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Showing 121 to 140 of 1396 Records
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2021 (4) TMI 1276
Seeking grant of Bail - homicidal deaths - Applicability of principles of parity - recovery of two country made guns, two indigenous counterfeit guns, four dhariyas and one wooden stick, from the scene of offence - it is alleged that Accused had produced fake documents for the purpose of obtaining bail - Section 439 of the Code of Criminal Procedure 1973 - HELD THAT:- The incident which took place on 9 May 2020 resulted in five homicidal deaths. The nature of the offence is a circumstance which has an important bearing on the grant of bail. The orders of the High Court are conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted.
We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In NEERU YADAV VERSUS STATE OF U.P. [2014 (12) TMI 1347 - SUPREME COURT], this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail.
Principle of parity - HELD THAT:- Parity while granting bail must focus upon role of the Accused. Merely observing that another Accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the Accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.
There has been a manifest failure of the High Court to advert to material circumstances, especially the narration of the incident as it appears in the cross FIR which was lodged on 13 May 2020. Above all, the High Court has completely ignored the gravity and seriousness of the offence which resulted in five homicidal deaths. This is clearly a case where the orders passed by the High Court suffered from a clear perversity.
Grant of bail Under Section 439 of the Code of Criminal Procedure is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail-as in the case of any other discretion which is vested in a court as a judicial institution-is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice - This Court in CHAMAN LAL VERSUS STATE OF U.P. AND ORS. [2004 (8) TMI 745 - SUPREME COURT] in a similar vein has held that an order of a High Court which does not contain reasons for prima facie concluding that a bail should be granted is liable to be set aside for non-application of mind.
The orders granting bail to the Respondent-Accused Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17) suffer from a clear perversity - Appeal allowed.
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2021 (4) TMI 1275
Seeking modification in the condition to move outside Sundargarh district in relation to his business work - HELD THAT:- Having heard both the parties, learned J.M.F.C., Rourkela or the court in seisin over the matter is directed to permit the petitioner to move outside the jurisdiction of Sundargarh in appropriate cases keeping in view his genuine requirement for the purpose.
Application disposed off.
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2021 (4) TMI 1274
Travel Restrictions - validity of detention at Mumbai Airport - principal contention raised on behalf of the petitioner is that when he is not arraigned as an accused in any FIR, much less FIR pertaining to offences registered against the owner of Kingfisher Airlines, there was no basis for Respondent Nos. 2 and 3 to impose travel restrictions on him - HELD THAT:- It is specifed that recourse to issuance of LOC is to be taken in cognizable offences under the IPC or other penal laws. It is also specifed therein that in cases where there is no cognizable offence under the IPC or other penal laws, LOC subject cannot be detained/arrested or prevented from leaving the country. The agency which has caused the issuance of LOC can only request that it be informed about arrival/departure of the subject in such cases. This is of signifcance in the present Writ Petition.
A perusal of the office memoranda would show that in the present case, since the petitioner is not arraigned as accused for cognizable offence and he was merely called for questioning only once by Respondent No. 2-CBI in connection with case of Kingfisher Airlines, travel restrictions could not have been imposed upon him. All that Respondent No. 2-CBI could insist upon, under clause (h) of the office memorandum dated 27.10.2010, was that it be informed about arrival/departure of the petitioner in connection with his trips abroad - It is not even the case of the respondents that if the petitioner is permitted to leave the country it would be detrimental to the sovereignty, security or integrity of India or bilateral relations with any country or to the strategic/economic interests of India. It is also not the case of the respondents that any amounts are to be recovered from the petitioner for which the Chairman of the SBI or any other public sector bank has made a request for issuance of LOC.
There can be no doubt that the petitioner needs to co-operate with Respondent No. 2-CBI in that regard. But, it cannot be said that Respondent No. 2 was entitled to impose travel restrictions to prevent the petitioner from travelling abroad.
