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Registering offence of corruption against public servants merely on written complaints without supportive material disastrous: MP HC

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While taking potshots on the growing most reprehensible tendency of registering offence of corruption against public servants at the drop of a hat just on written complaints alone without supportive material and terming it as disastrous, the Madhya Pradesh High Court in a learned, laudable, landmark and latest judgment titled Narendra Mishra v. The State of Madhya Pradesh Through P.S. Special Police Establishment Lokayukt Jabalpur (M.P.) in Misc. Criminal Case No. 10053 of 2021 that was delivered recently on February 23, 2022 quashed the charge-sheet and consequential proceedings in a case that was registered for offences under the Prevention of Corruption Act, 1988 (PC Act), observing that the investigating agency proceeded for prosecution based on half-baked material, and that allowing trial to proceed on the basis of the same would be an exercise in futility, inevitably resulting in the discharge of the accused. It must be mentioned that the Division Bench of Justice Sheel Nagu and Justice Purushaindra Kumar Kaurav was essentially dealing with an application under Section 482 of CrPC that was seeking directions of the Court to quash the charge-sheet and the consequential proceedings against the applicant for offence under Section 7 of the Prevention of Corruption Act. This learned judgment deserves to be applauded in no uncertain terms.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Sheel Nagu for a Bench of Madhya Pradesh High Court comprising of herself and Justice Purushaindra Kumar Kaurav first and foremost puts forth in para 1 that, “A short but interesting question is involved in the present petition filed under Section 482 of Code of Criminal Procedure, 1973 (“Cr.P.C.” for brevity) invoking the inherent powers of this Court seeking quashment of charge-sheet bearing Crime No.154/2019 registered at Police Station Special Police Establishment Lokayukt, Jabalpur and the consequential proceedings in shape of Special Case (Lokayukt) No.1/2021 pending before the Court of Special Judge (Lokayukt) Jabalpur.”

As we see, the Bench then stipulates in para 2 that, “The question is whether the quashment of impugned charge-sheet is permissible in law when the only evidence collected during investigation is as follows:

“(i) The written complaint dated 22.07.2019 of the complainant. (ii) The conversation in the Digital Voice Recorder (“DVR” for brevity) which when matched with the sample voice of the petitioner resulted into the following information of the Regional Forensic Laboratory, Bhopal:

From the poorly recorded questioned voice recording marked Q-1 (A)/Q-1(B) and the specimen voice recording marked S-1(A)/S-2(B), sufficient common words/sentences having sufficient amount of speech data for auditory and spectrographic analysis could not be detected. Hence, opinion cannot be given as to whether the voice marked exhibit Q-1(A)/Q-1(B) is the probable voice of the person whose specimen voice is marked exhibit S-1(A)/S-2(B).

(iii) The statement of the shadow witness Constable – Dinesh Dubey who merely saw the complainant and the petitioner sitting in a Car, from a distance but did not hear the conversation between them.””

Be it noted, the Bench then points out in para 5.1 that, “In the instant case, the facts reveal that beside the written complainant of the complainant and the statement of the shadow witness – Constable Dinesh Dubey u/S. 161 of Cr.P.C., there is no other implicative piece of evidence collected by the prosecution. The analysis of the aforesaid two pieces of evidence reveals thus:

“(i) The written complaint of the complainant dated 11.07.2019 alleges that a final bill claiming Rs.24 lakh put up by the complainant is pending in the Divisional Office of MPPKVVCL, Jabalpur and for clearing the same, the Divisional Engineer Neelabh Shrivastava (not made accused) demanding Rs.4.5 lakhs and the petitioner demanded Rs.1.7 lakh as bribe. The complaint further alleges that the complainant does not wish to oblige Neelabh Shrivastava and petitioner and instead, wants to catch them red handed.

(ii) The aforesaid complaint is mere allegation which give a cause to the prosecution to lay a trap so as to collect implicative evidence in support of the complaint whereafter a cognizable offence u/S. 7 or 13 of PC Act, as the case may be, can be registered.

