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Through: Defendants No. 1 and 2 ex-parte vide
order dated 19.09.2022.
Defendants No. 3 and 4 ex-parte vide order dated
Suit decreed qua Defendants No. 5 and 6 vide
order dated 06.02.2019.
I.A. 15936/2022 (under Order XIII-A Rules 3 and 6(1)(a) read with Order
VIII Rule 10 read with Section 151 CPC, by Plaintiffs)
1. Present application has been filed under Order XIII-A CPC, as
amended by Commercial Courts, Commercial Division and Commercial
Appellate Division of High Courts Act, 2015.
2. This suit is filed for permanent injunction restraining infringement and
dilution of trademark, trade name, passing off, infringement of copyright,
unfair competition, delivery-up, rendition of accounts, damages and costs
etc. The prayer clause in the present suit is as under:-
“48. It is, therefore, respectfully prayed that this Hon’ble
Court may be pleased to grant the following reliefs in favour of
the Plaintiffs and against the Defendants:
(i) A decree of permanent injunction restraining the
Defendants, their partners or proprietors, principal officers,
servants, agents and distributors and all others acting on its
behalf as the case may be from manufacturing, selling,
offering for sale, advertising, directly or indirectly dealing
in any manner with products including but not limited to
tobacco products, pan masala products, confectionary
and/or any other goods and/or services using the mark
trademarks RAJNI, RAJNIGANDHA
other mark deceptively similar thereto leading to:
a) Infringement of Plaintiffs’ trademarks RAJNI,
RAJNIGANDHA , overall
colour scheme and unique trade dress in relation to their
b) Passing off of the Defendants’ products (including but
not limited to pan masala products, supari, chillum etc)
as emanating from the Plaintiffs;
c) Infringement of copyright vested in the original artistic
works in the Plaintiffs label, packaging, overall get-up
d) Dilution of Plaintiff’s well-known trademark
RAJNIGANDHA , overall
colour scheme and unique trade dress;
e) Unfair Competition vis a vis Plaintiffs’ well-known
trademarks RAJNIGANDHA ,
RAJNI overall colour scheme and unique trade dress;
(ii) An order for the delivery-up of all impugned materials of
the Defendants, including the Defendants’ products, their
packaging, container boxes, labels, wrappers, stickers, and
stationery or any other material of the Defendants
containing the mark RAJNIPAAN trade
(colour) marks including trade dress and the colour
combination of Plaintiff;
(iv) An order for rendition of accounts of profits illegally
earned by the Defendants on account of use of the
trademark mark RAJNIPAAN ;, and a decree
for the amount so found be passed in favour of Plaintiff;
(v) An order for damages in the present proceedings;
(vi) An order for costs in the present proceeding.”
3. When the suit was filed Plaintiffs had arrayed six Defendants and vide
order dated 29.11.2018, this Court granted an ex-parte ad interim injunction
in favour of the Plaintiffs and against the Defendants. Relevant portion of
the order is as under:-
“Consequently, till further orders, the defendants, their
partners, proprietors, directors, principals, agents, servants,
masters, affiliates, associates, distributors, licensees and all
others acting on their behalf directly or indirectly are
restrained from manufacturing, selling, offering for sale,
advertising directly or indirectly dealing in any manner with
products and services including but not limited to pan masala
products, confectionary and/or any other goods and/or services
using marks/trade dress RAJNI PAAN ,
RAJNIPAAN, plaintiffs’ trademark RAJNIGANDHA
, including trade dress, copyright vested
in RAJNIGANDHA label or any other mark deceptively similar
to the plaintiffs.”
4. On receiving summons, Defendant No. 5, Mr. Lucky Gupta,
proprietor of Defendant No. 6 i.e., Hookah Zone made a statement before the
Court on 06.02.2019 that Defendants No. 5 and 6 did not wish to contest the
proceedings and upon recording the undertaking of the counsel for
Defendants No. 5 and 6, a decree in favour of the Plaintiffs and against
Defendants No. 5 and 6 was passed by the Court. Relevant part of the order
“…Learned counsel for defendant nos.5 & 6 states that the said
defendants have neither infringed the plaintiffs' trademark nor
copyright and are willing to suffer a decree in terms of prayer
48 (i) (a), (b) and (c) of the plaint.
In view of the aforesaid statement/ undertaking, learned counsel
for the plaintiffs does not wish to press the present suit for any
other or further relief against defendant nos.5 &6.
Consequently, the statement/undertaking given by learned
counsel for defendant nos. 5 &6 is accepted by this Court and
the said defendants are held bound by the same.”
5. Order sheets indicate that there was no appearance on behalf of
Defendants No. 3 and 4, despite service through several modes, including
dasti. Vide order dated 15.07.2019 Defendants No. 3 and 4 were proceeded
ex parte and the interim injunction was confirmed qua them.
6. Thereafter, as service on Defendant No. 1, Mr. Youssef Anis Mehio,
Chairman and General Manager of Defendant No. 2, Mya International/ Mya
Flavours could not be effected by ordinary modes except email, Plaintiffs
filed an application for substituted service, which was allowed on
21.01.2021. Despite publication, none appeared for Defendants No. 1 and 2
and they were proceeded ex-parte vide order dated 19.09.2022.
7. It is the case of the Plaintiffs that they are a part of the Dharampal
Satyapal Group (DS Group), which is a multi-diversified conglomerate,
founded in the year 1929 and have a strong presence in high growth sectors
such as Food & Beverages, Confectionary, Hospitality, Mouth Fresheners,
Pan Masala, Tobacco, Agro Forestry, Rubber Thread and Infrastructure.
8. It is averred that Plaintiffs’ predecessors adopted the trademark
“RAJNI” in 1980 in respect of pan masalas, supari etc. Thereafter, Plaintiffs
extended their range of products and adopted the trademark
“RAJNIGANDHA” in the year 1983 in respect of flavoured pan masalas.
The trademarks are registered as under and the registrations are valid and
Application Date of
9. It is averred that the RAJNIGANDHA products being Plaintiffs’
flagship product and the world’s largest selling premium flavoured pan
masala are sold in a unique packaging having a distinct layout, getup and
colour scheme. Consumers around the world associate the trademark
RAJNIGANDHA exclusively with the Plaintiffs and none else. The unique
and distinctive characteristics of the trade dress as brought out in the plaint
Essential features of RAJNIGANDHA PAN MASALA
product packaging
Dark Royal Blue colour used as the base colour for the
2) A world map across the face and back of the pouch
3) Rajnigandha written in red in an artistic device with a ghost
4) Flavoured Pan Masala written in white in an oblong device
5) The tagline at the bottom of the front face “Superb in
Freshness and Taste”
6) A small device with RG written at the bottom of the pouch.
7) A silver box at the back of the packaging with the relevant
packaging details.
10. It is stated that this Court vide judgment dated 13.02.2014, in suit
titled Dharampal Satyapal Limited vs. Suneel Kumar Rajput & Anr.
[CS(OS) 381/2012] declared the mark “Rajnigandha” as a well-known
trademark, under Section 2(1)(zb) read with Section 2(1)(zg) of the Trade
Marks Act, 1999 (hereinafter referred to as the ‘Act’).
11. It is the case of the Plaintiffs that they are owners of copyright in the
unique ‘artistic work’ under Section 2(c) of the Copyright Act, 1957 and
entitled to exclusive rights under Section 14 of the said Act. It is stated that
Plaintiffs have invested huge amounts of money and efforts to advertise and
promote their product under the trademark ‘RAJNIGANDHA’ and its
constituent trade-dress. For the financial year 2017-2018, total sales revenue
for the product, under the trademark ‘RAJNIGANDHA’ clocked over
INR 2757,72,35,867.68/- and expenditure of INR 32,62,65,949.00/- was
incurred for advertising goods under the mark ‘RAJNIGANDHA’, by way
of promotion in the newspapers, magazines, internet, hoardings, and
Television commercials.
12. Plaintiffs assert that they gained knowledge of the infringing activities
of the Defendants in the third week of September 2018, when during a
market surveillance in and around the areas of New Delhi, they came across
the impugned product RAJNIPAAN, being sold in a nearly identical trade
dress . Investigations into the impugned product further
revealed the wide availability of the impugned product across Delhi as well
as on third party online market places such as www.flipkart.com,
www.amazon.com, www.easysmoke.in and www.smokinn.com.
13. I have heard learned counsel for the Plaintiffs and examined the
contentions raised.
14. Plaintiffs are registered proprietors of the trademark RAJNIGANDHA
and have filed the Certificate of Registration in this regard which is valid
and subsisting. No evidence to the contrary has been produced by the
Defendants who have chosen to abstain from the proceedings. By virtue of
provisions of Section 28 of the Act, Plaintiffs have the exclusive right to use
the trademark in relation to the goods in respect of which it is registered as
well as to obtain relief in respect of infringement.
