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Re-examining the evidentiary threshold standards vis-à-vis departmental, criminal proceedings

The primary consideration that one must keep in mind while analysing departmental and criminal proceedings, which are investigating the accused on the same set of facts and allegations, is that the two proceedings are completely independent of each other and follow different jurisprudence.

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The Misconceived Notion in Ashoo Tewari: Grant of Sanction is an ‘Administrative Function’ and not a ‘Departmental Proceeding’

In a recent judgment pronounced on September 08, 2020, the three judge Bench of the Supreme Court of India, comprising of Justices Rohinton Nariman, Navin Sinha and Indira Banerjee, in the matter of Ashoo Surendranath Tewari v. The Deputy Superintendent of Police, EOW, CBI & Anr. [Criminal Appeal No. 575 of 2020, arising out of SLP (Crl.) No. 5422 of 2015], quashed the criminal proceedings while relying on the reading of the CVC report which concurred with the view of the Disciplinary Authority (“DA”) which refused to grant sanction, a legal requirement under Section 19 of the Prevention of Corruption Act to prosecute public servants, to the CBI in order to proceed with criminal prosecution against the appellant. The Bench, while placing reliance on the CVC report on the matter, took additional support of the rationale that the criminal prosecution cannot proceed on the same set of facts and allegations for which the departmental proceeding has exonerated the accused on merits of the matter, so that even if the hypothetical was entertained where the criminal trial continued, it would not result in conviction as the chances of conviction appeared bleak in light of the CVC report.

Albeit the judgment’s foundation and the end result are clearly in the interest of justice, however, the problematic aspect of the judgment lies where the Bench relies upon the importation of the ‘Standard of Proof’ from the Departmental/Adjudicatory Proceedings to affect the consequences of the Criminal Proceedings, by utilising the exoneration in the departmental proceeding as the basis to quash the criminal proceeding. The author of the instant article will focus on this issue of importation of the concept of standard of proof from a departmental proceeding to affect a criminal proceeding as both the proceedings function in different spheres of law, which are governed by distinct jurisprudence.

At the very outset, one thing that must be understood in reference to Ashoo Tewari is that there was no need for the Court to go into this line of thought comprising of the fact that the departmental proceedings are governed by lower standard of proof while the criminal proceedings are governed by higher standard of proof. The Court unnecessarily went into this question, which does not have any direct bearings on the matter and therefore, the same cannot be said to form a precedent on this proposition. To further clarify, the exercise to grant sanction under Section 19 of the Prevention of Corruption Act by the Disciplinary Authority is an ‘administrative function’. The CVC in term of its powers and functions under Section 8(1)(f) of the CVC Act, 2003, directs all administrative authorities to scrupulously follow the guidelines while considering and deciding the requests for Sanction for prosecution. The Commission had laid down, vide CVC Circular No. 005/VGL/11 dated 12.05.2005, that the grant of sanction would be an administrative act [See also Supdt. of Police (C.B.I.) v. Deepak Chowdhary]. The reason provided was to protect the public servant from harassment by frivolous or vexatious prosecution, and the question of giving opportunity to be heard does not arise at this stage as the sanctioning authority only has to see whether the facts would prima facie constitute the offence. Therefore, the exercise of such a function being performed by the DA will not be governed by the principles of Natural Justice or other judicial principles which holds influence over a judicial proceeding such as the Departmental Proceeding/Adjudicatory Proceeding that would be undertaken by the DA. However, since the Bench unnecessarily went into this question, the same would appropriately fall for consideration as a legal issue to be examined.

Flawed Application of the ‘Standard of Proof’ Doctrine between Departmental and Criminal Proceedings

The Bench observed, in Para 7, that there are a number of judgments which have held that the criminal proceedings can be quashed, when the departmental proceedings had failed to prove the charge due to lack of evidence, because there is a higher ‘standard of proof’ required to secure a conviction in criminal proceedings as opposed to proving a charge in departmental proceedings. The standard of proof for proving a charge in departmental proceedings is based on the doctrine of ‘preponderance of probabilities’ where the departmental enquiry needs to prove the evidence, on the basis of preponderance of proof although the evidence may not be entirely free from doubt, that the accused has committed the delinquency. However, that is not the case in matters of criminal prosecution where the standard of proof must satisfy the doctrine of ‘guilt beyond reasonable doubt’ in order to secure conviction.

