In a well-articulated, well-worded, well-reasoned and well drafted judgment titled Sumedh Singh Saini vs State of Punjab and another in exercise of its criminal appellate jurisdiction in Criminal Appeal No. 827 of 2020 (Arising from SLP(Criminal) No. 4336/2020) delivered most recently on December 3, 2020, a three Judge Bench of the Apex Court comprising of Justice Ashok Bhushan, Justice R Subhash Reddy and Justice MR Shah have been forthright in observing that a long delay in lodging FIR can be a valid consideration for grant of anticipatory bail. The Bench headed by Justice Ashok Bhushan observed thus while allowing the anticipatory bail plea of Sumedh Singh Saini who is the former Director General of Police (DGP), Punjab who had sought the bail in relation to the 1991 Balwant Singh Multani murder case. Earlier we had seen how the Punjab and Haryana High Court had dismissed his anticipatory bail application which was bound to disappoint him greatly.
To start with, this latest, landmark, learned and laudable judgment authored by Justice MR Shah for himself, Justice Ashok Bhushan and Justice R Subhash Reddy after granting leave as mentioned in para 1 then while stating the brief facts states in para 2 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 08.09.2020 passed by the High Court of Punjab and Haryana at Chandigarh in CRMM No. 26304 of 2020, by which the application submitted by the appellant herein for anticipatory bail in connection with FIR No. 77 dated 06.05.2020 for the offence punishable under Section 302 IPC, lodged with Police Station City Mataur, District S.A.S. Nagar, Mohali has been dismissed, the original petitioner-accused has preferred the present appeal.”
To say the least, the Bench then observes in para 3 that, “That one Palwinder Singh Multani, brother of one Balwant Singh Multani (deceased) has lodged an FIR against the appellant at Police Station City Mataur initially for the offences punishable under Sections 364, 201, 344, 219 and 120B of the IPC, and subsequently the offence punishable under Section 302 IPC has been added.”
More revealingly, it is then stated in para 3.1 that, “It is alleged that in the year 1991 one Balwant Singh Multani – brother of the informant was illegally abducted from his residence at Mohali by a team of officials operating under the instructions of the appellant; that he was severely and inhumanly tortured while in custody, by and at the behest of the appellant. It is further alleged that a false and fabricated FIR No. 112 of 1991 might have been registered at the instance of the appellant to suggest that the victim was brought to the police station Qadian from where the victim was alleged to have escaped.”
While elaborating in detail, the Bench then observes in para 3.2 that, “That apprehending his arrest in connection with FIR No. 77 dated 06.05.2020, the appellant filed anticipatory bail application before the learned Additional Sessions Judge, Mohali. At this stage, it is required to be noted that when the appellant applied for anticipatory bail, the allegations in the FIR against the appellant were only for the offences punishable under Sections 364, 201, 344, 330, 219 and 120B of the IPC. That by order dated 11.05.2020, the learned Additional Sessions Judge, Mohali granted anticipatory bail in favour of the appellant. That thereafter as the appellant was apprehending that the offence under Section 302 IPC may be added, he approached the learned Additional Sessions Judge, Mohali for anticipatory bail for the offence punishable under Section 302 also. By order dated 10.07.2020, the learned Additional Sessions Judge granted protection by way of three days’ advance notice in case of addition of offence under Section 302 IPC. It appears that thereafter three co-accused in FIR No. 77 dated 06.05.2020 wanted to become approver and they submitted the applications before the learned Chief Judicial Magistrate, Mohali for grant of pardon and declaring them as approver under Section 306 Cr.P.C. However, all the three applications came to be dismissed by the learned Chief Judicial Magistrate, Mohali, vide order dated 7.8.2020. However, thereafter the applications submitted by the other co-accused – Jagir Singh and Kuldip Singh to grant them pardon and permit them to become approver came to be allowed by the learned Chief Judicial Magistrate, Mohali, vide order dated 18.08.2020. That thereafter the statements of Jagir Singh and Kuldip Singh were recorded by the learned Judicial Magistrate (First Class), Mohali, which were against the appellant. On the basis of the statements of the aforesaid two co-accused who subsequently turned approver – Jagir Singh and Kuldip Singh, an application was submitted before the learned Judicial Magistrate, First Class (Duty Magistrate) seeking addition of Section 302 IPC in FIR No. 77 dated 06.05.2020. That by order dated 21.08.2020, the learned Judicial Magistrate, First Class (Duty Magistrate) allowed the said application and thus Section 302 IPC came to be added.”
To be sure, it is then stated in para 3.3 that, “That thereafter the appellant applied for anticipatory bail for the offence under Section 302 IPC before the learned Additional Sessions Judge, Mohali by way of bail application no. 1527 of 2020. That the learned Additional Sessions Judge vide order dated 01.09.2020 dismissed the said application. That thereafter the appellant approached the High Court of Punjab and Haryana at Chandigarh with an application for grant of anticipatory bail being CRMM No. 26304 of 2020. By the impugned judgment and order, the High Court has dismissed the said anticipatory bail application. Hence, the appellant has preferred the present appeal.”
