SECOND FIR CAN BE QUASHED IF FIRST FIR IN RESPECT TO SAME INCIDENT HAS ALREADY BEEN REGISTERED: PUNJAB & HARYANA HIGH COURT - Business Guardian
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SECOND FIR CAN BE QUASHED IF FIRST FIR IN RESPECT TO SAME INCIDENT HAS ALREADY BEEN REGISTERED: PUNJAB & HARYANA HIGH COURT

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In a very significant observation, the Punjab and Haryana High Court in a learned, laudable, landmark and latest judgment titled Mr Monishankar Hazra and another v. State of Haryana and others and a connected petition in CRM-M-6692-2022(O&M) and CRM-M-6698-2022(O&M) have observed that in case an FIR with respect to an incident has already been registered, then a second FIR with respect to the same incident cannot be registered and in case, the same is registered then the High Court is well within its power to quash the second FIR. It must be noted that the single Judge Bench of Justice Vikas Bahl observed thus as it quashed an FIR against the Optum Global Solutions (India) Private Limited and its officials over cheating and forgery charges. The Court also observed that if an FIR does not disclose the essential requirements of the penal provision or does not disclose the essential requirements of the penal provision or does not disclose the commission of a cognizable offence, the same can be quashed at the initial stage.

To start with, this notable judgment authored by a single Judge bench comprising of Justice Vikas Bahl of the Punjab and Haryana High Court first and foremost points out in para 1 and here we shall state only key point that, “This order will dispose of the two petitions filed under Section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) to set aside/quash the order dated 15.12.2021 passed by the Chief Judicial Magistrate, Panchkula, in case bearing no. COMI/63/2021 titled as “Sharad Kothari vs. United Health Group Information Services &Ors.”, registered on 31.08.2021 and the consequential proceedings arising therefrom, including FIR bearing no.508 dated 23.12.2021 registered under Sections 120-B, 406, 409, 420, 465, 467, 468 and 471 of the Indian Penal Code (hereinafter referred to as “IPC”) at Police Station Sector 5, Panchkula. The first petition, i.e. CRM-M-6692-2022 has been filed by Monishankar Hazra and Sameer Bansal and the second petition, i.e. CRMM-6698-2022 has been filed by seven petitioners namely Optum Global Solutions (India) Private Limited through its authorised representative Mr.Prashant Sinha, Anurag Khosla, Tim Trujillo, Rajat Bansal, Gayatri Varma, John Santelli and Partha Sarathi Mishra. Since the impugned order in both the cases is the same and the issues involved and questions of law are also common, thus, both the cases are being taken up together and with the consent of all the parties, CRM-M-6692-2022 is taken up as the lead case and facts have been taken from the said petition.”

BACKGROUND/ FACTS OF THE CASE

While elaborating on background/facts of case, the Bench envisages in para 2 that, “Respondent no.2 had filed a complaint dated 27.08.2021 under Section 156(3) of the Cr.P.C. (Annexure P-28 page 539) against ten accused persons, including 9 petitioners in both the petitions, collectively. A prayer was made in the said complaint for issuance of directions as envisaged under Section 156(3) of the Cr.P.C. to the concerned Police Station for registration of an FIR under Sections 406, 409, 420, 465, 467, 468, 471 and 120-B IPC, on the allegations that the accused persons committed illegalities in order to procure a tender, floated by Haryana State Health Resource Centre (hereinafter referred to as “HSHRC”) for implementation of Hospital Information System (HIS) in favour of M/s United Health Group Information Services Pvt. Ltd.(hereinafter referred to as “UHGIS”). It had been alleged in the complaint that the complainant / respondent no.2 was an ex-employee of accused no.1-company and was appointed as DirectorBusiness Development vide appointment letter dated 09.12.2013 in accused no.1-company, which came to be known as M/s Optum Global Solutions India Limited after passing of the amalgamation order by the Hon’ble National Company Law Tribunal, Hyderabad on 20.03.2017. It has further been alleged that in the month of December, 2013, the Government of Haryana through HSHRC floated a tender/Request for Proposal (hereinafter referred to as (“RFP”) for implementation of HIS. As per the said tender, the bidders were required to be highly specialized in the field of ‘System Integration’ with minimum qualifications / requirements as prescribed under para 4.3 of Volume II of tender /RFP. Specific reference had been made to serial nos. 7 and 8 of said para 4.3. It has also been alleged that the award of contract was dependent upon the fulfillment of the qualifications as prescribed and in pursuance of the said tender, five companies submitted their cost bids to the HSHRC. The companies who had given their bid are as follows:-