(iii) The complainant was explained the procedure to be followed for voice recording with the aid of DVR and the shadow witness – Dinesh Dubey Constable was directed to accompany the complainant. Thereafter, on 11.07.2019, the complainant along with the DVR entered into a conversation with the petitioner in a Car at 7.30 p.m. The conversation was recorded by the hidden DVR and when the conversation was going on, the shadow witness – Constable Dinesh Dubey is said to be sitting on his motorcycle at a distance from the Car watching the complainant and the petitioner conversing with each other. Importantly, the conversation between petitioner and complainant was not heard by the said shadow witness.

(iv)Thereafter, the complainant made a further written complaint on 22.07.2019 to the prosecuting agency handing over the DVR and detailing the events that took place on 11.07.2019 at 7.30 p.m.. This complaint dated 22.07.2019 expressed apprehension that in all probability, petitioner has become suspicious and, therefore, would not accept any bribe from the complainant.

(v) The voice sample was also collected from the petitioner to enable the expert to compare voice recorded in the DVR with the voice sample.

(vi) On 12.05.2020, the Regional Forensic Science Laboratory, Bhopal issued a report opining that the available voice recording in the DVR and the voice sample are insufficient for auditory and spectrographic analysis and thus no opinion can be given as to whether the two voice samples are of the same person or not.””

Of course, the Bench then rightly maintains in para 5.2 that, “A close scrutiny of the aforesaid events which took place on 11.07.2019 and 12.05.2020 what comes out loud and clear is that the written complaint letter dated 11.07.2019 contains mere allegation against the petitioner which could have matured into registration of offence punishable u/S.7 of P.C. Act and filing of a charge-sheet only when the voice in the DVR and the voice sample collected from petitioner had matched.”

Quite forthrightly, the Bench then also rightly pointed out in para 5.3 that, “The voice recording and the voice sample provided by the prosecution were insufficient for the expert to give any opinion and, therefore, the allegation contained in the complaint dated 11.07.2019 remained mere allegation and thus could not have fructified into registration of offence or filing of a charge-sheet.”

Most significantly, what must capture maximum eyeballs as this is what forms the real essence of this notable judgment is then encapsulated in para 5.4 wherein it is held that, “In an offence punishable u/S. 7 of the PC Act, the least that is required of the Investigating Agency is to collect implicative evidence/material to support the allegation contained in the written complaint. In absence of any such supportive implicative material/evidence, if an offence is registered, merely on the basis of written complaint of complainant, then disastrous consequence can befall upon all public servants thereby exposing them to registration of offence and filing of charge-sheet. A written complaint can be made by any person who nurses a grudge or prejudice against the public servant. The public servant would stand exposed to criminal prosecution on the mere making of a written complaint. This scenario would led to chaos in the administration of service. The public servant shall not be able to discharge his official duties in a free and fair manner due to the ever present feeling of lurking fear in the mind that any act of discharge of official duties can trigger a criminal prosecution.”

While citing the relevant case law, the Bench then enunciates in para 5.5 that, “In somewhat similar circumstances before the Apex Court in the case of Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 where the forensic report found the sample supplied insufficient to come to any conclusion, Supreme Court found it to be a wasteful exercise to proceed with the prosecution. The relevant extract of the said judgment is reproduced below for ready reference and convenience:-

16. It is to be noted that in the first complaint filed by the second respondent, the de facto complainant, there is no allegation for any demand for bribe by the appellant. The allegation of demand is specifically against accused 2 only. That allegation against the appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure-B report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. Learned Counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer.

17. The Magistrate, having seen the records and having heard the parties, has come to the conclusion that no offence is made out against the appellant under the provisions of the PC Act so as to prosecute him. Even according to the High Court, “the crux of the matter is the conversation between the complainant and the accused 1 of 22.11.2010”. That conversation is inaudible and the same is not to be taken in evidence. Therefore, once the ‘crux’ goes, the superstructure also falls, lacking in legs. Hence, prosecution becomes a futile exercise as the materials available do not show that an offence is made out as against the appellant. This part, unfortunately, the High Court missed.

“28 Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course.”

(Pepsi Foods Limited v. Special Judicial Magistrate Para 28). The process of the criminal court shall not be permitted to be used as a weapon of harassment.