15. Having analysed the competing marks and the impugned
label/packaging, this court is of the opinion that there is deceptive similarity
between them. Court finds that the packaging of the impugned product, i.e.,
has been designed in an identical colour scheme, font and
labels, to give an overall look and feel of the Plaintiffs’ products under the
RAJNIGANDHA marks, which, as rightly contended by the Plaintiffs, has
been done intentionally to trade off the significant goodwill and reputation
of the Plaintiffs in their RAJNIGANDHA marks. It is obvious that there is a
dishonest adoption by the Defendants and Plaintiffs have made out a case of
infringement and passing off.
16. The trademark RAJNIGANDHA has been declared as a well-known
mark by this Court and is entitled to a high degree of protection. The
impugned mark is visually and structurally deceptively similar to the
Plaintiffs’ trademark. A table representing the marks of the Plaintiffs and
Defendants is reproduced hereinbelow:
Manner of use by the Plaintiffs Manner of use by the Defendants
17. There is no gainsaying that the imitation, adoption and use of the
nearly identical trademark, trade name logo and colour scheme by the
Defendants is with the intent to cause confusion and create an impression
amongst consumers that the Defendants have a direct nexus/affiliation with
the Plaintiffs, or have been granted a license by the Plaintiffs in relation to
their products and/or are doing business endorsed by the Plaintiffs. It is a
settled proposition of law that if the Court finds that there is imitation, no
further evidence is required to establish that Plaintiffs’ rights are violated, as
held by the Supreme Court in Kaviraj Pandit Durga Dutt Sharma vs.
Navratana Pharmaceutical Laboratories [(1965) 1 SCR 737] as under:-
Expressed in another way, if the essential features of the trade
mark of the plaintiff have been adopted by the defendant, the
fact that the get-up, packing and other writing or marks on the
goods or on the packets in which he offers his goods for sale
show marked differences, or indicate clearly a trade origin
different from that of the registered proprietor of the mark
would be immaterial; whereas in the case of passing off, the
defendant may escape liability if he can show that the added
matter is sufficient to distinguish his goods from those of the
plaintiff.”
18. This Court finds that Defendants have mischievously and deliberately
adopted a deceptively similar mark and have only replaced ‘GANDHA’ with
‘PAAN’ with an intention to ride upon goodwill and reputation established
by the Plaintiffs. In fact, the principle of ‘initial interest confusion’ is also
attracted in the present case, which is posited on the assumption that
‘infringement can be based upon confusion that creates initial consumer
interest, even though no actual sale is finally created as a result of the
confusion. Most Courts now recognise the initial interest confusion theory as
a form of likelihood of confusion which can trigger a finding of
infringement.’ [Ref: McCarthy Vol 4, 23:6].
19. Given that the trademark RAJNIGANDHA is a “well-known” mark as
defined under Section 2(1)(zg) of the Act and entitled to a high degree of
protection, even in cases of dissimilar goods the owner of the mark is
required to be shielded. Present case stands on a better footing, as the
impugned goods of the Defendants are Chillum flavours, registered in
Class 34 and the product of the Plaintiffs is Pan Masala, also registered in
Class 34. The goods are allied and cognate and the triple identity test is
satisfied as the trademark is nearly identical, goods are allied and cognate
and the trade channels are identical with same consumer base. In this
context, this Court relies on the judgment in Tata Sons Ltd. v. Manoj Dodia
& Ors., 2011 SCC OnLine Del 1520, where the Court held that:
“20. Since the trademark TATA is a well known trademark, use
of the aforesaid mark by the defendant on the products being
sold by him also constitutes infringement within the meaning of
Section 29(4) of the Trademarks Act, 1999 since by using the
trademark TATA, he obviously has tried to take an unfair
advantage by encashing upon the brand quality and goodwill,
which the mark TATA enjoys in the market. Since the defendant
has not come forward to contest the suit, the presumption is that
use of the mark A-ONE TATA by him is not bona fide, but is
deliberate, intended to encash the popularity and reputation,
which TATA brand enjoys. Such use by the defendant is likely to
be detrimental to the reputation and distinctive character of the
registered trademark TATA of the plaintiff company because if
this mark is allowed to be used on the products, which do not
originate from TATA group of companies, that may diminish the
ability of the trademark TATA to identify the source of the
goods in respect of which this trademark is used, besides
lowering its reputation in case the quality of the goods is not of
expected standard.”
20. Having examined the averments made in the plaint along with the
documents filed and the contentions of the Plaintiffs as well as looking to the
fact that Defendants No. 1 to 4 are ex parte and decree has been passed
against Defendants No. 5 and 6, it appears that Defendants No. 1 to 4 have
no real prospect of defending the claim, having chosen to stay away from the
proceedings despite service. In these circumstances, Plaintiffs are entitled to
a decree under Order XIII-A CPC, as amended by Commercial Courts,
Commercial Division and Commercial Appellate Division of High Courts
Act, 2015, which empowers this Court to pass a summary judgment, without
recording evidence, if it appears that Defendants have no real prospect of
defending the claims.
21. Plaintiffs have sought damages, however, this Court finds that no
evidence has been led to substantiate the claim. No stocks have been
recovered or seized from the premises by the Local Commissioner appointed
by the Court, at the time of grant of interim injunction. On account of lack of
evidence with respect to the quantum of damages, this Court is constrained
to decline the said relief in light of the judgment of Division Bench of this
Court in Hindustan Unilever Limited v. Reckitt Benckiser India, 207
(2014) DLT 713 (DB). In this context, I may also allude to another judgment
of this Court in CS(COMM) 48/2015 titled as Super Cassettes Industries
Private Limited v. HRCN Cable Network, relevant passage from which is as
“19. However, this court is not satisfied on the evidence led in
the present case that the compensation awarded is inadequate
in the circumstances having regard to the three categories in
Rookes v. Barnard, [1964] 1 All ER 367 and also the five
principles in Cassell & Co. Ltd. v. Broome, 1972 AC 1027. In
the event punitive damages are awarded in the present case, it
would be an ad-hoc judge centric award of damages, which the
Division bench specifically prohibited in Hindustan Unilever
22. However, in view of the fact that Defendant Nos. 1, 2, 3 and 4 are
guilty of infringement by dishonestly adopting nearly identical trademark
and identical packaging, trade-dress, etc., and have chosen to deliberately
stay away from the proceedings, despite service, for which repeated efforts
had been made by the Plaintiffs, this Court is of the view that Plaintiffs are
entitled to notional damages, in terms of the judgment in Indian Performing
Right Society v. Debashis Patnaik, (2007) 34 PTC 201. Plaintiffs are also
entitled to costs in view of the judgment of the Supreme Court in Uflex Ltd.
v. Government of Tamil Nadu, Civil Appeal Nos. 4862-4863/2021, decided
on 17.09.2021 as well as in terms of the Commercial Courts Act, 2015 and
Delhi High Court (Original Side) Rules, 2018 read with Delhi High Court
23. In the light of the aforesaid facts and circumstances, suit is decreed in
favour of the Plaintiffs and against Defendants No. 1 to 4 in terms of para
48(i) (a) and (c) of the prayer clause of the plaint. Decree of damages is
passed for a sum of Rs. 3,00,000/-. Further, Plaintiffs would be entitled to
actual costs, which would include Court fee, recoverable jointly from
Defendants No. 1 to 4. Plaintiffs shall file their bill of costs in terms of Rule
5 of Chapter XXIII of the Delhi High Court (Original Side) Rules, 2018 on
or before 30.10.2022. As and when the same is filed, the matter will be listed
before the Taxing Officer for computation of costs.
24. Decree sheet be drawn up accordingly qua Defendants No. 1 to 4.
25. Suit is disposed of in the above terms.
26. Present application stands disposed of accordingly.
27. Date of 18.01.2023 stands cancelled.
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The Delhi High Court recently passed a decree in favour of Dharampal Satyapal Limited - the manufacturers of the iconic pan masala Rajnigandha and permanently halted the production, sale or promotion of any product under the trademark 'RAJNI PAAN',
Holding that the defendants had intentionally attempted to "trade off the significant goodwill and reputation of the plaintiffs", the Court directed them to pay Rs 3 lakhs in damages. In 2018, the Court had granted an ex-parte ad interim injunction in the case.
A Single Judge Bench of Justice Jyoti Singh, allowing an application filed by the plaintiff for ex-parte summary judgement under Order XIII-A of the Code of Civil Procedure, 1908, said:
"It appears that Defendants No. 1 to 4 have no real prospect of defending the claim, having chosen to stay away from the proceedings despite service. In these circumstances, Plaintiffs are entitled to a decree under Order XIII-A CPC, as amended by Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, which empowers this Court to pass a summary judgment, without recording evidence, if it appears that Defendants have no real prospect of defending the claims."
