of termination.

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