Once it is found that there is no material on record to connect an accused with the crime, there is no meaning in prosecuting him. It would be a sheer waste of public time and money to permit such proceedings to continue against such a person.

(See State of Karnataka v. L. Muniswamy)

18. Unmerited and undeserved prosecution is an infringement of the guarantee under Article 21 of the Constitution of India.

“60…….. Article 21 assures every person right to life and personal liberty. The word personal liberty is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme law, the Constitution. …

(State of Bihar v. P.P. Sharma)”.”

It cannot be lost on us that the Bench then in para 5.6 states that, “The Apex Court in the case of Subramanian Swamy Vs. Manmohan Singh and another, 2012 (3) SCC 64 (Para 73 and 74) realizing this special status admissible to public servants has held in regard to the protection given to them. The relevant extract of the said judgment is reproduced below for ready reference and convenience:-

“73. It was pointed out by the Constitution Bench of this Court in Sheonandan Paswan Vs. State of Bihar, (1987) 1 SCC 288:

“14……It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay V. R.S.Nayak, 1984 (2) SCC 500, this Court pointed out that (SCC p. 509, para 6)..

74. Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which bars a Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, has accorded sanction, virtually imposes fetters on private citizens and also on prosecutors from approaching Court against corrupt public servants. These protections are not available to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.””

No doubt, the Bench then citing another relevant case law enunciates in para 5.7 that, “This Court is supported in its view by the decision of the Apex Court in the case of State of Haryana and others Vs. Bhajanlal and others, 1992 Supp.1 SCC 335. The relevant extract of the said judgment reproduced below for ready reference and convenience:-

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) xxx xxx xxx

(2) xxx xxx xxx

(3) Where the uncontroverted allegations made in the FIR or ‘complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4) xxx xxx xxx

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; [Emphasis Supplied].”

It is worth noting that the Bench then stipulates in para 5.8 that, “For an allegation to mature into an FIR, least that is required is that the allegation/first information discloses commission of cognizable offence. Whereas for an FIR to mature into a charge-sheet/final report u/S.173(2) Cr.P.C., it has to undergo the arduous journey from Sec.154 to Sec. 176 (Chapter XII) Cr.P.C. where implicative evidence if any is collected in support of the FIR in a unilateral process called investigation.”

On a pragmatic note, the Bench then observes in para 5.9 that, “Investigation is a unilateral process, being out of bounds for the accused. The investigating agency is thus expected to act in a free, fair and impartial manner with no element of prejudice coming into play for or against the accused or victim. Investigation as is well known is a probe in the dark starting from the known to the unknown moving backwards in time, in search of truth.”

Practically speaking, the Bench then concedes in para 5.10 that, “The task of investigating agency is rendered all the more difficult in face of the accused being entitled to remain silent. Ironically the accused despite knowing the truth cannot be compelled to disclose the same.”

On the face of it, the Bench then propounds in para 5.11 that, “Investigating agency is thus obliged while discharging it’s statutory duty under Chapter XII of Cr.P.C. to ensure that the final report u/S. 173(1) Cr.P.C. if prepared and filed in the Court is accompanied with such supportive/corroborative evidence which gives rise to serious and strong suspicion of involvement of accused in the offence alleged. Another test of a valid and lawful charge-sheet/final report is that if the evidence/material contained therein is left uncontroverted then the same can sustain a conviction.”

Briefly stated, the Bench concedes in para 5.12 that, “Thus to allow the trial to proceed on the basis of an uncorroborated complaint would be an exercise in futility leading to no fruitful result except wasting the precious time of the trial Court.”

Going forward, the Bench then holds in para 5.13 that, “Therefore, a charge-sheet/final report can fructify into taking of cognizance of offence alleged only when the implicative evidence in charge-sheet gives rise to a triable case where foundational ingredients of offence alleged are prima facie palpable.”