The plaintiff had filed the suit for permanent injunction restraining infringement and dilution of its trademark and trade name. In September 2018, the company during a market surveillance had come across 'Rajnipaan' products - it also had identical trade dress. Further investigations revealed their wide availability on e-commerce sites. The company then approached the court and was granted interim relief on 29.11.2018.
The plaintiff averred that Rajnigandha, which is their flagship product, is sold in "a unique packaging having a distinct layout, getup and colour scheme". Consumers around the world associate the trademark 'RAJNIGANDHA' exclusively with the plaintiff, it was asserted.
In the final order, the Court held that a case of infringement of trademark and passing off has been made out. The defendants had dishonestly chosen to adopt a deceptively similar trademark in respect of identical products in order to pass them off as manufactured by the plaintiff, the Court concluded.
It observed:
"The packaging of the impugned product has been designed in an identical colour scheme, font and labels, to give an overall look and feel of the Plaintiffs' products under the RAJNIGANDHA marks, which, as rightly contended by the Plaintiffs, has been done intentionally to trade off the significant goodwill and reputation of the Plaintiffs in their RAJNIGANDHA marks. It is obvious that there is a dishonest adoption by the Defendants and Plaintiffs have made out a case of infringement and passing off".
The court further said the imitation, adoption and use of the nearly identical trademark, trade name logo and colour scheme by the Defendants is with the intent to cause confusion and create an impression amongst consumers that the Defendants have a direct nexus or affiliation with the Plaintiffs.
Justice Singh further noted that once a court finds that there is imitation, no further evidence is required to establish the violation of the plaintiff's rights in an action for infringement.
On this point, the Court relied on the decision of the Supreme Court in Kaviraj Pandit Durga Dutt Sharma v. Navratana Pharmaceutical Laboratories. The principle of 'initial interest confusion' is also attracted in the case, said the court.
"This Court finds that Defendants have mischievously and deliberately adopted a deceptively similar mark and have only replaced 'GANDHA' with 'PAAN' with an intention to ride upon goodwill and reputation established by the Plaintiffs," it said.
Justice Singh also said Rajnigandha has been previously declared as a well-known trademark by the court and is entitled to a higher degree of protection. The impugned mark is visually and structurally deceptively similar to the plaintiff's mark, the court added.
"Given that the trademark RAJNIGANDHA is a "well-known" mark as defined under Section 2(1)(zg) of the Act and entitled to a high degree of protection, even in cases of dissimilar goods the owner of the mark is required to be shielded," said the court.
It further said, "Present case stands on a better footing, as the impugned goods of the Defendants are Chillum flavours, registered in Class 34 and the product of the Plaintiffs is Pan Masala, also registered in Class 34. The goods are allied and cognate and the triple identity test is satisfied as the trademark is nearly identical, goods are allied and cognate and the trade channels are identical with same consumer base."
The Court, while declining the relief sought by the plaintiff to award damages on account of the lack of evidence, held that they were entitled to notional damages and costs. The Court observed –
"However, in view of the fact that Defendant Nos. 1, 2, 3 and 4 are guilty of infringement by dishonestly adopting nearly identical trademark and identical packaging, trade-dress, etc., and have chosen to deliberately stay away from the proceedings, despite service, for which repeated efforts had been made by the Plaintiffs, this Court is of the view that Plaintiffs are entitled to notional damages…Plaintiffs are also entitled to costs."
Finally, the Court issued the following order:
"In the light of the aforesaid facts and circumstances, suit is decreed in favour of the Plaintiffs and against Defendants No. 1 to 4 in terms of para 48(i) (a) and (c) of the prayer clause of the plaint. Decree of damages is passed for a sum of Rs. 3,00,000/-. Further, Plaintiffs would be entitled to CS(COMM) 1255/2018 Page 16 of 16 actual costs, which would include Court fee, recoverable jointly from Defendants No. 1 to 4."
Title: Dharampal Satyapal Limited & Anr. v. Mr. Youssef Anis Mehio & Ors.
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दिल्ली हाईकोर्ट ने हाल ही में प्रतिष्ठित पान मसाला रजनीगंधा के निर्माता धर्मपाल सत्यपाल लिमिटेड के पक्ष में आदेश पारित किया और ट्रेडमार्क 'रजनी पान' के तहत किसी भी उत्पाद के उत्पादन, बिक्री या प्रचार को स्थायी रूप से रोक दिया।
यह मानते हुए कि प्रतिवादियों ने जानबूझकर "वादी की महत्वपूर्ण सद्भावना और प्रतिष्ठा का लाभ लेने" का प्रयास किया, अदालत ने उन्हें हर्जाने में तीन लाख रुपये का भुगतान करने का निर्देश दिया। 2018 में कोर्ट ने मामले में एकपक्षीय अंतरिम निषेधाज्ञा दी थी।
जस्टिस ज्योति सिंह की एकल न्यायाधीश खंडपीठ ने नागरिक प्रक्रिया संहिता, 1908 के आदेश XIII-A के तहत पक्षीय निर्णय के लिए वादी द्वारा दायर आवेदन की अनुमति देते हुए कहा:
"ऐसा प्रतीत होता है कि प्रतिवादी नंबर 1 से 4 के पास दावे का बचाव करने की कोई वास्तविक संभावना नहीं है। उन्होंने सर्विस के बावजूद कार्यवाही से दूर रहना चुना है। इन परिस्थितियों में वादी आदेश XIII-A CPC के तहत डिक्री के हकदार हैं, जैसा कि वाणिज्यिक न्यायालय, वाणिज्यिक प्रभाग और हाईकोर्ट अधिनियम, 2015 के वाणिज्यिक अपीलीय प्रभाग द्वारा संशोधित है, जो इस न्यायालय को साक्ष्य दर्ज किए बिना निर्णय पारित करने का अधिकार देता है। यदि ऐसा प्रतीत होता है कि प्रतिवादियों के पास दावों का बचाव करने की कोई वास्तविक संभावना नहीं है।
वादी ने अपने ट्रेडमार्क और व्यापार नाम के उल्लंघन और कमजोर पड़ने को रोकने के लिए स्थायी निषेधाज्ञा के लिए मुकदमा दायर किया। सितंबर, 2018 में बाजार की निगरानी के दौरान कंपनी को 'रजनीपान' उत्पाद मिला- इसमें समान ट्रेड ड्रेसिंग भी है। आगे की जांच में ई-कॉमर्स साइटों पर उनकी व्यापक उपलब्धता का पता चला। कंपनी ने तब अदालत का दरवाजा खटखटाया और 29.11.2018 को अंतरिम राहत दी गई।
वादी ने दावा किया कि रजनीगंधा उनका प्रमुख उत्पाद है। वह "विशिष्ट पैकेजिंग में अलग लेआउट, गेटअप और रंग योजना" में बेचा जाता है। दुनिया भर के उपभोक्ता ट्रेडमार्क 'रजनीगंधा' को विशेष रूप से वादी के साथ जोड़ते हैं।
अपने आदेश में कोर्ट ने माना कि ट्रेडमार्क के उल्लंघन और पासिंग ऑफ का मामला बनाया गया। अदालत ने निष्कर्ष निकाला कि प्रतिवादियों ने बेईमानी से समान उत्पादों के संबंध में भ्रामक समान ट्रेडमार्क अपनाने के लिए चुना ताकि उन्हें वादी द्वारा निर्मित प्रसिद्धि का लाभ मिल सके।
यह कहा गया,
"आक्षेपित उत्पाद की पैकेजिंग को रजनीगंधा ट्रेडमार्क के तहत वादी के उत्पादों का समग्र रूप और अनुभव देने के लिए समान रंग प्लेन, फ़ॉन्ट और लेबल में डिज़ाइन किया गया है, जैसा कि वादी द्वारा सही कहा गया कि यह जानबूझकर किया गया। यह स्पष्ट है कि प्रतिवादियों द्वारा बेईमानी से उक्त ट्रेडमार्क का उपोयग किया गया है और वादी ने उल्लंघन और पारित होने का मामला बनाया है।"
अदालत ने आगे कहा कि प्रतिवादियों द्वारा लगभग समान ट्रेडमार्क, व्यापार नाम लोगो और रंग योजना की नकल करने और उपयोग का उद्देश्य भ्रम पैदा करना और उपभोक्ताओं के बीच यह धारणा बनाना है कि प्रतिवादियों का वादी के साथ सीधा संबंध या संबद्धता है।
जस्टिस सिंह ने आगे कहा कि एक बार जब अदालत को पता चलता है कि ट्रेडमार्क नकल किया गया है तो उल्लंघन की कार्रवाई में वादी के अधिकारों के उल्लंघन को स्थापित करने के लिए किसी और सबूत की आवश्यकता नहीं है।