The Petitioner shall be entitled to travel abroad for his personal and professional obligations, subject to the conditions imposed - petition allowed.
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2021 (4) TMI 1273
Delay of 5 years or more in initiating action by the SEBI - HELD THAT:- Issue of delay can also be looked into by the appellant – SEBI while passing a final order keeping in view the various judgments. It is not a case where the show cause notice has not been issued by a competent authority and only on the point of delay, the notice could not have been quashed in the manner and method it has been done. See MR. MUKKARAM JAN VERSUS SECURITIES EXCHANGE BOARD OF INDIA [2021 (1) TMI 1174 - KARNATAKA HIGH COURT]
Petition preferred by the respondent against the show cause notice dated 20.10.2016 and notice dated 20.8.2019, was certainly a premature writ petition and therefore, the writ appeal is allowed. The order passed by the learned Single Judge is hereby set aside. The appellant SEBI is directed to conclude the proceedings within a period of six months from the date of receipt of certified copy of this judgment. The appellant – Board shall not grant unnecessary adjournment in the matter and in case need so arises for grant of an adjournment, reasons for such adjournment shall be recorded in writing.
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2021 (4) TMI 1272
Direction for enquiry to an independent agency - HELD THAT:- In view of the nature of allegations, the personas involved and the seriousness of the allegations do require an independent agency to enquire into the matter. It is a matter of public confidence given the factual scenario.
We are unable to accept the contentions of Dr. A.M. Singhvi, learned senior counsel that merely because the Home Minister has resigned after the impugned order would be a factor not to direct enquiry by an independent agency. The two personas held post of Home Minister and Commissioner of Police for a long period and the latter would be a post of confidence of the former. Further, we are unable to accept the contention of Mr. Kapil Sibal, learned senior counsel that even for directing a preliminary enquiry, the petitioner Mr. Anil Deshmukh is mandatorily entitled to be heard in his individual capacity even though the State Government was represented and he was a Minister at that time.
SLP dismissed.
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2021 (4) TMI 1271
Seeking intervention - corrupt malpractices or not - seeking for a mandamus or any other appropriate writ, order or direction directing the CBI/Enforcement Directorate (ED), or any independent agency to conduct unbiased, uninfluenced, impartial and fair investigation in the various corrupt malpractices of Shri Deshmukh, the 6th respondent, as well as into the role played by Shri Param Bir - HELD THAT:- Registration of a case is a sine qua non for starting an investigation has been held in MOHINDRO VERSUS STATE OF PUNJAB & ORS. [2001 (1) TMI 987 - SC ORDER]. Such registration could be facilitated if information were furnished or a complaint lodged disclosing commission of a cognizable offence. The jurisdictional fact for setting the criminal law in motion is traceable in the CrWP of Dr. Patil, who seems to have provided the necessary and crucial break through by lodging a complaint. She has brought to the notice of this Court the failure of the Senior Police Inspector, Malabar Hill Police Station to follow the legislative mandate as in Section 154 of the CrPC - before considering the question of relief that could at all be granted on the CrWP, we would be failing in our duty if we do not consider the decisions cited by Shri Kumbhakoni in support of his preliminary objection to the entertainability thereof.
It is well-settled that the jurisdiction under Article 226 of the Constitution of India is very wide and the same is not and cannot be restricted by law; however, various judicial pronouncements have set the limits of exercise of such power or jurisdiction ~ the limits being the self-imposed restrictions conceptualized through judicial wisdom. In the context of the nature of the concern expressed in the CrWP, the restriction to be kept in mind in deciding the question of entertainability is, whether there exists any equally efficacious alternative remedy in a criminal court and even if such a forum of redress is available, should the writ court entertain the writ petition - Where a person or authority is vested with a duty by specific statutory provisions, to compel such person or authority to perform such duty is certainly within the power and jurisdiction of a writ court. The exercise of such power will be consistent with the Constitutional provision which binds a person, on his elevation as a Judge, by the oath of office administered to him. Where, therefore, there is a duty to act, refusal is the least the law can tolerate.