Quite remarkably, the Bench then points out in para 6 that, “In a recent decision, the Apex Court while noticing absence of supporting material to the FIR held that the jurisdiction under Section 482 of Cr.P.C. can very well be exercised on the anvil of the law laid down in the case of State of Haryana and others Vs. Bhajanlal (supra) and the recent decision in the case of Neeharika Infrastructure Pvt.Ltd. Vs. State of Maharashtra and others, AIR 2021 SC 1918. The relevant extract of the said judgment reproduced below for ready reference and convenience:-

“15. As observed hereinabove, there may be some cases where the initiation of criminal proceedings may be an abuse of process of law. In such cases, and only in exceptional cases and where it is found that non interference would result into miscarriage of justice, the High Court, in exercise of its inherent powers Under Section 482 Code of Criminal Procedure and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation. However, the High Court should be slow in interfering the criminal proceedings at the initial stage, i.e. quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure. There is no denial of the fact that power Under Section 482 Code of Criminal Procedure is very wide, but as observed by this Court in catena of decisions, referred to hereinabove, confernment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.””

Quite rightly, the Bench then holds in para 7 that, “In the conspectus of above discussion, the material collected by the prosecution falls desperately short of the minimum required standard necessary for filing a final report u/S. 173 of Cr.P.C. and taking cognizance.”

Without mincing any words, the Bench then observes in para 7.1 that, “Pertinently when the Investigating Agency was faced with a non-implicative Forensic Report then the only option available to the Investigating Agency was to go in for a fresh exercise of recording of statement of petitioner by laying of another trap. Instead, the Investigating Agency decided to proceed with the half baked material in shape of written complaint and the statement of shadow witness – Constable Dinesh Dubey, who had not even heard the conversation between petitioner and the complainant. This kind of an exercise by Investigating Agency amounts to utter abuse of process of Court. The charge-sheet filed is thus a waste of precious time of the Court which would be involved in a trial where discharge is inevitable and fait accompli.”

Most remarkably, the Bench then mentions in para 8 that, “Regard being had to the above, this case is one of those rarest of rare cases where without entering into the reliability, genuineness or veracity of the evidence collected, this Court is compelled to invoke it’s inherent powers u/S.482 Cr.P.C. to truncate the prosecution which in turn is based on premature investigation.”

Frankly speaking, the Bench then rightly concedes in para 9 that, “Consequently, this Court is left with no option but to hold that the filing of the charge-sheet in Crime No.154/2019 and the consequential proceeding in Special Case (Lokayukt) No.1/2021 pending before Court of Special Judge (Lokayukt) Jabalpur are abuse of process of the Court.”

Finally, the Bench then concludes by holding in para 10 that, “Accordingly, the charge-sheet in respect of FIR/Crime No.154/2019 registered at Police Station Special Police Establishment (Lokayukt), Jabalpur and the consequential proceeding in respect of Special Case (Lokayukt) No.1/2021 pending before the Court of Special Judge (Lokayukt) Jabalpur stand quashed.”

In conclusion, the Madhya Pradesh High Court has made it amply clear that full caution should be exercised before registering cases of corruption against public servants. We have already dwelt in detail hereinabove. The same must be followed always in all such cases. No denying it!

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Legally Speaking

IN MEDICAL NEGLIGENCE COMPENSATION CLAIMS, MCI FINDINGS REGARDING DOCTORS’ PROFESSIONAL CONDUCT HAVE GREAT RELEVANCE: SC

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The Supreme Court in the case Harnek Singh vs Gurmit Singh observed while considering medical negligence compensation claims that the findings of the report of Medical Council of India on professional conduct of doctors are relevant.

from the date of SCDRC order as compensation thereafter the court directed the Respondents to pay to the complainants a total amount of Rs. 25,00,000 with interest @ 6% per annum. the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service and the court hold that the decision of the NCDRC deserves to be set aside. in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI, the court is of the opinion that the NCDRC has committed an error. The case of medical negligence leading to deficiency in his services, the above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly, observed by the bench.

The bench further observed that he opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance while referring to the contents in the report of MCI.