इस बिंदु पर न्यायालय ने कविराज पंडित दुर्गा दत्त शर्मा बनाम नवरत्न फार्मास्युटिकल लेबोरेटरीज में सुप्रीम कोर्ट के निर्णय पर भरोसा किया। अदालत ने कहा कि मामले में 'प्रारंभिक रुचि भ्रम' का सिद्धांत भी आकर्षित होता है।
अदालत ने कहा,
"इस अदालत ने पाया कि प्रतिवादियों ने शरारती और जानबूझकर भ्रामक समान ट्रेडमार्क अपनाया है और वादी द्वारा स्थापित सद्भावना और प्रतिष्ठा का लाभ लेने के इरादे से केवल 'गांध' को 'पान' से बदल दिया है।"
जस्टिस सिंह ने यह भी कहा कि रजनीगंधा को पहले अदालत द्वारा प्रसिद्ध ट्रेडमार्क के रूप में घोषित किया गया और वह उच्च स्तर की सुरक्षा का हकदार है। अदालत ने कहा कि लगाया गया निशान नेत्रहीन और संरचनात्मक रूप से भ्रामक रूप से वादी के ट्रेडमार्क के समान है।
अदालत ने कहा,
"यह देखते हुए कि ट्रेडमार्क रजनीगंधा "प्रसिद्ध" ट्रेडमार्क है जैसा कि अधिनियम की धारा 2(1)(zg) के तहत परिभाषित किया गया है, इसलिए यह उच्च स्तर की सुरक्षा का हकदार है। यहां तक कि भिन्न वस्तुओं के मामलों में परिरक्षित होने के लिए ट्रेडमार्क के मालिक की आवश्यकता होती है।"
इसने आगे कहा,
"वर्तमान मामला बेहतर स्तर पर है, क्योंकि प्रतिवादियों का आरोपी माल चिलम फ्लेवर है, जो क्लास 34 में रजिस्टर्ड है और वादी का उत्पाद पान मसाला है, जिसे क्लास 34 में भी रजिस्टर्ड किया गया। माल संबद्ध और संगत हैं। इसकी पहचान ट्रायल सही है, क्योंकि ट्रेडमार्क लगभग समान है और व्यापार चैनल समान उपभोक्ता आधार के समान हैं।"
कोर्ट ने सबूतों की कमी के कारण वादी द्वारा हर्जाना देने के लिए मांगी गई राहत को अस्वीकार करते हुए कहा कि वे नुकसान और लागत के हकदार है।
कोर्ट ने कहा,
"हालांकि, इस तथ्य को ध्यान में रखते हुए कि प्रतिवादी नंबर 1, 2, 3 और 4 बेईमानी से लगभग समान ट्रेडमार्क और समान पैकेजिंग आदि को अपनाने के उल्लंघन के दोषी हैं और जानबूझकर कार्यवाही से दूर रहने का विकल्प चुना है, जिसके लिए वादी द्वारा बार-बार प्रयास किए गए। इस न्यायालय का विचार है कि वादी काल्पनिक हर्जाने के हकदार हैं ... वादी भी लागत के हकदार हैं।"
न्यायालय ने निम्नलिखित आदेश जारी किया:
"उपरोक्त तथ्यों और परिस्थितियों के आलोक में वादी के पक्ष में और प्रतिवादी नंबर 1 से 4 के खिलाफ वादी के प्रार्थना खंड के पैरा 48 (i) (ए) और (सी) के संदर्भ में फैसला सुनाया जाता है। 3,00,000/- की राशि के लिए हर्जाने की डिक्री पारित की जाती है। इसके अलावा, वादी वास्तविक लागतों के सीएस (सीओएमएम) 1255/2018 के हकदार होंगे, जिसमें कोर्ट फीस शामिल होगी, जो प्रतिवादी नंबर 1 से 4 तक संयुक्त रूप से वसूली योग्य होगा।"
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1. The petitioner, who is a serving officer of the Delhi Higher Judicial
Services, and is currently posted as the Additional District Judge- 02 South
District Saket Courts New Delhi, has approached this Court being aggrieved
by the refusal of the respondent nos. 1 to 3 in reimbursing in full the
expenses incurred by him for his medical treatment, while he was admitted
at the respondent no.5/hospital, between 22.04.2021 to 07.06.2021, on
account of Covid-19.
2. Learned senior counsel for the petitioner submits that the respondent
nos.1 to 3 do not dispute the fact that the petitioner was undergoing
treatment for Covid-19 at the respondent no.5/hospital during the said
period. It is also undisputed that since at that stage, there were no hospital
beds available for his treatment in an empanelled hospital in the NCT of
Delhi, the petitioner due his dropping levels of oxygen , had to be rushed to
the nearest hospital, being the respondent no.5/hospital, where he remained
on ventilator for a period of three weeks. The petitioner, who was in a
helpless state at that stage, had no other option but to pay the entire amount
of Rs. 24,02,380/- as demanded by respondent no.5, against appropriate
receipts. The respondent nos.1 to 3, have however, on the basis of the
recommendations made by the Technical Standing Committee constituted
by the respondent nos. 1 and 2, reimbursed only a sum of Rs.7,08,500/-. The
respondent nos. 1 to 3 have refused to pay the balance sum of Rs.16,93,880/-
to the petitioner on the ground that this amount was charged by the
respondent no.5 by ignoring the rates prescribed under the circular dated
20.06.2020 issued by the Government of NCT of Delhi
(GNCTD)/respondent no.1, fixing the charges leviable for treatment of
patients suffering from Covid-19.
3. He submits that the petitioner cannot be faulted or penalised for the
respondent no.5 charging amounts higher than what was prescribed by the
respondent nos.1 to 3 and in case, the respondent no.5 has acted in violation
of the circular dated 20.06.2020, it is for the respondent nos.1 to 3 to take
action against the respondent no.5, and make recoveries, if any, from the
said respondent. In support of his plea, that once it is admitted that the entire
sum of Rs.24,02,380/- was spent by the petitioner for his medical treatment,
which he was compelled to take from respondent no.5 on account of the
grave threat to his life, and would therefore be entitled to reimbursement of
the entire amount, he places reliance on the decisions of this Court in Sqn.
Commander Randeep Kumar Rana vs. Union of India, (2004) SCC Online
Del 333 and B.R. Goel and Ors. Vs. Union of India and Ors., 2006 (92)
4. On the other hand, Mrs.Ahlawat, learned counsel for respondent nos.1
to 3, while not really disputing any of the aforesaid facts, submits that the
respondent no.5 should be directed to explain before this Court as to why it
has not abided by the circular dated 20.06.2020 issued by the respondent
no.1. She further submits that the said respondent, who has charged the
petitioner way above the rates prescribed in the circular dated 20.06.2020,
should be directed to refund the excessive amounts charged from the
petitioner.
5. Having considered the submissions of learned counsel for the parties,
and perused the record, I find that the respondent nos. 1 to 3 are not really
disputing that the petitioner was in compelling circumstances, and in a grave
medical emergency forced to take treatment from respondent no.5, and has
paid a sum of Rs.24,04,380/- for his treatment between 22.04.2021 to
07.06.2021. The only justification sought to be given for respondent nos. 1
to 3, for not reimbursing the entire amount to the petitioner, is that the
respondent no.5 had not abided by the circular dated 20.06.2020 issued by
the GNCTD. In the light of this stand taken by respondent nos. 1to 3, it is
evident that the parties are ad idem on the factual position and, therefore, no
counter affidavit is called for. The writ petition, is accordingly, taken up for
disposal today itself.
6. Having noted the only defence taken by the respondents for not
reimbursing the entire amounts to the petitioner, who has not only battled
with the deadly Covid-19 after remaining on ventilator for over three
weeks, but has also been struggling to seek reimbursement of the amount
spent by him in a grave medical emergency. Undoubtedly, respondent nos.1
to 3 are justified in urging that the respondent no.5 had charged much
beyond what was prescribed in the circular dated 20.06.2020 issued by the
GNCTD, and it is only because of the said over charging that the petitioner
had to incur much higher expenses than what have been reimbursed to him
by the respondent nos. 1 to 3. However, the fact remains that during April
and May, 2021, when the residents of Delhi were not only struggling to get
hospital beds, but there was also a huge shortage of oxygen, the petitioner,
had no other option but to take treatment at respondent no.5, and has
thankfully survived. One shudders to think what fate the petitioner would
have met if he had not, at that point, been treated at respondent no.5
hospital.
