Monday 14 October 2024
Tuesday 1 October 2024
A petition under Section 34 of the Arbitration Act, 1996 may be filed dependent on where the seat of arbitration is located.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. 9307 OF 2019(ARISING OUT OF SLP (CIVIL) NO.25618 OF 2018)BGS SGS SOMA JV …PetitionerVersusNHPC LTD. …RespondentWITHCIVIL APPEAL NO. 9308 OF 2019(ARISING OUT OF SLP (CIVIL) NO. 25848 OF 2018)WITHCIVIL APPEAL NO. 9309 OF 2019(ARISING OUT OF SLP (CIVIL) NO. 28062 OF 2018)JUDGMENT
100.However, the fact that in all the three appeals before us the proceed- ings were finally held at New Delhi, and the awards were signed in New Delhi, and not at Faridabad, would lead to the conclusion that both parties have chosen New Delhi as the “seat” of arbitration under Section 20(1) of the Arbitration Act, 1996. This being the case, both parties have, therefore, chosen that the Courts at New Delhi alone would have exclusive jurisdiction over the arbitral proceedings. There- fore, the fact that a part of the cause of action may have arisen at Faridabad would not be relevant once the “seat” has been chosen, which would then amount to an exclusive jurisdiction clause so far as Courts of the “seat” are concerned.
101.Consequently, the impugned judgment is set aside, and the Section 34 petition is ordered to be presented in the Courts in New Delhi, as was held by the learned Single Judge of the Special Commercial Court at Gurugram.
102.The appeals are allowed in the aforesaid terms.
Saturday 28 September 2024
Apex Court founds a Police Officer and an Addl. CJM guilty of having committed contempt of its anticpatory bail order. Inspite of release on anticpatory bail, police cusotdy petition filed by Police Officer and allowed by Addl. CJM
IN THE SUPREME COURT OF INDIA
INHERENT/CRIMINAL APPELLATE JURISDICTION
CONTEMPT PETITION(CIVIL) NO(S). OF 2024 (D. No. 1106 OF 2024)
IN SPECIAL LEAVE PETITION(CRL.) NO(S). 14489 OF 2023
TUSHARBHAI RAJNIKANTBHAI SHAH …..PETITIONER(S)
VERSUS
KAMAL DAYANI & ORS. …RESPONDENT(S)/ ALLEGED CONTEMNOR(S)
Discussion: - 28. Before proceeding to consider the rival submissions, at the outset, we may note that a bare perusal of the order under contempt dated 8th December, 2023 would leave no room for doubt that the interim protection of anticipatory bail granted by this Court to the petitioner was absolute, until modified or altered upon final disposal of the Special Leave Petition(Crl.) No. 14489 of 2023 which is still pending consideration before this Court. The language of the order was clear and unambiguous, hence, none of the contemnors-respondents could have entertained any doubt in their minds nor was there any scope for the interpretation that the petitioner could be remanded to police custody during the currency of the interim order dated 8th December, 2023
48. Criminal jurisprudence requires that before exercising the power to grant police custody remand, the Courts must apply judicial mind to the facts of the case so as to arrive at a satisfaction as to whether the police custody remand of the accused is genuinely required. The Courts are not expected to act as 60 messengers of the investigating agencies and the remand applications should not be allowed in a routine manner.
49. As discussed above, the FIR against the accused-petitioner
was pertaining to a dispute which prima facie appears to be of a
civil nature and hence, the learned Magistrate ought not to have
toed the line of the Investigating Officer while granting police
custody remand of the accused-petitioner.