The issue raises in the above-mentioned case is weather a professional negligence is established by the complainant as per the standards governing the duty to care of a medical practitioner on the part of Respondent As the NCDRC gave its decision without referring to the MCI finding the complainants/appellants submitted, in an appeal submitted by the Apex Court. this complaint got summarily disposed of and they filed appeals before Medical Council Of India The Ethics Committee of MCI held one doctor medically negligent and issued a strict warning to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation he complainants had also made a complaint to the Punjab State Medical Council against the professional misconduct of the doctors, hospitals, surgeons, While the proceedings were pending before the SCDRC.

the complaint and two among the opposite parties were allowed by SCDRC to directly pay Rs. 15,44,000 jointly and severally and Rs. 10,000 as costs as the appeal was allowed by The National Consumer Disputes Redressal Commission of these opposite parties and set aside the order of the SCDRC holding that negligence was not proved by the complainants.

The bench comprising of Justice UU Lalit, justice S. Ravindra Bhat and the justice PS Narasimha also observed and contended the question of intention does not arise that in the proceedings for damages due to professional negligence.

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WHERE THE CLAIMS OF EVENTS HAVE BEEN SUCCESSFULLY ESTABLISHED BY THE PROSECUTION, SECTION 106 OF THE EVIDENCE ACT APPLIES TO CASES: SUPREME COURT

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The Supreme Court in the case Sabitri Samantaray vs State of Odisha observed here chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused, the Section 106 of the Indian Evidence Act applies to cases.

in light of Section 106 of the Evidence Act the High Court rightly observed that as how the deceased lost his life and the onus was now on the appellants to disclose further the court observed that the appellants have failed to offer any credible defense in this regard and it can be deduced that the entire sequence of events strongly point towards the guilt of the accused appellants the burden was on the appellants to prove it otherwise as once the prosecution had successfully established the chain of events.

in the light of the statements made by all the sets of witnesses, with such an intention when analyzed and the fatal injuries sustained by the deceased at the relevant place and time further the court contended while dismissing the plea that it certainly makes out a strong case that death of the deceased was indeed caused by the appellants. in establishing intention of the accused-appellants for the commission of the offence, the prosecution has succeeded, the Court notice.

whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, in a case based on circumstantial evidence then in the chain of events such a response in itself becomes an additional link, when a case is based on circumstantial evidence As Section 106 of the Evidence Act from its burden to establish the guilt of an accused is in no way aimed at relieving the prosecution. where chain of events has been successfully established by the prosecution, it only applies to those cases from which a reasonable inference is made out against the accused.

the Section 106 it merely prescribes that when an individual has done an act and in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt Thereafter the onus of proving that specific intention falls onto 9 the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove, with an intention other than that which the circumstances indicate. As the Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, observed by the Bench as the said provisions Since it is all based upon the interpretation of Section 106 Evidence Act, the contentions of either

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed and contended whenever an incriminating question is posed to the accused and he or she either evades response or that which being offers a response is not true then such a response in itself becomes an additional link in the chain of event, in a case based on circumstantial evidence.

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A candidate has no legal right to insist that the recruitment process set in motion be carried to its logical end: SC

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The Supreme Court in the present case Employees State Insurance Corporation vs Dr. Vinay Kumar observed that the recruitment process set in motion be carried to its logical end as the candidate does not have a legal right to insist.

The bench directed the Corporation-appellants to take a decision regarding whether to complete the recruitment process, bearing in mind all relevant aspects within a period of two months, while allowing the appeal further it stated there is however no doubt from holding that the employer is free to act in an arbitrary manner.

A recruitment process which is set in motion be carried to its logical end candidate who has applied does not have a legal right to insist that Even in the select list may not clothe the candidate with such a right and that too even in the inclusion of a candidate.

A recruitment process carried to its logical end and the process set in motion, the candidate who applied does not have the legal right and thereafter the court further contended that the cardinal principle we must bear in mind is that this is a case of direct recruitment, observed by the bench.

The Court further said that it is quite likely that any candidate who may have being desirous of applying, may not have applied being discouraged by the fact that the advertisement has been put on hold and by agreeing with the applicant the court contended and said that the direction to conclude the proceedings within 45 days is unsupportable.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

The ground raised by the appellants for not proceeding with the procedure of direct recruitment is untenable, the respondent contended before the court and on the other hand on account of certain developments which took place, there may really be no need to fill up the post of Associate Professor and the respondent may not have a right as such, the appellant contended before the Apex Court.