7. The petitioner, who had to spend his hard-earned savings, while
undergoing treatment to save his life, cannot be simply told that, since
respondent no.5 has failed to abide by the circular dated 20.06.2020 issued
by the GNCTD, he should seek refund from the said hospital which saved
his life. This Court does not deem it appropriate or necessary to delve into
the validity of the circular dated 20.06.2020, in the present petition, where
an officer of Delhi Higher Judicial Service is seeking simpliciter
reimbursement of the amount for the bona fide expenses incurred by him for
treatment at the respondent no.5 hospital for Covid-19, when the city was
engulfed with the second wave of the pandemic. I am, therefore, unable to
accept Mrs.Ahlawat’s plea that the respondent no.5 should be directed to
explain its stand in the present writ petition regarding its action of charging
amounts higher than the ones prescribed in the circular dated 20.06.2020, or
should be directed to refund the amount of Rs. 16,93,880/-.
8. In this regard, reference may be made to the decision of this Court in
Sqn. Commander Randeep Kumar Rana (supra), wherein the Division
Bench while dealing with a case, where the hospital had charged over and
above package rates, held that the employer was under an obligation to pay
to the government employee, and could make appropriate recoveries in
accordance with law, from the hospital which had overcharged him. The
relevant extract reads as under:
“5. We have given our careful considerations to the arguments
advanced by learned counsel for both the parties. It is not denied that
the treatment taken at Escorts Hospital was pursuant to the
recommendation made by the Safdarjung Hospital which is a
Government hospital. Naturally, when a small child is to be treated
for Ventrical Septal Defect involving open heart surgery, a specialised
hospital and its services are required. Therefore, once the respondent
themselves have recommended the treatment to be taken by the
Escorts Hospital, they cannot deny the full reimbursement on the
basis that the charges incurred by the petitioner over and above the
package rate which the respondent has agreed with the said hospital
cannot be reimbursed. At page 12 of the paper-book there is a letter
conveying permission by the respondent to the petitioner to undertake
specialised treatment from recognised private diagnostic centre.
There is another letter of the respondent at pages 22-23 of the paper-
book in which it has been admitted that Escorts Heart Institute and
Research Centre was also one of the hospitals which the petitioner
was entitled for treatment. Now we come to the plea which has been
taken by the respondent in the counter affidavit. It has been contended
in para 11 of the counter affidavit that it is the duty of the citizens to
see and ensure that such recognised hospital do not charge excess of
the package rates. How a citizen can ensure that a hospital does not
charge over and above the package rate? The power to lay down
guidelines is with the respondent. A citizen is a mere spectator to what
State authority do and decide. If the hospital has charged over and
above the package rate, the respondent is under an obligation to pay
to such charges as the petitioner has incurred over package rates at
the first instance and if in law state can recover from the hospital
concerned, they may do so but they cannot deny their liability to pay
to the Government employee who is entitled for medical
reimbursement.”
9. In the light of the aforesaid, I have no hesitation in holding that the
respondent nos.1 to 3 ought to forthwith reimburse the petitioner by paying
him the differential amount of Rs.16,93,880/-, and if permissible, recover
the same from the respondent no.5. It is however made clear that this Court
has not expressed any opinion on the validity of the circular dated
20.06.2020 and therefore, it will be open for the respondent nos.1 to 3 to
pursue its remedy as per law, against respondent no.5, including taking
penal action, and recovery of any amount which it perceives has been
charged in excess.
10. The writ petition is, accordingly, allowed by directing the respondent
nos.1 to 3 to pay within four weeks the balance amount of Rs.16,93,880/- as
noted in the communication dated 02.05.2022 (Annexure P-13) issued by
the respondent no.3 to the petitioner.
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The Delhi High Court on Tuesday directed the Delhi Government to pay over Rs. 16 lakhs to a senior judicial officer, who is an Additional District Judge in Saket Courts, as reimbursement for the expenses incurred by him for his COVID-19 treatment last year.
ADJ Dinesh Kumar was admitted in the city's PSRI Hospital between April 22 to June 7, 2021 after contracting COVID-19 during the second wave. He remained there on a ventilator for three weeks. While he had to pay Rs. 24,02,380 to the hospital, the government reimbursed only Rs.7,08,500 on the ground that the hospital had ignored the charges fixed by it for treatment of patients suffering from COVID-19.
Justice Rekha Palli said undoubtedly the authorities are justified in urging that the hospital had charged much beyond what was prescribed in the circular dated 20.06.2020 issued by the GNCTD, and it is only because of the said over charging that the petitioner had to incur much higher expenses than what have been reimbursed to him.
"However, the fact remains that during April and May, 2021, when the residents of Delhi were not only struggling to get hospital beds, but there was also a huge shortage of oxygen, the petitioner had no other option but to take treatment at respondent no.5, and has thankfully survived. One shudders to think what fate the petitioner would have met if he had not, at that point, been treated at respondent no.5 hospital," said the court.
Allowing the plea, the court observed that the judge, who had to spend his hard-earned savings for COVID-19 treatment to save his life, cannot be simply told that he should seek refund from the hospital since it failed to abide by the Delhi government's circular.
"This Court does not deem it appropriate or necessary to delve into the validity of the circular dated 20.06.2020, in the present petition, where an officer of Delhi Higher Judicial Service is seeking simpliciter reimbursement of the amount for the bona fide expenses incurred by him for treatment at the respondent no.5 hospital for Covid-19, when the city was engulfed with the second wave of the pandemic," said the court.
Justice Palli however rejected Delhi Government's submission that the hospital should be directed to explain its stand regarding its action of charging higher amounts than the ones prescribed in the circular or that it should be directed to refund the balance amount.
Referring to the high court's ruling in Sqn. Commander Randeep Kumar Rana vs. Union of India, the court said a division bench while dealing with a case, has held the employer was under an obligation to pay to the government employee, and could make appropriate recoveries in accordance with law, from the hospital which had overcharged him.
"In the light of the aforesaid, I have no hesitation in holding that the respondent nos.1 to 3 ought to forthwith reimburse the petitioner by paying him the differential amount of Rs.16,93,880/-, and if permissible, recover the same from the respondent no.5," the court said.
However, Justice Palli clarified that the court has not expressed any opinion on the validity of the circular and said it will be open for the authorities to pursue legal remedy against the hospital "including taking penal action" and "recovery of any amount charged in excess."
"The writ petition is, accordingly, allowed by directing the respondent nos.1 to 3 to pay within four weeks the balance amount of Rs.16,93,880/- as noted in the communication dated 02.05.2022 issued by the respondent no.3 to the petitioner," the court said.
Senior Advocate J.P. Sengh, representing Kumar, earlier argued there were no hospital beds available for his treatment in any of the empanelled hospitals of the government and due to his dropping levels of oxygen, he had to be rushed to the nearest hospital.
"The petitioner, who was in a helpless state at that stage, had no other option but to pay the entire amount of Rs. 24,02,380/- as demanded by respondent no.5, against appropriate receipts," Sengh submitted.
Sengh argued that the judicial officer cannot be faulted or penalised for the act of the hospital charging amounts higher than what was prescribed by the authorities. He submitted that it was for the concerned authorities to take action against the hospital in case it had acted in violation of the circular in question.
On the other hand, the Delhi Government submitted that the hospital should be directed to explain as to why it had not abided by the Delhi Government's circular. "The said respondent, who has charged the petitioner way above the rates prescribed in the circular dated 20.06.2020, should be directed to refund the excessive amounts charged from the petitioner," advocate Avnish Ahlawat submitted.
Title: DINESH KUMAR v. GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI & ORS.