Thus, the rationale of the Bench is that since departmental proceedings have a lower threshold of ‘standard of proof’, which was not satisfied in proving the charge, whereby the Bench is confusing the concept of departmental proceeding with the exercise of an administrative function by referring to the refusal of sanction by the DA and consequently by the CVC as the accused being ‘discharged’, and therefore, the Bench proceeds on the assumption that there is no basis to continue with the criminal proceeding as it is a well-recognised principle that criminal culpability must be ascertained ‘beyond reasonable doubt’.

However, the above stated justification applied by the Court is incorrect, as it is based on the flawed perception that departmental proceedings and criminal proceedings are the same in nature and function. Moreover, the reliance placed on the decision of P.S. Rajya v. State of Bihar is incorrect and per incuriam because numerous precedents have ruled that P.S. Rajya will not be considered as a precedent on the said proposition.

The Supreme Court of India in State v. M. Krishna Mohan had held that P.S. Rajya did not lay down any proposition with respect to quashing of criminal proceedings as the natural result of exoneration in departmental proceedings. The Court held that P.S. Rajya quashed the criminal proceedings because of the peculiar facts of that particular case, and it was not quashed on the ground that the departmental proceedings exonerated the accused, which is evident from the plain reading of paragraph 23 of P.S. Rajya judgment. In Central Bureau of Investigation v. V.K. Bhutiani, the accused was exonerated in the departmental proceeding by the Central Vigilance Commission. The accused challenged his criminal prosecution before the High Court relying on the decision of the Apex Court in the case of P.S. Rajya,and the High Court quashed the prosecution. However, upon challenge by the Central Bureau of Investigation, the decision of the High Court was reversed placing reliance upon the decision of M. Krishna Mohan, where the Apex Court came to the conclusion that the quashing of the criminal prosecution was incorrect. It would also be pertinent to mention that in State of N.C.T. of Delhi v. Ajay Kumar Tyagi, a three judge Bench of the Apex Court had held that the exoneration in departmental proceedings would, ipso facto, not result into the quashing of the criminal prosecution. The Court further explained that the decision of P.S. Rajya must be understood to have been rendered on the basis of the peculiar facts of the matter, which is evident from a clear reading of the report in P.S. Rajya itself.

The Need for Compartmentalisation of the ‘Standard of Proof’ Doctrine Vis-à-vis Departmental and Criminal Proceedings

The primary consideration that one must keep in mind while analysing departmental proceedings and criminal proceedings, which are investigating the accused on the same set of facts and allegations, is that the two proceedings are completely independent of each other and follow different jurisprudence. The result of one proceeding which is based on the different sets of standards of proof therein should not impact the second proceeding as they are distinct from each other in nature, therefore, any influence of one over the other will severely damage the sanctity of either of the proceedings, which would not be in the interest of justice, equity and fair play.