S. No. Company name

1 IL & FS Technologies Limited

2 Hewlett-Packard India Sale Private Limited

3 Accenture Services Pvt Ltd.

4 United Health Group Information Systems Pvt. Ltd. (Accused no.1)

5 EY/NDSL

It had further been alleged that accused no.1-UHGIS was the 4th lowest bidder and by fabricating documents, managed to procure the tender. The same was procured by all the accused persons in connivance with each other and in collusion with some officials from HSHRC and accused no.1 had submitted its bid very cleverly, without the extracts of the audited balance sheet and profit and loss statement, as was required by HSHRC and without furnishing any certificate from its statutory auditor certifying that the company had a turnover of INR 100 crore from system integration services etc. and for reasons best known to the HSHRC, it still accepted the said tender. It has further been alleged that accused no.1 was incompetent to participate in the tender inasmuch as, the services which were required to be carried out, were never done by accused no.1 and even the same did not form a part of the Memorandum of Association of accused no.1-company and the said Memorandum of Association was amended vide resolution dated 29.04.2014, incorporating clauses 1B and 1C in the Objects Clause to include activities / services which were required to be carried out by the bidders. It had further been submitted that the tender bid was submitted on 13.03.2014 and the amendment in the Memorandum of Association was carried out subsequent to the same, i.e., on 29.04.2014. It had also been alleged that in order to fulfill the condition listed at serial no.8 of para 4.3 Volume II (supra) of the tender, which required the bidder to have experience demonstrated in networks of hospitals and not one / single hospital, the accused persons in collusion with each other, manipulated this requirement by preparing false documents, including two experience certificates, which were stated to be clearly fake and forged document as they were issued by M/s Optum Inc. USA (hereinafter referred to as “Optum US”) and the said experience certificate showed that UHGIS (accused no.1- company) had rendered service to M/s Optum Inc, USA in the year 2008 and 2009 whereas, Optum US itself came into existence on 17.09.2009.It has further been alleged that accused no.1 had not submitted any document to show that it had fulfilled the requirement of the HSHRC to the effect that it should have Rs.100 crore turnover for each year, i.e. 2008-09, 2009-10, 2010-11 and that respondent no.2 came to know about the entire scam/incident on 01.10.2015 when accused no.2-Sandeep Khurana in a drunken state disclosed to him the whole episode/incident in a restaurant. It has further been alleged that thereafter, respondent no.2 got an FIR no.419/2017 dated 18.08.2017 under Sections 66/66C of the IT Act lodged at Police Station Prashant Vihar, Rohini, New Delhi, regarding invasion of privacy of respondent no.2 and a complaint was also filed before the Director General of Police, Haryana which was marked to the Economic Offences Wing for enquiry/ investigation regarding which, a report was made by the ASI Prakash Chand from which, it was clear that the accused persons have repeatedly tried to thwart the investigation by not appearing on many occasions. It has also been alleged that the cause of action arose to the complainant on 13.03.2014 firstly, when the forged documents were supplied by the accused persons to the office of HSHRC Panchkula and then, again on 01.10.2015 and then, on 08.04.2016,as well as on 29.04.2016, cause of action continued as the complainant was made to resign from the accused-company. It had been stated that it is the Court in Panchkula which has the jurisdiction to entertain this matter and no such or similar petition except mentioned in the petition was filed or pending.”

To put things in perspective, the Bench then enunciates in para 3 that, “The Chief Judicial Magistrate, Panchkula, vide impugned order dated 15.12.2021 allowed the said application and directed the SHO, Sector 5 Panchkula to lodge the FIR. In the said order, the Chief Judicial Magistrate, Panchkula, had considered the interim report dated 22.07.2020 which was submitted by the Director General Health Services Haryana, Panchkula in which Sanjay Sethi, Assistant General Manager, HARTRON and Puneet Brar, Senior Consultant, HARTRON had made observations against the accused persons. Reliance was also placed upon the interim report of the Investigating Officer dated 01.09.2020. It was further observed that since respondent no.2 was also involved in bidding process on behalf of accused no.1 company, the Court was taking cognizance on the report filed by above said Sanjay Sethi and Puneet Brar. In pursuance of the same, above said FIR no.508 dated 23.12.2021 was registered and above said Sanjay Sethi and Puneet Brar were made as complainant. It is the above said order dated 15.12.2021, FIR dated 23.12.2021 and the subsequent proceedings arising therefrom which have been challenged by 9 accused persons by filing two separate petitions.”