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दिल्ली हाईकोर्ट (Delhi High Court) ने मंगलवार को दिल्ली सरकार को एक वरिष्ठ न्यायिक अधिकारी, जो साकेत न्यायालयों में एक अतिरिक्त जिला न्यायाधीश हैं, को पिछले साल उनके COVID-19 उपचार के लिए उनके द्वारा किए गए खर्चों की प्रतिपूर्ति के रूप में 16 लाख रुपये से अधिक का भुगतान करने का निर्देश दिया।
एडीजे दिनेश कुमार को COVID-19 की दूसरी लहर के दौरान 22 अप्रैल से 7 जून, 2021 के बीच शहर के PSRI अस्पताल में भर्ती कराया गया था। वहां वे तीन हफ्ते तक वेंटीलेटर पर रहे। जबकि उन्हें अस्पताल को 24,02,380 रुपये देने थे। सरकार ने केवल 7,08,500 रुपये की प्रतिपूर्ति इस आधार पर की कि अस्पताल ने COVID-19 से पीड़ित रोगियों के इलाज के लिए निर्धारित शुल्क की अनदेखी की है।
जस्टिस रेखा पल्ली ने कहा कि निस्संदेह अधिकारियों का यह आग्रह करना उचित है कि अस्पताल ने जीएनसीटीडी द्वारा जारी परिपत्र दिनांक 20.06.2020 में निर्धारित राशि से अधिक फीस लिया था, और यह केवल उक्त अधिक फीस के कारण ही है कि याचिकाकर्ता को उसकी प्रतिपूर्ति की तुलना में अधिक खर्च करना पड़ा।
अदालत ने कहा,
"तथ्य यह है कि अप्रैल और मई, 2021 के दौरान, जब दिल्ली के निवासी न केवल अस्पताल के बिस्तर पाने के लिए संघर्ष कर रहे थे, बल्कि ऑक्सीजन की भारी कमी भी थी, याचिकाकर्ता के पास प्रतिवादी के पास इलाज कराने के अलावा कोई विकल्प नहीं था और शुक्र है कि वह बच गए। यह सोचकर डर लगता है कि याचिकाकर्ता का क्या हश्र होता अगर वह उस समय प्रतिवादी नंबर 5 अस्पताल में इलाज नहीं कराता।"
याचिका को स्वीकार करते हुए, अदालत ने कहा कि न्यायाधीश, जिन्हें अपनी जान बचाने के लिए COVID-19 के इलाज के लिए अपनी गाढ़ी कमाई खर्च करनी पड़ी, को आसानी से यह नहीं कहा जा सकता है कि उन्हें अस्पताल से रिफंड मांगना चाहिए क्योंकि यह दिल्ली के नियमों का पालन करने में विफल रहा है।
कोर्ट ने कहा,
"यह न्यायालय वर्तमान याचिका में दिनांक 20.06.2020 के सर्कुलर की वैधता में तल्लीन करना उचित या आवश्यक नहीं मानता है, जहां दिल्ली उच्च न्यायिक सेवा का एक अधिकारी द्वारा किए गए वास्तविक खर्चों के लिए राशि की सरल प्रतिपूर्ति की मांग कर रहा है।"
अदालत ने कहा कि जब शहर महामारी की दूसरी लहर से घिरा हुआ था, तब उसे कोविड-19 के लिए प्रतिवादी संख्या 5 अस्पताल में इलाज के लिए भेजा गया था।
जस्टिस पल्ली ने हालांकि दिल्ली सरकार की इस दलील को खारिज कर दिया कि अस्पताल को निर्देश दिया जाना चाहिए कि वह सर्कुलर में निर्धारित राशि से अधिक राशि चार्ज करने की अपनी कार्रवाई के बारे में अपना रुख स्पष्ट करे या उसे शेष राशि वापस करने का निर्देश दिया जाए।
कमांडर रणदीप कुमार राणा बनाम भारत संघ मामले में उच्च न्यायालय के फैसले का हवाला देते हुए अदालत ने कहा कि एक मामले की सुनवाई करते हुए एक खंडपीठ ने कहा है कि नियोक्ता सरकारी कर्मचारी को भुगतान करने के लिए बाध्य था, और अस्पताल से कानून के अनुसार उचित वसूली कर सकता था जिसने उसे ओवरचार्ज कर दिया था।
अदालत ने कहा,
"पूर्वोक्त के आलोक में, मुझे यह मानने में कोई हिचकिचाहट नहीं है कि प्रतिवादी संख्या 1 से 3 को याचिकाकर्ता को तुरंत 16,93,880/- रुपये का भुगतान करके प्रतिपूर्ति करनी चाहिए, और यदि अनुमति हो, तो उसे प्रतिवादी संख्या 5 से वसूल करना चाहिए। "
जस्टिस पल्ली ने स्पष्ट किया कि अदालत ने सर्कुलर की वैधता पर कोई राय व्यक्त नहीं की है और कहा है कि अधिकारियों के पास अस्पताल के खिलाफ दंडात्मक कार्रवाई करने सहित कानूनी उपाय करने और अधिक वसूल की गई किसी भी राशि की वसूली" करने का अधिकार होगा।
अदालत ने कहा,
"रिट याचिका, तदनुसार, प्रतिवादी संख्या 1 से 3 को चार सप्ताह के भीतर 16,93,880/- रुपये की शेष राशि का भुगतान करने का निर्देश देकर अनुमति दी जाती है, जैसा कि प्रतिवादी संख्या 3 द्वारा जारी संचार दिनांक 02.05.2022 में उल्लेख किया गया है।"
कुमार का प्रतिनिधित्व कर रहे सीनियर वकील जे.पी. सेंघ ने पहले तर्क दिया कि सरकार के किसी भी पैनलबद्ध अस्पतालों में उनके इलाज के लिए अस्पताल के बिस्तर उपलब्ध नहीं थे और उनके ऑक्सीजन के स्तर में कमी के कारण उन्हें निकटतम अस्पताल ले जाना पड़ा।
सेंघ ने प्रस्तुत किया,
"याचिकाकर्ता, जो उस चरण में एक असहाय अवस्था में था, के पास 24,02,380 रुपये की पूरी राशि का भुगतान करने के अलावा कोई अन्य विकल्प नहीं था, जैसा कि प्रतिवादी संख्या 5 द्वारा उचित रसीदों के खिलाफ मांग की गई थी।"
सेंघ ने तर्क दिया कि अधिकारियों द्वारा निर्धारित राशि से अधिक राशि वसूलने के लिए न्यायिक अधिकारी को दोष या दंडित नहीं किया जा सकता है। उन्होंने प्रस्तुत किया कि यदि संबंधित सर्कुलर का उल्लंघन किया गया है तो संबंधित अधिकारियों को अस्पताल के खिलाफ कार्रवाई करनी चाहिए।
दूसरी ओर, दिल्ली सरकार ने कहा कि अस्पताल को यह बताने के लिए निर्देशित किया जाना चाहिए कि उसने दिल्ली सरकार के सर्कुलर का पालन क्यों नहीं किया।
वकील अवनीश अहलावत ने कहा,
"उक्त प्रतिवादी, जिसने 20.06.2020 के सर्कुलर में निर्धारित दरों से अधिक फीस लिया है, को याचिकाकर्ता से वसूल की गई अत्यधिक राशि वापस करने का निर्देश दिया जाना चाहिए।"
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This is the second petition under Section 438 of the Criminal
Procedure Code for the grant of anticipatory bail to the petitioner in case
FIR No.134 dated 08.03.2021, under Sections 420, 467, 468, 471 and
120-B of the Indian Penal Code, 1860, registered at Police Station
At the outset, it would be relevant to note that after the
dismissal of anticipatory bail application by the Additional Sessions
Judge, Panipat, vide order dated 06.01.2022 (Annexure P-2), the
petitioner had approached this Court for the grant of concession of
anticipatory bail by filing CRM-M-2416-2022, in which, the following
"Present: Mr. Ajay Ghangas, Advocate for the petitioner.
Prayer in the present petition is for grant of anticipatory bail to
the petitioner in FIR No.134 dated 08.03.2021 registered under
Sections 420, 467, 468, 471, 120-B of the Indian Penal Code, 1860 at
After arguing for sometime, learned counsel for the petitioner
seeks permission of this Court to withdraw the present petition and
states that the petitioner is ready to surrender before the police within
a period of 10 days from today.
Learned counsel for the petitioner has further made a prayer
that in case, the petitioner surrenders before the police within a period
of 10 days from today and files an application for grant of regular bail
after surrender, the same be decided as expeditiously as possible
preferably within a period of five days from the date of filing of the
said application.
In view of the statement made by learned counsel for the
petitioner, the present petition is dismissed as withdrawn.
In case, after surrendering before the police within a period of
10 days from today, the petitioner files an application for grant of
regular bail, the trial Court is requested to decide the same as
expeditiously as possible preferably within a period of five days from
the date of filing of the said application.
Perusal of the above order would show that when the first
anticipatory bail petition came up for hearing before this Court, the
learned counsel for the petitioner, after arguing for some time, had sought
permission to withdraw the said petition and had also made a statement
that the petitioner was ready to surrender before the police within a period
of 10 days from the date of the passing of the order dated 21.01.2022.
Since this Court, after hearing the abovesaid first anticipatory
bail petition, was not inclined to grant the same, thus, learned counsel for
the petitioner had made the above-said prayer to get his bail petition
decided expeditiously after his surrender before the police within the said
period of 10 days. Instead of complying with the statement made by
learned counsel for the petitioner at the time of hearing of order dated
21.01.2022, to surrender before the police within a period of 10 days, the
petitioner has chosen to file the present second anticipatory petition,
which has been drafted on 28.02.2022, after the lapse of the said period of
10 days and has came up for hearing today.
Perusal of the entire petition would show that no reason has
been given to justify the non-compliance of the statement made on behalf
of the petitioner at the time of passing of the order dated 21.01.2022. On
21.01.2022, when the first petition for anticipatory bail was withdrawn,
the petitioner had an apprehension of arrest. The petitioner's anticipatory
bail had already been rejected by the Additional Sessions Judge, Panipat
vide order dated 06.01.2022 (P-2) and thus, the withdrawal of the first
anticipatory bail application was apparently to avoid a detailed adverse
order. This Court is of the opinion that the filing of the present second
anticipatory bail petition filed by the different counsel is not only non-
maintainable, but is also misconceived and thus, deserves to be dismissed
with costs.