The Supreme Court of India and many High Courts, in a majority of judgements have held that exoneration of an accused in departmental proceedings would not mean an, ipso facto,quashing of criminal proceedings, as the two proceedings are distinct entities following different sets of law, governed by separate considerations and independent factors. In Ajay Kumar Tyagi, the Court elaborated upon the principle governing the proposition that exoneration in departmental proceeding would not, ipso facto, result in quashing of the criminal proceeding or acquittal of the accused. The Court held that, while it is a well-settled proposition that the ‘standard of proof’ in departmental proceedings is lower as opposed to criminal prosecution, it is also an equally well-settled principle that departmental proceedings and criminal proceedings have to be decided ‘only’ on the basis of the evidence adduced therein. The Court clarified that the ‘truthfulness’ of the evidence in a criminal case can be adjudged only after the evidence is adduced therein and the criminal case cannot be rejected on the basis of the evidence adduced in the departmental proceeding or the report of the Inquiry Officer based on that evidence. Therefore, the two proceedings function independently of each other and there should be no apprehension of the outcome of one proceeding affecting the other, because the ingredients of delinquency/misconduct in criminal prosecution and departmental proceedings, as well as the standards of proof required in both cases are not identical, however, what may affect the outcome of the subsequent proceedings may be the contradictions, which the witnesses may make in their depositions, and thus it is, therefore, necessary to consider all relevant matters in each individual case [See CVC Circular No. 1/DSP/3 dated 03.02.1981 regarding starting of Departmental proceedings along with prosecution]. However, in especially rare cases, where the interest of justice demands it, the accused can be saved from the rigmarole of the criminal trial only in cases where the departmental proceeding has arrived at a positive and conclusive finding of innocence of the accused instead of failure to prove the charges because of lack of satisfaction of the standard of proof required therein, provided the facts found in both the proceedings and the allegations are identical.

It would be pertinent to mention here that the rationale of departmental exoneration being the basis of quashing criminal prosecution requires the existence of the underlying principle that the two proceedings are equivalent to each other in nature or hierarchy, however, as it was stated above, that is not the case. This false equivalence can be highlighted while illustrating the various differences between the two proceedings.

False Equivalence of Departmental and Criminal Proceedings

Nature and Objective of the Proceedings: The scope of departmental enquiry and judicial proceedings, and the effect of acquittal in a criminal proceeding has been examined by a three judge Bench of the Apex Court in Depot Manager A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Others, wherein the Court held that the purpose of departmental enquiry and of prosecution are different, where the criminal prosecution is launched for an offence for violation of a duty which the offender owes to the society, and the law has provided that the offender shall make satisfaction to the public. Therefore, a crime is an act of commission in violation of law or of omission of public duty. On the other hand, the purpose of departmental enquiry is to maintain discipline in the service in order to effectuate efficiency in public administration. The trial for the criminal offence should be conducted in accordance with the proof of the offence as per the Evidence Act. The converse is true for departmental proceedings as well, where the enquiry relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules or law, and the settled legal position is that the strict standard of proof or applicability of the Evidence Act stands excluded. Thus, departmental proceedings are constituted with the objective to ascertain whether the accused is guilty of civil delinquency while a criminal proceeding aims to ascertain whether the accused is liable for criminal culpability. Therefore, one proceeding functions in the sphere of civil law while the other proceeding functions in the sphere of criminal law, therefore, any comparison between the two different sets of laws may result into flawed conclusions.

Difference in Scope of Powers: The Investigating Officer has a much wider scope of powers to investigate offences under the Indian Penal Code [I.P.C.] using the procedure defined in the Code of Criminal Procedure [Cr.P.C.] and the recording of evidence under the Evidence Act, while an Inquiry Officer has severely restricted powers of investigation under the concerned statutory rules or law. For example, in departmental proceedings, the Inquiry Officer does not enjoy the same powers as an Investigating Officer with respect to remand, search, seizure, etc. Furthermore, in departmental proceedings, in contradistinction to criminal proceedings, you cannot cross-examine the evidence or even cross-examine the accused on oath, which naturally means that the accused enjoys a greater liberty to lie. In Sreerama Murty v. C.W.C. [1991 (1) SLR], the Court held that circumstantial evidence is enough to record conviction, and the evidences/documents adduced in departmental proceedings do not have to qualify the test of cross-examination. In State of Haryana v. Rattan Singh, wherein the Court held that the Evidence Act will not apply to ‘domestic enquiry’, and at times, even hearsay evidence can be accepted as evidence in the ‘domestic enquiry’ as long as it has reasonable nexus and credibility. Therefore, the technicalities of criminal law cannot be invoked and the strict mode of proof prescribed by the Evidence Act may not be complied with equal vigour in departmental proceedings. In a recent judgment of the Apex Court in Karnataka Power Transmission Corporation Limited v. Sri C Nagaraju & Anr., the Court reiterated that the object of a departmental enquiry is to find out whether the delinquent is guilty of misconduct under the Conduct Rules for the purpose of determining whether he should be allowed to continue service. It, thus, follows that due to the different natures of the proceedings, the ‘quality’ of the evidence in the two proceedings are quite different since the standard of proof, mode of enquiry and the rules governing enquiry and trial in both the cases are significantly distinct and different.