It is true that having regard to the self-imposed restrictions, a High Court exercising writ powers under Article 226 may refuse to entertain a challenge to an action/inaction of a public official who, being bound to perform certain mandatory duty, acts in disregard thereof, but it cannot be gainsaid that varying fact situations require different approaches, and it would be insensible to either envisage or lay down hard and fast guidelines of universal application. Rule of law, in terms of the Constitution, pervades over the entire field of administration and every organ of the State is regulated by it - The discretionary power that is vested in the High Court for enforcement of the Fundamental Rights or for any other purpose is meant to be exercised on considerations of justice, and for eradicating injustice.
It is well settled that the High Court under Article 226 of the Constitution and the Supreme Court under Article 32 of the Constitution can direct the CBI to investigate into any specific case or to conduct an inquiry against a person. It can do so only when there is sufficient material before the Court to come to a prima facie conclusion that there is a need for such an inquiry. Certainly, such an inquiry cannot be ordered as a matter of routine or merely because a party makes an allegation. If after considering the materials on record the Court concludes that such materials disclose a prima facie case calling for investigation by the CBI, the Court can make the necessary order - A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. It was observed that the public authorities cannot play fast and loose with the powers vested in them. The Court also observed that functioning of a democratic form of Government demands equality and absence of arbitrariness and discrimination.
It is certainly an issue of credibility of the State machinery, which would stare at the face when confronted with the expectations of the law and when such complaints are received against high ranking public officials. This Court cannot be a mere spectator in these circumstances. There is certainly a legitimate public expectation of a free, fair, honest and impartial inquiry and investigation into such allegations which have surfaced in the public domain. The necessity to have a probe into such allegations by an independent agency, would also certainly be a requirement of the rule of law.
Application disposed off.
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2021 (4) TMI 1270
Deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes - manner in which documents referred to are presented and exhibited in the judgment - lack of uniform practices in regard to preparation of injury reports - deposition of witnesses - translation of statements - numbering and nomenclature of witnesses - labeling of material objects - HELD THAT:- The High Courts unanimously welcomed the suggestion of separating the prosecution from the investigation, (i.e. Rule 18 in the Draft Rules, 2020) which provides that a separate team of lawyers, distinct from Public Prosecutors must advise the police during the investigation. However, as pointed out by many High Courts, this is a step that should be actively pursued by the State Governments. Similarly, the High Courts welcomed the uniform manner in which body sketches, spot panchnamas etc. are to be brought on record (Draft Rules 1-4). However, they state that the onus for the implementation of these Rules is on the investigation agencies.
Apart from Section 148, there are other provisions of the Evidence Act (Sections 149-154) which define the ground rules for cross examination. During questioning, no doubt, the counsel for the party seeking cross examination has considerable leeway; cross examination is not confined to matters in issue, but extends to all relevant facts. However, if the court is not empowered to rule, during the proceeding, whether a line of questioning is relevant, the danger lies in irrelevant, vague and speculative answers entering the record. Further, based on the answers to what (subsequently turn out to be irrelevant, vague or otherwise impermissible questions) more questions might be asked and answered. If this process were to be repeated in case of most witnesses, the record would be cluttered with a jumble of irrelevant details, which at best can be distracting, and at worst, prejudicial to the accused.
This court is of the opinion that the courts in all criminal trials should, at the beginning of the trial, i.e. after summoning of the accused, and framing of charges, hold a preliminary case management hearing. This hearing may take place immediately after the framing of the charge - the concerned witnesses may be bound down to appear for 2-3 consecutive dates, in case their depositions are not concluded. Also, in case any witness does not appear, or cannot be examined, the court shall indicate a fixed date for such purpose. The recording of deposition of witnesses shall then be taken up, after the scheduling exercise is complete. This court has appropriately carried out necessary amendments to the Draft Rules.