This Court is of the view that there is a stark difference
between filing of subsequent/successive regular bail applications or for
suspension of sentence and filing of subsequent/successive anticipatory
bail applications. In the case of regular bail applications, where a person
is already in custody, any subsequent regular bail application filed, even
after the first has been withdrawn, would normally be considered, since,
the factum of “further custody” would normally be a changed
circumstance. It is always open for an accused who is in custody to show
that his further incarceration for some months/years is a changed
circumstance, entitling him to regular bail. To exemplify, in case, a
person is accused of an offence for which the maximum sentence is 10
years and his first bail application, which was filed after undergoing two
years of custody, has been rejected, it would be open for that person to
come after a year or after a substantial period of further custody has been
undergone by him and the Courts could well grant the concession of bail
to the accused on the ground of “period of custody undergone”. In the
subsequent regular bail applications, there could be several factors in
addition to long incarceration, which could be raised for instance, it could
also be shown that there was a delay in the trial or that some material
witness has demolished the case of the prosecution, which would come
within the meaning of changed circumstances, so as to grant the relief to
the accused therein. Similar would be the position in the case of
suspension of sentence. However, the case of anticipatory bail cannot be
treated to be on the same pedestal.
Learned counsel for the petitioner has not cited any judgment
to even remotely show as to how the present second anticipatory bail
petition would be maintainable, moreso, when the petitioner has not
complied with the undertaking/statement which was made on his behalf
during the hearing of the first anticipatory bail petition and thus, the
present second petition for anticipatory bail is not maintainable.
This Court has also considered the case of the petitioner on
merits. A perusal of the FIR would show that the present petitioner is
stated to be the main accused, who in the year 2019 had told the
complainant that in order to meet some liabilities, there was a requirement
to sell the land in question and the petitioner, along with co-accused, had
started putting pressure on the complainant and had started extending
threats to him for the same. It is further alleged that in order to extort
money from the complainant the petitioner, along with co-accused, had
also filed a false complaint against the complainant and his wife at Police
Station, Samalkha on the allegations that the complainant had taken Rs.14
lakhs on the pretext of sending a relative of the co-accused abroad, and
accordingly, FIR No.68 dated 04.07.2020 under Sections 420, 406 and
506 IPC, at Police Station Samalakha was registered. The said FIR was
cancelled after investigation and in the same, it was found that a forged
affidavit in the name of the complainant had been prepared on a stamp
paper of Rs.101/- bearing G.R.N. No.43950556 and certificate No.Q BK
2019 B 40 dated 11.02.2019 and on the same, the accused had forged the
signatures of the complainant and it was then attested from notary public
and was presented by the present petitioner before the investigating
officer so as to make out a false case against the present complainant. The
complainant after applying under the Right Information Act, 2005, learnt
that the stamp paper which was used with respect to the said affidavit,
signed by the accused in the name of the complainant, was actually issued
by stamp vendor Maman Singh Chhokar on 11.02.2019 and the first party
in the same was mentioned as Anuj and second party was mentioned as
Suresh Kumar and on 27.08.2020, this stamp paper was changed and the
name of the complainant was incorporated as first party and even the
mobile number mentioned in the same as the complainant's mobile
number, did not pertain to the complainant. Thus, it was alleged that the
forged document had been prepared by the accused on which the
signatures of the complainant were forged by them to implicate him in a
false case with the intention to extort money from him. From the perusal
of the FIR, it is apparent that the petitioner, along with other co-accused,
had prepared the forged and fabricated document by using the stamp
paper which had been issued in favour of another party in order to falsely
implicate the complainant by registering a false FIR. A perusal of
paragraph 6 of the order dated 06.01.2022 (P-2), vide which the
anticipatory bail application of present petitioner was rejected by the
Additional Sessions Judge, Panipat, would show that the said forged
affidavit was handed over to the police in FIR No.68 dated 04.02.2020 by
the present petitioner Bhunesh. The said fact has not been disputed by
counsel for the petitioner.
Further the perusal of the FIR, as well as keeping in view the
above-said facts and circumstances, it becomes apparent that the
petitioner is the main accused, who had initially pressurized and harassed
the complainant and after the preparation of the forged affidavit, had
submitted the same to the police and thus, does not deserve the grant of
concession of anticipatory bail and hence, his custodial interrogation is
necessary in order to complete the chain of events comprising the
commission of the alleged offences. Thus, even on merits, the present
second petition for anticipatory bail deserves to be rejected.
Before parting with the present order, it would also be
relevant to note that although, no argument in this regard has been raised
by learned counsel for the petitioner, but an order dated 01.02.2022,
passed by this Court granting bail to co-accused Roshan Lal has been
annexed as Annexure A-3. The interim order in the said case was passed
on 20.12.2021, as is apparent from a bare reading of the said order. The
learned counsel for the petitioner therein/Roshan Lal, who was also the
counsel, who appeared for the present petitioner in his first petition for
anticipatory bail, had argued therein that even as per the impugned order
(relevant therein), it was not the said Roshan Lal who had given the
affidavit in question to the police, but the same had been given by the co-
accused Bhunesh (present petitioner). On the basis of the same, interim
protection was granted to the co-accused Roshan Lal on 20.12.2021. The
first anticipatory bail petition of the present petitioner came up for
hearing on 21.01.2022 and on the said date, the said interim order dated
20.12.2021 had already been passed in favour of the co-accused Roshan
Lal and the same was in the knowledge of the counsel for the petitioner,
appearing in the first anticipatory bail petition filed by the present
petitioner, as he was the same counsel who had also filed the petition on
behalf of co-accused Roshan Lal and it was after considering all the said
facts, that counsel for the petitioner, after seeing that this Court was not
inclined to grant relief in the matter at hand, sought permission to
withdraw the said petition and made a statement that the petitioner was
ready to surrender before the police within a period of 10 days. The
petitioner has back tracked from the said undertaking/statement and has
chosen to file present second petition under Section 438 Cr.P.C., which is
complete abuse of the process of the Court. This Court would also like to
take note of the unfortunate trend being adopted by unscrupulous litigants
in which, as in the present case, the petition for anticipatory bail is argued
and when the Court is about to dismiss the petition, learned counsel for
the petitioner, in order to avoid a detailed adverse order, seeks to
withdraw the petition and after some days, without any justification, files
a second anticipatory bail petition. The same not only wastes the time of
the Court, but is also an abuse of the process of the Court and the said
practice needs to be curtailed with a heavy hand and accordingly, the
present second petition for anticipatory bail is dismissed with costs of
Rs.50,000/-. The petitioner is directed to deposit the same with the
Haryana State Legal Services Authority within a period of one month
from today.
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The Punjab and Haryana High Court recently deprecated the practice of filing successive bail applications, without any adequate ground/ change in circumstances.
It also voiced concern over the unfortunate trend being adopted by "unscrupulous litigants" in which anticipatory bail is argued and when the Court is about to dismiss the petition, in order to avoid a detailed adverse order, the counsel seeks to withdraw the petition and after some days, without any justification, files a second anticipatory bail petition.
"The same not only wastes the time of the Court, but is also an abuse of the process of the Court and the said practice needs to be curtailed with a heavy hand," Justice Vikas Bahl said.
The remarks were made while dealing with second petition for the grant of anticipatory bail to the petitioner in a case of forging document to falsely implicate the complainant by registering a false FIR.
It observed that the second anticipatory bail petition was not only non-maintainable, but also misconceived and thus, deserves to be dismissed with costs of Rs. 50,000.
The bench further added that even on merits, the present second petition for anticipatory bail deserves to be rejected.
The court observed that when the first anticipatory bail petition came up for hearing, the counsel for the petitioner sought permission to withdraw assuring that the petitioner will surrender within 10 days but instead of complying with the same, the petitioner chose to file the present second anticipatory petition after the lapse of the said period of 10 days.
Keeping in view the above observation, court held that the withdrawal of the first anticipatory bail application was apparently to avoid a detailed adverse order and filing of the present second anticipatory bail petition is abuse of process of law.
The court further observed that there is a stark difference between filing of subsequent/successive regular bail applications for suspension of sentence and filing of subsequent/successive anticipatory bail applications.
In the case of regular bail applications, where a person is already in custody, any subsequent regular bail application filed, even after the first has been withdrawn, would normally be considered, since, the factum of "further custody" would normally be a changed circumstance. Similar would be the position in the case of suspension of sentence. However, the case of anticipatory bail cannot be treated to be on the same pedestal.