CONCLUSION

Most remarkably, the Bench hastens to add in para 67 that, “That on the basis of above-said factors, this Court is of the opinion that the impugned order as well as the subsequent FIR arising therefrom, deserve to be quashed. Apart from the judgments which have been noticed hereinabove, the Hon’ble Supreme Court of India as well as various High Courts have repeatedly held that where the grounds, as are there in the present case, are made out then, the High Court can exercise its powers under Section 482 Cr.P.C to quash the proceedings as well as to set aside the impugned order. The Hon’ble Supreme Court of India in State of Haryana and others vs. Bhajan Lal and others (supra) has held as under:-

“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 482of 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. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the F.I.R. 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.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

In the above said case, the Hon’ble Supreme Court of India had enumerated categories of various cases, by way of illustrations, wherein power under Section 482 Cr.P.C. could be exercised either to prevent abuse of the process of any Court or to otherwise secure the ends of justice. It is held that the present case would fall within the said parameters moreso, category 1, 2, 3 and 7.”

Most significantly, the Bench minces no words to hold in para 68 that, “The Hon’ble Supreme Court in “T.T. Antony’s case (supra) has observed as under: –

“However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Criminal Procedure Code, 1973 It would clearly be beyond the purview of sections 154 and 156 Criminal Procedure Code, 1973 nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of a fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Criminal Procedure Code, 1973 or under Articles 226/227 of the Constitution.

xxx xxx xxx

The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible under the scheme of the provisions of the Criminal Procedure Code as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open of the investigating agency to seek permission in Crime No. 353/94 or 354/94 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law.”

A perusal of the above-reproduced judgment would show that it had been observed by the Hon’ble Supreme Court of India that in case, with respect to one incident an FIR already stands registered, then a second FIR with respect to the same incident cannot be registered and in case the same is registered then, the High Court while exercising its powers under Section 482 Cr.P.C, would be well within its rights to quash the second FIR. The same principle has been followed by the Hon’ble Supreme Court in the case of “Amitbhai Anil Chandra Shah’s case (supra). Thus, in a situation where a second FIR is registered with respect to the same incident on which an FIR has already been registered as in the present case, the petition for quashing of the second FIR should not be thrown out on the ground that the report under Section 173 CrPC has not been submitted.”

Relief:

Finally, the Bench then concludes by holding in para 71 that, “Keeping in view the eight grounds, as have been detailed in the preceding paragraphs and the facts and circumstances of the present case and the ratio of law laid down in the plethora of judgments referred to hereinabove, both the petitions i.e., CRM-M-6692/2022 and CRM-M 6698/ 2022 are allowed and the impugned order dated 15.12.2021 is set aside and FIR no.508/2021 dated 23.12.2021 registered under Sections 120B, 406, 409, 420, 465, 467, 468 and 471 of the IPC at Police Station Sector 5, Panchkula and all the subsequent proceedings arising therefrom, are quashed.

It is, however, clarified that the setting aside of the impugned order and quashing of the FIR and the subsequent proceedings as well as the observations made in the present case would not affect the proceedings / complaint which is pending before the Lokayukta, Haryana and also the proceedings pending before the Rohini Courts in New Delhi arising out of the FIR no.419 dated 18.08.2017 registered at Police Station Prashant Vihar, Delhi which had been registered in pursuance of the application dated 07.06.2017 filed under Section 156(3) Cr.P.C. by Respondent no.2 in the Court of Chief Metropolitan Magistrate, Rohini Courts, New Delhi.”

In conclusion, the Punjab and Haryana High Court has made it indisputably clear that the second FIR can be quashed if first FIR in respect to same incident has already been registered. The relevant case laws have already been discussed hereinabove. It merits no reiteration that Justice Vikas Bahl has painstakingly dwelt on a number of relevant cases and we have discussed here only the most important ones to make it abundantly clear that when can the second FIR be quashed.

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Legally Speaking

Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

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1 year ago

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September 15, 2022

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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.

The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.

In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.

While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.

The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.

Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.

The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.

Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.

In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.

It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.

Accordingly, the court will now hear the matter on 14 December.

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Legally Speaking

DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

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1 year ago

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September 15, 2022

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.

The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.

On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.

In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.

In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.

The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.

Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.

The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.

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Legally Speaking

SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

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1 year ago

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September 15, 2022

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.

The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.

The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.

It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”

The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.

In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.

However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.

Mr. Arvind Gupta, Advocate on Record has filled the present petition.

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Legally Speaking

Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court

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1 year ago

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September 15, 2022

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Don’t compare Turban, Kirpan with Hijab: SC

The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.

The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.

Also, the court imposed a cost of Rupees one lakh on Singh.

In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.

While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.

The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.

However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.

It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.

Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.

The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.

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Post-conviction compounding of offences is permissible: Himachal Pradesh High Court

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1 year ago

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September 5, 2022

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The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.

The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.

Thus, the petitioner had sought compounding of offences.

In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.

However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.

The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.

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‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’

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1 year ago

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September 5, 2022

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The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.

The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.

In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.

However, the court disallowed the claims on two grounds:

Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.

In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.

Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.

The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.

The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.

Accordingly, the court dismissed the petition.

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