The court hereby places its appreciation and gratitude to the contributions and effort of the three amici Shri Siddharth Luthra, Shri R. Basanth (Senior Advocates) and Shri K. Parameshwar, Advocate - they gave valuable inputs and innumerable suggestions, considered all suggestions given by various stakeholders, reported to the court and made extremely useful submissions - the suo motu proceeding is disposed off.
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2021 (4) TMI 1269
TDS u/s 195 - disallowance made under the provisions of Section 40[a][i] - payments made by the appellant company to non-residents are in the nature of Royalty without deducting TDS - HELD THAT:- issue involved in this appeal has been put to rest in view of the decision rendered in ENGINEERING ANALYSISCENTRE OF EXCELLENCE PRIVATE LIMITED [2021 (3) TMI 138 - SUPREME COURT] and the issue involved in this appeal has been answered against the Revenue and in favour of the assessee.
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2021 (4) TMI 1268
Filing of vacancies of the High Court - there are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength - HELD THAT:- Learned Attorney General did not differ with the requirement of time bound schedule for filling the vacancies at every stage though he emphasised that the trigger for filling up of the vacancies is the recommendations made by the Chief Justices of the High Courts. However, once the recommendations are made, there are two stages at which the matter rests with the Government – the first when the Ministry processes the names; and the second post the Collegium of the Supreme Court taking a call in recommending such of the names as are approved by the Collegium.
Insofar as the Judiciary is concerned, the second stage after the recommendations are made by the Collegium of the High Courts is the time period taken by the Collegium of the Supreme Court in consulting the consultee Judge(s) to take a call on those names.
It would be advisable to follow the timelines prescribed - application disposed off.
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2021 (4) TMI 1267
Since the amendment has been brought about on account of the fact that the order dated 11.03.2021 has been passed by the respondent/revenue; we are inclined to allow the amendment sought by the petitioner.
Accordingly, the prayer made in the captioned application is allowed. Consequently, the amended memo of parties, list of dates and writ petition accompanied by an affidavit are, formally, taken on record.
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2021 (4) TMI 1266
Validity of assessment order - no effective opportunity was granted prior to passing of the impugned order - principles of natural justice - HELD THAT:- Post passing of the order, the petitioner has approached the Assessing Authority by way of a representation dated 19.03.2021, which appears to be in the nature of application under Section 84 of the Act.
Let Section 84 application be disposed on or before 09.06.2021 after hearing the petitioner and there shall be no recovery in the meantime - List on 09.06.2021.
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2021 (4) TMI 1265
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of pre-existing dispute or not - time limitation - principles of estoppel - novation of contract - HELD THAT:- A statement made before the arbitrator of both the parties not only amounts to an admission but also that principle of estoppel operates on the respondent/company for deviating from their own stand. It is also important to note that this statement which is made voluntarily by the Director of the respondent/company amounts to novation of the contract and casts a liability on the part of the respondent to make the payment as claimed in the petition.
The petitioners have made out their case on the aspect of limitation which has been triggered from the date of this e-mail, viz. 21.01.2015 till the date of filing, viz. 26.09.2017, which is within the period of three years.
The petition deserves to be admitted - petition admitted - moratorium declared.
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2021 (4) TMI 1264
Application under Section 226 (4) - Direct Tax Vivad Se Vishwas Act - urgency of the prayers made by the petitioners for consideration of the application under Section 226 (4) of the Income Tax Act, 1961 filed by the respondent no.2 submitting to the effect that the petitioners seek to avail of the Direct Tax Vivad Se Vishwas Act, 2020 - HELD THAT:- As considered appropriate to direct the learned Special Judge, CBI-01 seized of the proceedings in relation to RC No.06(A)/2006 (bearing new No.CC/R82/2019) to dispose of the application filed by the Income Tax Authority dated 23.08.2021, under Section 226 (4) of the Income Tax Act, 1961 by the date 26.04.2021.