54. We, prima facie feel that the contemnor-respondent No. 7 seems to have acted in defence of the police officials when she made a note on the complaint of custodial violence made by the petitioner on 16th December, 2023, that after personally examining the feet of the accused, she did not find any injury thereupon. Law requires that the moment the accused had made a complaint of torture in police custody, it was incumbent upon the concerned Magistrate to have got the accused subjected to medical examination as per the mandate of Section 54 CrPC. The formal complaint lodged by the petitioner herein was proceeded with by 8th Additional Chief Judicial Magistrate who took cognizance thereof on 22nd December, 2023 and directed that the complaint be posted for verification. The only permissible action as per law after cognizance had been taken on a private complaint, would be to record the statements of the complainant and his witnesses by taking recourse to the mandatory procedure prescribed under Sections 200 and 202 CrPC. However, in sheer disregard to the order dated 22nd December, 2023 passed by 8th Additional Chief Judicial Magistrate, the 6th ACJM(contemnor-respondent No.7) dismissed the complaint filed by the petitioner vide order dated 6th January, 2024 which has been rightly reversed by the High Court of Gujarat vide order dated 22nd February, 2024 passed in R/Criminal Revision Application No. 273 of 2024. This conduct of contemnor-respondent No. 7 gives a strong indication of her biased approach in the matter.
55. The arguments advanced by learned senior counsel appearing for the Additional Chief Secretary, Government of Gujarat as well as the High Court of Gujarat about the long-standing practice prevailing in the State, that the Investigating Officer(s) are given liberty to seek police custody remand of the accused after competent Court has granted anticipatory bail does not appeal to us for a moment. Such an interpretation does not appear to be in 64 consonance with the unambiguous position of law.
59.3 That the Investigating Officer, contemnorrespondent No. 4, Police Inspector acted in flagrant defiance and gross contempt of this Court’s order dated 8th December, 2023 by applying for police custody remand of the petitioner herein. The portrayal 69 made by the Investigating Officer in the remand application to claim that the accused-petitioner was not cooperating in the investigation was totally cooked up and a clear attempt to draw wool over the Court’s eyes. During subsistence of this Court’s order dated 8th December, 2023, there was neither any authority with the Investigating Officer to seek police custody remand of the accused nor was the prayer for remand justified in the backdrop of the fact that the FIR itself was lodged in relation to a civil dispute which arose from an oral agreement for sale of property. A clear misrepresentation was made in the remand application wherein, the Investigating Officer projected that the cheques issued by the accused-petitioner had to be recovered. It is an admitted position as per the FIR, that the cheques had been issued by the complainant to the accused-petitioner and not vice versa. By failing to test the truth of the complainant’s allegations regarding transmission of huge cash amount to the tune of Rs. 1.65 crores to the accused, the Investigating Officer acted in sheer ignorance to 70 the mandate of the Income Tax Act, 1961 as well as the provisions of PMLA. Admittedly, the Investigating Officer(contemnor-respondent No. 4) had only made investigation from the accused for a few hours on 12th December, 2023 and immediately thereafter, the police custody remand application came to be submitted. The notice for remand to the accused on 12th December 2023 does not indicate that he had not cooperated in the investigation. We are, therefore, inclined to hold that there was not even a shred of bona fide in the actions of the Investigating Officer(contemnor-respondent No.4) while seeking police custody remand of the accused on the purported ground of non-cooperation in investigation. The exercise of seeking police custody remand during currency of the interim protection granted to the petitioner was in sheer defiance of this Court’s order dated 8th December, 2023 and tantamounts to contempt on the face of the record. Hence, we have no hesitation in holding that while seeking for and procuring the police custody remand 71 of the accused in the teeth of the order dated 8th December, 2023, the Investigating Officer, R.Y. Raval, Police Inspector, Vesu Police Station, Surat(contemnor-respondent No. 4) is guilty of gross contempt.
