Duty of Public Authority to act fairly.

Duty of Public Authority under article 14 f Constitution:

It is clear from the Board‟s conduct that it never responded to the letters written by Asiatic Steel; at least, no reply has been placed on record. Even Asiatic Steel‟s request for permission to carry-out the necessary clearance work at the cost of the board, was not responded to-either positively or negatively. Further, whenever any bidder approached the court complaining that the plot allotted was unusable, the Board decided, mostly contemporaneously, to refund the amount, even with interest. In the case of Asiatic Steel, however, when the demand was made for refund on 19.05.1998, the Board did not act,forcing the company to approach the court, firstly through a civil suit which was later withdrawn, and then in a writ petition.

Silence of public authority:

In the opinion of this court, the Board‟s complete silence in responding to Asiatic Steel’s demand for refund, coupled with the absence of any material placed on record by it suggesting that the complaints had no substance leaves it vulnerable to the charge of complete arbitrariness. The Board‟s conductor indifference in regard to the refund sought (in respect of which there was no meaningful argument on its part before the High Court) can be only on the premise that it wished the parties to approach the court, till a decision could be taken to refund the amounts received by it.

In this court‟s considered view, the Board’s action is entirely unacceptable. As a public body charged to uphold the rule of law, its conduct had to be fair and not arbitrary. If it had any meaningful justification for withholding the amount received from Asiatic Steel, such justification has not been highlighted ever. On the other hand, its conduct reveals that it wished that the parties should approach the court, before it took a decision. This behavior of deliberate inaction to force a citizen or a commercial concern to approach the court, rather than take a decision, justified on the anvil of reason (in the present case, a decision to refund) means that the Board acted in a discriminatory manner.

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Criticizing Government is illegal in State of Kerala

Free Speech???

Kerala Government has issued an ordinance amending the Police Act whereby any act of threatening, abusing, humiliating or defaming any person is made punishable. However there is no specific definition of these words chosen from moral vocabulary. Therefore the concerned police officer will be free to define these words and make arrests as per his or her whim and fancy.

Full Text of Ordinance

ORDINANCE No. 79 OF 2020

THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020

Promulgated by the Governor of Kerala in the Seventy-first Year of the Republic of India.

AN
ORDINANCE
further to amend the Kerala Police Act. 2011.

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Transfer of windiing up proceedings from High Court to NCLT

Locus Standi of Creditor:

If any creditor is aggrieved by any decision of the official liquidator, he is entitled under the 1956 Act to challenge the same before the Company Court. Once he does that, he becomes a party to the proceeding, even by the plain language of the section. Instead of asking a party to adopt such a circuitous route and then take recourse to the 5th proviso to section 434(1)(c), it would be better to recognise the right of such a party to seek transfer directly.

Object of Insolvency Act:

The object of IBC will be stultified if parallel proceedings are allowed to go on in different fora. If the Allahabad High Court is allowed to proceed with the winding up and NCLT is allowed to proceed with an enquiry into the application under Section 7 IBC, the entire object of IBC will be thrown to the winds.

Proceedings transferred:

Therefore, we are of the considered view that the petitioner ­herein will come within the definition of the expression “party” appearing in the 5th proviso to Clause (c) of Sub­section (1) of Section 434 of the Companies Act, 2013 and that the petitioner is entitled to seek a transfer of the pending winding up proceedings against the first respondent, to the NCLT. It is important to note that the restriction under Rules 5 and 6 of the Companies (Transfer of Pending Proceedings) Rules, 2016 relating to the stage at which a transfer could be ordered, has no application to the case of a transfer covered by the 5th proviso to clause (c) of sub­section (1) of Section 434. Therefore, the impugned order of the High court rejecting the petition for transfer on the basis of Rule 26 of the Companies (Court) Rules, 1959 is flawed.

[Source: KALEDONIA JUTE AND FIBRES PVT. LTD. v. AXIS NIRMAN AND INDUSTRIES LTD. decided by SC on 9th November 2020]

Challenge to Order Framing of Charge in Writ Jurisdiction

Whether an order on charge would be an interlocutory order for the purposes of Section 19(3)(c) PCA:

If contrary to the above law, at the stage of charge, the High Court adopts the approach of weighing probabilities and re-appreciate the material, it may be certainly a time consuming exercise. The legislative policy of expeditious final disposal of the trial is thus, hampered. Thus, even while reiterating the view that there is no bar to jurisdiction of the High Court to consider a challenge against an order of framing charge in exceptional situation for correcting a patent error of lack of jurisdiction, exercise of such jurisdiction has to be limited to rarest of rare cases.