As we see, it is then pointed out in para 4 that, “Shri Mukul Rohatgi, learned Senior Advocate has appeared for the appellant-accused, Shri Sidharth Luthra, learned Senior Advocate has appeared for the State of Punjab and Shri K.V. Vishwanathan, learned Senior Advocate has appeared on behalf of the original informant.”
To put things in perspective, it is then envisaged in para 6 that, “We have heard the learned counsel appearing on behalf of the appellant-accused, learned counsel appearing on behalf of the State and learned counsel appearing on behalf of the original informant. At the outset, it is required to be noted that in the present appeal the only question which is required to be considered is whether the appellant is entitled to the anticipatory bail under Section 438 Cr.P.C.?”
As it turned out, the Bench then holds in para 7 that, “Number of submissions have been made by the learned counsel appearing on behalf of the appellant-accused on political vendetta, malafide, delay in lodging the FIR, even the maintainability of the impugned FIR etc. However, taking into consideration that the quashing petition filed by the appellant-accused is pending before this Court and the issue whether the FIR/criminal proceedings are required to be quashed or not is at large before this Court, we do not propose to elaborately deal with all the submissions made by the learned counsel appearing on behalf of the respective parties.
However, considering the fact that the impugned FIR has been lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar (supra) and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, we are of the opinion that at least a case is made out by the appellant for grant of anticipatory bail under Section 438 Cr.P.C. Many a time, delay may not be fatal to the criminal proceedings. However, it always depends upon the facts and circumstances of each case. However, at the same time, a long delay like 29 years as in the present case can certainly be a valid consideration for grant of anticipatory bail.”
Be it noted, the Bench then makes it a point to observe in para 8 that, “Informant and the State are relying upon the observations made by this Court in the case of Davinder Pal Singh Bhullar (supra) and the liberty reserved in para 117 to the applicant who earlier filed the petition under Section 482 Cr.P.C. (father of the deceased) to take recourse to fresh proceedings, if permissible in law. However, suffice it to say that the said liberty was as such in favour of the father of the deceased who in the earlier round of litigation before the High Court (from which the SLP (Criminal) No. 6503-6509/2011 were arisen) filed the petitions under Section 482 Cr.P.C. This Court reserved the liberty in favour of the father of the deceased to take recourse to fresh proceedings by specifically observing that if permissible in law.” It is reported that the father of the deceased died in the year 2014. Till 2014, the father of the deceased did not initiate any fresh proceedings. After a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar (supra), all of a sudden, now the informant-brother of the deceased has woken up and has initiated the present criminal proceedings. Whether the fresh/present proceedings are permissible in law are yet to be considered by this Court in the pending proceedings for quashing the impugned FIR.”
Furthermore, the Bench then goes on to add in para 9 that, “Looking at the status of the appellant and it is reported that he has retired in the year 2018 as Director General of Police, Punjab after 30 years of service and the alleged incident is of the year 1991 and even in the present FIR initially there was no allegation for the offence under Section 302 IPC and the allegations were only for the offences under Sections 364, 201, 344, 330, 219 and 120B of the IPC, for which there was an order of anticipatory bail in favour of the appellant and subsequently the offence under Section 302 IPC has been added on the basis of the statements of Jagir Singh and Kuldip Singh – approvers only, we are of the opinion that the appellant has made out a case for anticipatory bail.”
As a corollary, it is then held in para 10 that, “In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court, as well, as the learned Additional Sessions Court dismissing the anticipatory bail applications of the appellant for the offence punishable under Section 302 IPC in connection with FIR No. 77 dated 6.5.2020, registered at P.S. City Mataur, District S.A.S. Nagar, Mohali are hereby quashed and set aside. It is ordered that in case of arrest of the appellant – Sumedh Singh Saini in connection with FIR No. 77 dated 6.5.2020, registered at P.S. City Mataur, District S.A.S. Nagar, Mohali for the offence punishable under Section 302 IPC, he shall be released on bail on furnishing personal bond in the sum of Rs.1,00,000/- (Rupees one lakh only) and two sureties of the like amount and to surrender the passport and to cooperate with the investigation (however without prejudice to his rights and contentions in the pending proceedings to quash the impugned FIR).” Finally, it is then held in para 11 that, “The appeal is allowed to the aforesaid extent.”
To conclude, the bottom-line of this learned, latest, laudable and landmark judgment is that the long delay in lodging an FIR is certainly a valid consideration to grant anticipatory bail. All the Judges of all the courts whether it is the District Courts or High Courts or even the Supreme Court itself must always take into account the gist of what has been held so exclusively, so explicitly and so elegantly in this noteworthy case by a three Judge Bench of the Supreme Court comprising of Justice Ashok Bhushan, Justice Subhash Reddy and Justice MR Shah whenever there is a long delay in lodging an FIR without any compelling reasons! There certainly can be no ever denying or disputing it
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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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