59.4 That the explanation offered by 6th ACJM(contemnor-respondent No.7), that the order dated 13th December, 2023 granting police custody remand of the petitioner was passed in the bona fide exercise of jurisdiction, based on a genuine misunderstanding of the legal position does not appeal to us. In view of the findings recorded in preceding paras, it is clear that contemnor-respondent No. 7 acted with bias and in a high-handed manner while granting police custody remand of the accused. The reason offered by her that she was acting under a misconception owing to settled and prevailing practice in the State of Gujarat, is clearly in disregard to the order passed by this Court. The said plea does not hold water since the order under contempt dated 8th December, 2023 allowed only one interpretation i.e. 72 the accused-petitioner had to be released on bail in the event of arrest. The action of the contemnorrespondent No.7 in granting police custody remand of the petitioner and in failing to release him upon completion of the aforesaid period is clearly in teeth of this Court’s order dated 8th December, 2023 and tantamounts to contempt. The contemnor-respondent No. 7’s contumacious actions also contributed to the illegal detention of the petitioner for almost 48 hours after the period of police remand had come to an end
61. As a result of the above discussion, we hold R.Y. Raval, Police Inspector, Vesu Police Station, Surat(contemnorrespondent No.4) and Deepaben Sanjaykumar Thakar, 6 th Additional Chief Judicial Magistrate, Surat(contemnorrespondent No.7) guilty of having committed contempt of this Court’s order dated 8 th December, 2023.
Wednesday 18 September 2024
Supreme Court Pauses 'Bulldozer Actions', Orders That No Demolition Should Take Place Without Its Permission - However it does not apply to illegal encroachment of roads water bodies etc.,
S U P R E M E C O U R T O F I N D I A
Writ Petition(s)(Civil) No(s). 295/2022 JAMIAT ULAMA I HIND Petitioner(s) VERSUS NORTH DELHI MUNICIPAL CORPORATION & ORS.
As requested by Mr. Tushar Mehta, learned Solicitor General appearing for the respondent(s), list these matters on 01.10.2024 as first item.
2. Till the next date of hearing, we direct that there shall be no demolition anywhere across the country without seeking leave of this Court.
3. We further clarify that our order would not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law.
Tuesday 17 September 2024
Sand theft attracts 379 IPC and Section 3 and 4 of PDPP Act
REPORTABLE
CRIMINAL
APPEAL NO.1920 OF 2019 ARISING OUT OF S.L.P.(CRIMINAL) NO. 10707 OF 2019
..... APPELLANT(S)
VERSUS
THE STATE OF UTTAR PRADESH AND ANOTHER
.....RESPONDENT(S)
SANJIV KHANNA, J.
J U D G M E N T
3.
In brief, the facts of the case are that on the basis
of a complaint filed by one Mr. S.K.
Pal, Surveyor, Mines Department, District Mirzapur,
FIR No. 0289 dated 15th November 2018 was registered at Police Station,
Vindyachal, inter alia recording that on 2nd November 2018, during inspection of the mining site in Village Nandni, Tehsil Sadar, District Mirzapur,
the Nayab Tehsildar had noticed
illegal mining whereupon a report vide letter dated 12th November 2018 was submitted to the
Sub-Divisional Magistrate, Sadar. The
appellant is a Director of M/s. Kanwar Enterprises Pvt. Ltd., which was granted rights to excavate sand vide mining
lease over Plot No. 2/4, measuring 12.35 acre and Plot No. 2/5 measuring
12.35 acre in Village Nandni.
However, it is alleged that the appellant
was mining sand outside the permitted area in Village
Babhni numbered as 534/2 where he had illegally excavated
a pit 50 feet long,
50 feet wide and 2 meter deep. Consequently, the District
Magistrate had ordered
for immediate registration of the FIR under the aforesaid provisions.