A submission has been made on behalf of the CBI with reference to the aspect of the TCR in the matter having been requisitioned by this Court in an appeal preferred by the CBI assailing the orders dated 18.04.2015 and 23.09.2016 of the learned Special Judge, CBI-01 and it was thus submitted on behalf of the petitioners that the directions to the learned Special Judge, CBI-01 to dispose of the prayer under Section 226 (4) of the Income Tax Act, 1961 as moved by the Income Tax Authority would be made difficult in view of the pendency of the TCR before this Court, qua which, it is essential to observe that it is always open to the petitioners to seek redressal before this Court for the TCR to be placed before the learned Special Judge, CBI01 for disposal of the application under Section 226 (4) of the Income Tax Act, 1961, in relation to which, the prayer can always be made before the concerned Bench of this Court.
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2021 (4) TMI 1263
The Supreme Court of India disposed of the appeals in terms of the signed order, leaving all questions of law open. Pending applications, if any, were also disposed of.
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2021 (4) TMI 1262
Money Laundering - provisional order of attachment - extension of time limitation - petitioner argues that extension of limitation granted by the Supreme Court on various occasions, pertained only to limitations regarding proceedings and the stipulation under Section 5(3) of the 2002 Act is not covered by said limitation - HELD THAT:- The language of Section 5(3) of the 2002 Act is very clear as to the period of 180 days operating in respect of orders of attachment and says in positive language that such order of attachment shall cease to have effect after the expiry of such period. The said restriction/stipulation does not relate to any period of limitation prescribed under the general or special laws pertaining to institution or termination of “proceedings” but directly deals with the tenure of operation of the order of provisional attachment - the writ petition is required to be heard on its merits.
The matter shall next be enlisted for hearing fairly at the top of the list on May 12, 2021.
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2021 (4) TMI 1261
Seeking grant of bail - recovery from different persons and the value thereof is below ₹ 1 crore or not - bailable offence or not - HELD THAT:- The accused petitioner is in custody with effect from 4.3.2021 and, as such, for a period of 35 days as on date. Considering this the petitioners are granted bail. Accordingly, the accused-petitioner, shall be released on bail in connection with the case aforementioned on his furnishing bail bond of ₹ 25,000/- with two suitable sureties of the like amount, to the satisfaction of learned Chief Judicial Magistrate, Kamrup (Metro) at Guwahati.
Petition allowed.
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2021 (4) TMI 1260
Recovery proceedings - Petitioners are Banks and challenge orders encumbering properties that, according to them, have been offered to them as collateral by persons who have availed financial assistance - According to the revenue, the issuance of notice under Section 143(2) would create an automatic charge over the property by the petitioner and any subsequent alienation of the property by the petitioner would be liable to be set aside in light of the protection under Section 281 - Banks had initiated action under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short ‘SARFAESI Act’) and taken possession of the property thereafter under Section 13(4) thereof - HELD THAT:- . Section 281 states that any transaction of transfer engaged in after the commencement of proceedings, with the intention of defrauding the revenue and circumventing proceedings for recovery, would be construed as void as against any claim of tax or other sum payable by that assessee. However, bona fide transactions that have been entered into for adequate consideration, with the parties being unaware of the pendency of proceedings before the Income Tax authorities/without being put to notice, shall stand excluded from the rigour of the provision. Transactions engaged in with the sanction of the Assessing Officer would also be excluded from the application of the provision.
No merit in the submissions of the respondent to the effect that Section 281 constitutes a declaration of charge much less, one which is preferential to the revenue. The thrust of Section 281 is only a protection to a bona fide purchaser in cases where an errant assessee may seek to alienate property to circumvent anticipated recovery of outstanding arrears payable by him to the Income Tax Department. Nothing in Section 281 would support the submission that it, by itself creates a positive charge of property. The charge in this case was created by the Income Tax Department only after 27.03.2017 when the property was attached in terms of Rule 48 of the 2nd Schedule and duly communicated to the SRO.