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Abusing a person belonging to Scheduled Caste: Culpability

Offence under SC/ST Act:

Offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r)of the Act is not made out.

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Supreme Court grants bail to Arnab Goswami

The Supreme Court has passed following orders on 11 November 2020:

We are of the considered view that the High Court was in error in rejecting the applications for the grant of interim bail. We accordingly order and direct that Arnab Manoranjan Goswami, Feroz Mohammad Shaikh and Neetish Sarda shall be released on interim bail, subject to each of them executing a personal bond in the amount of Rs 50,000 to be executed before the Jail Superintendent.

(Emphasis Supplied)

The Supreme Court has kept the SLP(Crl) No. 005598 – 005598/2020 (Crl.A. No. 000742 – 000742/2020) pending for final orders on a later date.

Read the full order here:
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Power of Police to investigate after submission of closure report

Arnab Goswami vs. State of Maharashtra:

Maharashtra High Court has decided to dismiss the Application seeking interim relief of Stay on arrest holding that there is no illegality in arrest and continued investigation after the submission of closure report due to the reasons stated by police, is not illegal. Hence there is no merit in the contention that arrest is illegal. It observed:

Bail in Writ Jurisdiction:

No doubt, regard being had to the parameters of quashing and the self-restraint imposed by law, this court has jurisdiction to quash the investigation and pass appropriate interim orders as thought apposite in law. However, the powers are to be exercised sparingly and that too, in rare and appropriate cases and in extreme circumstances to prevent abuse of process of law.
44. In State of Telangana vs. Habib Abdullah Jeelani & others (supra), their Lordships have observed that the Courts have to ensure such a power under Article 226 of the Constitution of India is not to be exercised liberally so as to convert it into section 438 of Cr.P.C. proceedings.

45. The principle stated therein will equally apply to the exercise of this Court’s power under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure while considering the applications for
bail since the petitioner is already in Judicial custody. The legislature has provided specific remedy under Section 439 Cr.P.C. for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with section 482 of Code of Criminal Procedure.

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Ingredients for offence of abetment of suicide

Offence of Abetment to commit suicide:

Suicide note naming the accused as abettor if sufficient:

As pointed out by the High Court, of course PW-1 to PW-5 have spoken about the borrowing of money by the deceased and also the execution of the promissory note. The sheet anchor of the prosecution’s case to prove the guilt of the accused is the suicide note (M.O.1)-written by the deceased. On perusal of suicide note (M.O.1), it is seen that in M.O.1 the deceased has written about the financial difficulties faced by him and his inability to meet the financial crunch and also his inability to repay the same. The tenor of M.O.1 only shows that the deceased was subjected to pressure for payment and was facing the financial difficulty. In M.O.1 (letter) there is nothing to indicate that there was instigation by the appellant-accused which had driven the deceased to take the extreme step of committing suicide.

The essential ingredients of the offence under Section 306 I.P.C. are:

(i) the abetment;

(ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide.

The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide.

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Contempt of court

The right to approach Supreme Court under Article 32 of the Constitution of India is itself a fundamental right.

Assistant Secretary, Maharashtra Vidhan Mandal Sachivalaya issued this letter to Arnab Goswami, Editor of Republic TV, as follows :

“You were informed that the proceedings of the House are confidential………….despite this, it has been observed that you have presented the proceedings of the House before the Supreme Court on October 8, 2020. No prior permission was taken from the Speaker of the Maharashtra Assembly before presenting such proceedings in court. You have knowingly breached the orders of the Speaker of Maharashtra Assembly and your actions amount to breach of confidentiality. This is definitely a serious matter and amounts to contempt,…….”

Article 32(1) of the Constitution of India reads as under :

“32(1). The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”

There is no doubt that if a citizen of India is deterred in any case from approaching Supreme Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country.

Show Cause for contempt:

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