The High Court which dismissed the writ petition filled by the Corporation and it directed the Corporation to conclude the process positively within a period of 45 day. the Corporation filed appeal before the Apex Court, Aggrieved with this direction.

The bench comprising of Justice KM Joseph and the justice Hrishikesh Roy observed that Even inclusion of a candidate in the select list may not clothe the candidate with such a right and it does not mean that the employer is free to act in an arbitrary manner, the bench clarified.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

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ON THE PLEA TO STAY THE RETIREMENT OF EXISTING MEMBERS UNTIL THE ACTUAL JOINING OF NEW MEMBERS, SUPREME COURT ISSUES NOTICE

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The Supreme Court in the case Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi v Union of India & Or’s observed in a petition till all the vacancies which arose from 2019-2022 are filled by actual joining of candidates by putting a stay on the impending retirement of all the existing Judicial/ Administrative Members of CAT the court further issued the notice.

In the plea it was stated in the petition that although 35 Judicial Members including the Chairman and 35 Administrative Members cater to 19 benches and 8 circuit benches, many benches of the Tribunals have become non functional because of the retirement of members at regular intervals as it was Preferred by Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi.

Furthermore, the petition stated the Jabalpur Bench, Cuttack Bench, Lucknow Bench, Jammu and Srinagar Bench are left with only one member either Judicial or Administrative because of which no division bench can be constituted there. As on 31st March, 2022, the Guwahati Bench has become totally non-functional as no Member is available there.

Justice Chandrachud stated by taking a note of the above submissions:

A bench can’t be constituted with one member.

Justice Chandrachud further asked to submit an up-to-date chart with regards to the number of members who are present in the various benches of CAT and ordered the counsel for the Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi to do the same.

Justice Kant further added by taking a note of the above submissions:

The members whose term is likely now to expire in Future, give the details of those members.

The benches of the Central Administrative Tribunal will become non-functional if the aforesaid situation continues for a couple of more months, more than half of the sanctioned stated in the plea.

AOR Amita Singh Kalkal, has filled a plea before the Supreme Court.

The bench of comprising of Justice DY Chandrachud and the justice Surya Kant by making a note of the above submissions ordered to issue a notice and in addition the liberty to serve the Central Agency.

The bench ordered to comply with the same and listed the matter on 13th May.

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Supreme Court upholds disciplinary action against judicial officers for showing undue favour to a party in the worst kind of judicial dishonesty

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The Supreme Court in the case Muzaffar Hussain versus State of Uttar Pradesh observed a judicial officer in Uttar Pradesh for passing orders to unduly favour certain parties for taking against the disciplinary action.

The High Court reduced the punishment as curtailment of pensionary benefits by 70% and refused to interfere with the findings and the officer approached the Supreme Court for Challenging the High Court’s verdict.

A writ petition was filed before the High Court challenging the punishment by the officer. In 2005, the Allahabad High Court initiated disciplinary enquiry against him for misconduct and found the charges to be proved. On the recommendation made by the Full Court, the State of Uttar Pradesh imposed a punishment of curtailment of his pensionary benefits by 90% to join the Central Administrative Tribunal as a judicial member in 2003, the officer took Voluntary Retirement from Service.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

The bench of Justice Bela Trivedi, an judgement authored noted:

the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case and if he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion. The extraneous consideration for showing favour need not always be a monetary consideration further she said that In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct.

while being the Additional District Judge at Agra during 2001 to 2003, the officer named Muzaffar Hussain and the charge was that in a batch of land acquisition matters in violation of settled principles in order to unduly favour certain subsequent purchasers had exorbitantly enhanced the compensation.

Thereafter the Apex Court added that under Article 235 of the Constitution of India the High Court had perfectly justified in exercising its supervisory jurisdiction, under these circumstances.

The division bench comprising of justice DY Chandrachud and the justice Bela M Trivedi observed under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct and that showing undue favour to a party.

The Court stated, the case must be decided by the Judge on the basis of the law applicable to the case and the facts on record. He is not performing his duties in accordance with law if he decides the case or extraneous reasons.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

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ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC

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The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.

the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.

It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-­auction notice came to be issued by the Bank.

The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

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