A matter similar to the present one came up for consideration before the Andhra Pradesh and Telangana High Court (prior to bifurcation) in the case of ICICI Bank Ltd [2019 (3) TMI 701 - TELANGANA AND ANDHRA PRADESH HIGH COURT] - Conflicting claims to the same property were set up by the ICICI Bank and the Tax Recovery Officer. After considering the interpretation of Section 281 and the power of recovery under the 2nd Schedule to the Income Tax Act, the Bench states that the attachment in that case was prior to the attachment by the Income Tax Department and thus, held priority over the subsequent attachment. Following the ratio of the judgment of the Supreme Court in the case of Gangadhar Vishwanath Ranade [1998 (9) TMI 1 - SUPREME COURT] the claim of the Bank was allowed.
In this case the mortgage by the Bank is on 10.02.2014 and that by the Income tax Department, is post attachment, on 27.03.2017 only. The subsequent attachment thus fails in the light of Section 26E.
Incidentally, at the time when the above decision was rendered, Section 26E of the SARFAESI Act had not been notified, prompting the Bench to state at paragraph 6 of that decision (of the SCC online report) that the issue before them could have been resolved in a trice, had only the provisions of Section 26E been notified at the time when the decision was being rendered. The provisions of Section 26E have since been notified on 24.01.2020 and the benefit of the same is available for the present Writ Petitioners. WP allowed.
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2021 (4) TMI 1259
Seeking direction to the Liquidator to accept the claim of the Appellant as “other creditor” of the Corporate Debtor - seeking condonation of delay of 90 days in preferring the instant appeal arising from the rejection of the claim Submission on behalf of the Appellant - HELD THAT:- The two contracts dated 14.05.2013, bearing Contract No. CS-0370-162C-2- FCCOA-0015 and Contract No. CS-0370-162C-2-SC-COA-0016 are still subsisting and the same having been terminated by any mode is nobody’s case. Au contraire, it is Appellant’s own case that in the month of July 2019, the Liquidator had signed a “program” with the Appellant for supply of balance materials and execution of site works within a timeline in order to keep the Corporate Debtor a going concern - the claim of the Appellant is in contemplation of an event where the Corporate Debtor does not receive a bid as a going concern.
Admittedly, there has been delay in execution of the contract, the blame of which is being laid on the other party by the either side. However, the delay in execution of the said contract cannot form basis of a claim of such nature in a proceeding such as this, especially when such claim is contingent on Corporate Debtor not being sold as a going concern - furthermore, allowing the claim of the Applicant when the said contracts are still subsisting and the performance of which are underway would mean that the Appellant gains out of the contract by way of its performance as well as in the form of claim realised out of liquidation estate. The Appellant cannot have the cake and eat it too.
The prayer of the Appellant for condonation of delay of 90 days in preferring the instant appeal arising from the rejection of the claim of the Appellant by the liquidator becomes infructuous - Application dismissed.
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2021 (4) TMI 1258
Direction for working of Hon’ble Benches of this Court - covid-19 situation - HELD THAT:- In view of the curfew imposed by the GNCTD, and the extremely limited functioning of Courts, the routine matters would be adjourned en-bloc to the dates to be notified. Consequently, the advocates and the litigants would not be in a position to appear in the said matters, including those where stay, bail, parole have been granted by this Court, or the Courts Subordinate to this Court on or before 19.03.2021. As a result, interim orders operating in favour of the parties would start expiring on and from 19.04.2021.
The registration of the present Petition are directed as suo motu Writ Petition. The same be listed before Hon’ble the Chief Justice for constitution of an appropriate bench and for passing appropriate orders therein.
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2021 (4) TMI 1257
Petition be dismissed as withdrawn at this stage leaving it open to the petitioner to avail such remedy as may be available at appropriate stages.
Permission is granted. The petition is dismissed as withdrawn at this stage leaving it open to the petitioner to avail such remedy as may be available at appropriate stages.
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