4. Though
a number of contentions were raised before the High Court, the learned senior counsel for the appellant has during
the course of arguments before us
restricted his submissions to the violation
of Section 22 of the Mines Regulation Act and the legal effect thereof. Referring to the contents of the FIR, it is
submitted that the appellant has been
wrongly charge-sheeted by the police for
the offences, as at the best there was violation of Section 4, which is punishable under Section 21 of
the Mines Regulation Act. It is
highlighted that M/s. Kanwar Enterprises Pvt. Ltd. had held a valid lease for mining. As per Section
22 no court can take cognizance of the offences
under the Mines Regulation Act, except
on a complaint in writing by a person authorised by the Central or State Government. The State police not being authorised,
could not have filed the charge-sheet/complaint. The contention predicated on Section 22 of the Mines Regulation Act is made by relying
upon the judgment
of this Court in Jeewan Kumar Raut and Another v. Central Bureau of Investigation1. In the
written submissions filed by the appellant, a relatively new plea and contention has been raised
by relying upon the judgments of this Court in Belsund Sugar
Company Limited v. State of Bihar,2 Sharat Babu Digumarti v. Government of NCT
of Delhi3
and Suresh Nanda v. Central Bureau of Investigation4 to urge that the Mines Regulation
Act being a special statute, prosecution
for an offence under Section 379 of the IPC would not be maintainable. The judgment of this Court in State (NCT of Delhi) v. Sanjay.5, it is submitted, is distinguishable as the FIR for the offence against illegal sand mining
in Sanjay (supra) was registered suo moto due to non-production of any
document to establish mining rights
and therefore, the ratio in that case would apply
only to cases of illegal mining where the mining lease had already
been revoked or there was no subsisting mining lease.
5.
We find the submission of the appellant
to be untenable. In Sanjay (supra), a Division Bench of this Court had decided appeals preferred against the conflicting
judgments of the Delhi High Court,
Gujarat High Court, Kerala High Court, Calcutta High Court, Madras High Court and Jharkhand High Court on the question whether a person can be
prosecuted for the offences under Sections
379/114 and other provisions of the IPC on the allegations of illegal mining in view of Section 22 of the Mines Regulation Act, which reads as under:
“22. Cognizance of offences.— No court shall take cognizance of any offence punishable under
this Act or any rules made thereunder except upon complaint
in writing made by a person authorised in this behalf
by the Central Government or the State Government.”
After adverting to the provisions of the Code, namely, Sections 2(c), 2(d) and 2(h) which define
‘cognizable offence’, ‘complaint’ and ‘investigation’ respectively, this Court had referred
to Section 4 of
the Code, which reads
as under:
“4. Trial of offences
under the Indian Penal Code and other
laws.— (1)
All offences under the Indian Penal Code (45
of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the
provisions hereinafter contained.
Code was referred to elucidate that the police has the power to arrest without warrant in case of cognizable
offences. Sections 149 to 152 of
Chapter XI of the Code that require the police to prevent cognizable offences either by arrest or otherwise, etc. were referred, to hold that the
aforementioned provisions show that a police officer of his own authority
has the duty to prevent any injury
attempted to be committed to any public property or national assets and also to prosecute such persons in accordance with law.
this Court in Sanjay (supra) took
notice of the decision in H.N. Rishbud
v. State of Delhi6 wherein this
Court
has held that
a
defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure
relating to the taking of the
cognizance or trial. The cardinal principle of law as noted by this Court in Directorate of Enforcement v. Deepak Mahajan7 is that every law is designed to further
the ends of justice and should not
be frustrated on mere technicalities. The public trust doctrine was cited and applied to underscore the principle that certain resources like air, sea, water, forests
and minerals are of great importance
to the people as a whole and that the government is enjoined to hold such resources in trust for the benefit of the general public and to use them for their
benefit than to serve private interests.
6.