Purpose behind the Different Evidentiary Threshold Standards: It is of primary importance to consider the logic behind having varying thresholds for the different proceedings in respect of the ‘standard of proof’ that is required to be satisfied in order to ascertain the criminal culpability or the civil delinquency of the accused. Since departmental proceedings enjoy very limited powers to conduct an enquiry, and therefore the departmental proceedings are governed by the principle of ‘preponderance of probabilities’ which requires a much lower standard of proof to be established to prove the charge of civil delinquency. However, criminal proceedings enjoy wide scope of powers, and therefore, criminal proceedings are subjected to the doctrine of establishing ‘guilt beyond reasonable doubt’ to ensure that no innocent person is wrongly convicted of a crime in contravention of the golden principle of criminal law,which posits that every individual enjoys the presumption of ‘innocence until proven guilty’. In Mohd. Yousuf Miya, the Court held that the enquiry in the departmental proceedings relates to the conduct of the delinquent officer and the proof required on that behalf is not as high as in the case of a criminal offence. The nature of evidence in criminal trial is entirely different from what it is in departmental proceedings. In the former, the prosecution has to prove its case beyond reasonable doubt on the touchstone of human conduct in the witness box, while the standard of proof in the latter proceedings is not the same as criminal proceedings. The evidence is different in both the proceedings from the perspective of the Evidence Act, where the evidence required in the departmental enquiry is not governed by the Evidence Act. This judicial exposition has been further affirmed by a three judge Bench of the Apex Court in Ajit Kumar Nag v. General Manager (PJ) Indian Oil Corporation Limited Haldia & Ors., where the Court held that in a criminal trial, while observing that the two proceedings are distinct from each other and they operate in different fields and have different objectives, the incriminating statement made by the accused in certain circumstance or before certain officers is wholly inadmissible in evidence. The strict rules of evidence and procedure would not apply to departmental proceedings. As mentioned previously, the degree of proof to order a conviction is different from the degree of proof to record the commission of delinquency. The rationale for this line of thought can be attributed to the fact that the rules relating to the appreciation of evidence in the two proceedings are not similar.

CONCLUSION

From the above discussion, the observation that becomes amply clear is that it would be a flawed understanding of the nature of the two proceedings to allow any form of parallel equation between the two proceedings so as to enable the importation of the ‘Standard of Proof’ doctrine from one proceeding to affect the other. The result of such a flawed understanding would only cause detrimental effect to departmental proceedings from an administrative point of view. In certain situations, the accused will exercise his utmost ability to secure a favourable verdict in the departmental proceeding, which is easier to manipulate and influence in a democracy, so that he can avoid the criminal proceeding entirely where there is a higher probability of the accused being held criminally culpable. Therefore, it would be incorrect for the criminal proceeding to be quashed against the accused, on the basis of the exoneration in the departmental proceeding, on the ground that the ‘standard of proof’ will not be satisfied as it failed to be satisfied in the departmental proceeding because the ‘standard of proof’ in both the proceedings are being governed by distinct jurisprudence.

Jaiyesh Bhoosreddy is a Fourth Year Law Student from University School of Law and Legal Studies, GGSIPU)

This judicial exposition has been further affirmed by a three-judge Bench of the Supreme Court in Ajit Kumar Nag v. General Manager (PJ) Indian Oil Corporation Limited Haldia & Ors., where the court held that in a criminal trial, while observing that the two proceedings are distinct from each other and they operate in different fields and have different objectives, the incriminating statement made by the accused in certain circumstance or before certain officers is wholly inadmissible in evidence.

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

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

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

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

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

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

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

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

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

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

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

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

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

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

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

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

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

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

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

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

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

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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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.

Court Analysis:

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.

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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

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

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.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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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.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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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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