This Court in Sanjay (supra) has
cited several decisions wherein the
challenge to the prosecution on the ground that there can be no multiplicity of offences under
different enactments was resolved and answered by relying upon Section 26
of the General Clauses Act, which we would like to reproduce for the sake of convenience:
“69. Considering the principles of interpretation and the wordings used in Section 22, in our
considered opinion, the provision is not a complete and absolute bar for taking
action by the police for illegal and dishonestly committing theft of minerals including sand from the
riverbed. The Court shall take
judicial notice of the fact that over the years rivers in India have been affected
by the alarming rate of unrestricted
sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens
riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal
activities are not stopped by the
State and the police authorities of the State, it will cause serious repercussions as mentioned
hereinabove. It will not only change
the river hydrology but also will deplete the
groundwater levels. There cannot be any
dispute with regard to restrictions imposed
under the MMDR Act and remedy provided therein. In any case, where there is a mining activity
by any person in
contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the
powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute
that the Magistrate shall in such cases take cognizance on the basis of
the complaint filed before it by a duly
authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking
cognizance under the Act on the basis of the record submitted
by the police alleging
contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against
prosecution of a person except on a complaint made by the officer is attracted only when such person
is sought to be prosecuted for
contravention of Section 4 of the Act and not
for any act or omission which constitutes an offence under the Penal
Code.
7.
As noticed above, in the written
submissions the appellant has relied
upon Belsund
Sugar Company Limited (supra), Sharat Babu Digumarti (supra) and
Suresh
Nanda (supra) to contend that
where there is a special act dealing with a special subject, resort cannot be taken to a general act. The said submission has no force in view of the ratio in Sanjay (supra) as
quoted above which specifically
refers to Section 26 of the General Clauses Act and states that the offence
under Section 4 read with Section 21 of the Mines Regulation Act is different
from the offence
punishable under Section 379 of the IPC. Thus, they are two ‘different’ and not the ‘same offence’. It
would be relevant to state here that the Delhi High Court in its decision reported
as Sanjay v. State16, which was impugned in Sanjay (supra), had accepted an identical argument to hold that once
an offence is punishable under
Section 21 of the Mines Regulation Act, the offence would not be punishable under Section 379 of the
IPC. This reasoning was rejected by
this Court and the judgment of the Delhi High
Court was reversed.
The contention relying
on the same reasoning before
us, therefore, must be rejected.
8.
We would also reject the contention raised by the appellant in the written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378
of the IPC as sand is an immovable
property as per Section 3 (26) of the General Clauses Act. In the present case, sand had been excavated
and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the
earth, ergo, it is a movable property
or goods capable
of being stolen.
{See Explanation 1 to Section
378 of the IPC and Sanjay (supra) as quoted above}
11.
We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta
High Court in Seema Sarkar v. State17 wherein the High Court held the proceedings to
be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by
the police under Section 21(2) of the
Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided.
The High Court had further
observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have
already noted the decision of the Delhi High Court which had directed that the FIR should not be
treated as registered under Section
379 of the IPC but only under Section 21 of the Mines Regulation Act. These
decisions of the Calcutta High Court and the
Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the
expression ‘same offence’, to observe
that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are
different and distinct. The aforesaid
reasoning compels us to reject the contention of the appellant
that the action as impugned in the FIR is a mere violation of Section 4 which is an offence
cognizable only under
Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence
under Section 379 of the IPC. We would also observe that the violation
of Section 4 being a cognizable
offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section
13(3)(iv) of the TOHO Act.
12.
In view of the aforesaid discussion, we would uphold
the order of the High Court refusing
to set aside the prosecution and cognizance of the
offence taken by the learned Magistrate under
Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. We would,
however, clarify that prosecution and
cognizance under Section 21 read with Section 4 of the Mines Regulation Act will not be valid and justified in
the absence of the authorisation.
Further, our observations in deciding and
answering the legal issue before us should not be treated as findings on the factual allegations made
in the complaint. The trial court
would independently apply its mind to the factual allegations and decide the charge in accordance with
law. In light of the aforesaid observations, the appeal is partly allowed,
as we have upheld the prosecution and cognizance of the offence
under Section 379 of the IPC
and Sections 3 and 4 of the Prevention of Damage
to Public Property Act. There would be no order as to costs.
J. (S. ABDUL NAZEER)
J. (SANJIV KHANNA)
NEW DELHI; DECEMBER
18, 2019.
Subscribe to:
Posts (Atom)