This Court has also considered the case on merits and it becomes apparent that the petitioner being the main accused, who pressurized and harassed the complainant after preparing a forged affidavit, does not deserve the grant of concession of anticipatory bail. Court further added that his custodial interrogation is necessary to complete the chain of events comprising the commission of the alleged offences.
Further the perusal of the FIR, as well as keeping in view the above-said facts and circumstances, it becomes apparent that the petitioner is the main accused, who had initially pressurized and harassed the complainant and after the preparation of the forged affidavit, had submitted the same to the police and thus, does not deserve the grant of concession of anticipatory bail and hence, his custodial interrogation is necessary in order to complete the chain of events comprising the commission of the alleged offences.
Accordingly, the second petition was dismissed with costs.
Case Title : Bhunesh v State of Haryana
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पंजाब और हरियाणा हाईकोर्ट ने हाल ही में बिना किसी पर्याप्त आधार/परिस्थितियों में बदलाव के, लगातार जमानत आवेदन दाखिल करने की प्रैक्टिस का विरोध किया।
कोर्ट ने "बेईमान वादियों" द्वारा अपनाई जा रही दुर्भाग्यपूर्ण प्रवृत्ति पर भी चिंता व्यक्त की, जिसमें अग्रिम जमानत का तर्क दिया जाता है और जब अदालत याचिका को खारिज करने वाली होती है तो विस्तृत प्रतिकूल आदेश से बचने के लिए, वकील याचिका वापस लेने का प्रयास करता है और उसके कुछ दिन बाद बिना किसी औचित्य के दूसरी अग्रिम जमानत याचिका दायर करता है।
जस्टिस विकास बहल ने कहा,
"इससे अदालत का समय बर्बाद होता है और अदालत की प्रक्रिया का दुरुपयोग भी होता है और उक्त प्रथा पर सख्ती से अंकुश लगाने की जरूरत है।"
झूठी एफआईआर दर्ज कर शिकायतकर्ता को झूठा फंसाने के लिए जाली दस्तावेज बनाने के मामले में याचिकाकर्ता को अग्रिम जमानत देने के लिए दूसरी याचिका पर विचार करते हुए यह कोर्ट ने यह टिप्पणी की। यह देखा गया कि दूसरी अग्रिम जमानत याचिका न केवल सुनवाई योग्य नहीं है बल्कि गलत भी है और इस प्रकार, 50,000 रुपये के जुर्माने के साथ खारिज करने योग्य है।
पीठ ने आगे कहा कि गुण-दोष के आधार पर भी अग्रिम जमानत की मौजूदा दूसरी याचिका खारिज किए जाने योग्य है।
अदालत ने देखा कि जब पहली अग्रिम जमानत याचिका सुनवाई के लिए आई, तो याचिकाकर्ता के वकील ने यह आश्वासन देते हुए वापस लेने की अनुमति मांगी कि याचिकाकर्ता 10 दिनों के भीतर आत्मसमर्पण कर देगा, लेकिन उसका पालन करने के बजाय, याचिकाकर्ता ने उक्त 10 दिनों की अवधि समाप्त होने के बाद मौजूदा दूसरी अग्रिम जमानत याचिका दायर करने का विकल्प चुना।
उपरोक्त अवलोकन को ध्यान में रखते हुए, अदालत ने माना कि पहली अग्रिम जमानत याचिका को वापस लेना स्पष्ट रूप से एक विस्तृत प्रतिकूल आदेश से बचने के लिए था और वर्तमान दूसरी अग्रिम जमानत याचिका दायर करना कानून की प्रक्रिया का दुरुपयोग है।
अदालत ने आगे कहा कि सजा के निलंबन के लिए बाद में/क्रमिक नियमित जमानत आवेदन दाखिल करने और बाद में/क्रमिक अग्रिम जमानत आवेदन दाखिल करने के बीच एक बड़ा अंतर है।
नियमित जमानत आवेदनों के मामले में, जहां एक व्यक्ति पहले से ही हिरासत में है, किसी भी अनुवर्ती नियमित जमानत आवेदन पर, भले ही पहले को वापस ले लिया गया हो, सामान्य रूप से विचार किया जाएगा, क्योंकि "आगे की हिरासत" का तथ्य सामान्य रूप से बदली हुइ्र परिस्थिति में होगा। सजा के निलंबन के मामले में भी यही स्थिति होगी। हालांकि, अग्रिम जमानत के मामले को उसी आधार पर नहीं माना जा सकता।
कोर्ट ने कहा, इस न्यायालय ने भी गुण-दोष के आधार पर मामले पर विचार किया है और यह स्पष्ट हो जाता है कि याचिकाकर्ता मुख्य आरोपी होने के नाते, जिसने फर्जी हलफनामा तैयार करने के बाद शिकायतकर्ता पर दबाव डाला और परेशान किया, वह अग्रिम जमानत की रियायत के लायक नहीं है। कोर्ट ने आगे कहा कि कथित अपराधों को अंजाम देने वाली घटनाओं की श्रृंखला को पूरा करने के लिए उसकी हिरासत में पूछताछ आवश्यक है।
तदनुसार, दूसरी याचिका को जुर्माने के साथ खारिज कर दिया गया था।
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1. The petitioner has filed the present writ petition seeking quashment of
recommendations issued by the respondent no. 4 vide its communication
No. DC/PD/To-II/42/1138-41 dated 28.12.2015, whereby the earlier
recommendations of the then Designate Committee for Power have been
unilaterally withdrawn. Besides, the petitioner has prayed a writ, order or
direction commanding respondent No. 3 not to cancel the order/permission
granted vide order dated 22.03.2022 to the petitioner for change of arc
furnace to induction furnace after the Designate Committee for Power
allowed the said permission.
2. Briefly stated the facts leading to filing of the instant petition are that the
petitioner is a Company incorporated under the Companies Act which is
running a Casting Unit situated at Bari Brahmana, Jammu. It manufactures
M.S Ingots and allied products. It was the specific case of the petitioner that
because of the quality of the product manufactured by it, the products of the
petitioner company are finding market in the State of J&K and in the
neighboring States. The petitioner has been sanctioned power load of 2250
KVA for manufactures of Ferro Alloys vide Government Order no. 422-
PDD of 1995 dated 18.10.1995.
3. The unit of the petitioner started manufacturing process since the year
1996. However, from the year 2007-08, the working of the unit became
erratic due to non availability of chromite ore from the State of Orissa. As
a result of which the unit of the petitioner remained closed for long periods.
Since the arc furnace required chromite ore as an input for manufacture of
Ferro chrome which was not available on the regular basis, the petitioner
approached the Power Development Department seeking requisite
permission for replacing the existing arc furnace with induction furnace.
The further case of the petitioner is that the induction furnace as compared
to arc furnace uses much modern technology which was not only
environment friendly but also is less burdening on the power supply system.
4. It has further been contended that in order to overcome this difficulty, a
request was made to the Power Development Department to permit the
petitioner to install induction furnace instead of arc furnace. The case for
the said purpose was processed at the departmental level and vide letter
dated 30.06.2010, Executive Engineer, EM&RE Division-II Jammu,
submitted its report to the Superintending Engineer, EM&RE Circle-I
Jammu, and vide letter dated 02.07.2010, the Chief Engineer, EM&RE
Wing Jammu submitted a detailed report to the Development
5. The brief case of the petitioner is that the petitioner has never applied for
fresh power connection as the power connection was already sanctioned in
his favour way back in 1995 itself. Rather the case of the petitioner was for
seeking permission for change of arc furnace to induction furnace.
6. The Government of Jammu and Kashmir through Power Development
Department issued order No. 72-PDD of 2010 dated 03.03.2010, by virtue
of which, it was ordered that henceforth no power connection be provided to
industrial units engaged in Iron and Steel Manufacturing through the use of
electric induction and arc furnaces. By virtue of the aforesaid order, a
complete ban was imposed on power connections for electric induction and
arc furnace by the industrial units.
7. Mr. Pranav Kohli, learned senior counsel appearing on behalf of the
petitioner vehemently argued that the aforesaid Government Order whereby
the erstwhile State of Jammu and Kashmir had imposed ban on power
connections cannot be made applicable to the case of the petitioner,
inasmuch as, it was not the case of the petitioner for providing fresh power
connection to the petitioner unit.
8. The further case of the petitioner is that the representation for change of
machinery of the petitioner was placed before Designated Committee for
Power which, after due deliberations, approved the request of the petitioner
for the requisite change vide its meeting dated 16.02.2012. A perusal of the
serial No. 21 of the minutes of meeting reveals that the case of the petitioner
was allowed by the said Committee. The relevant portion of the minutes of
meeting is reproduced as under:-
Induction furnace in favour of M/S. Shree Guru Kirpa
Alloys Pvt. Ltd. Bari-Brahmana for a sanctioned power
load of 2250 KVA.
furnace to Induction furnace was decided to be allowed
by the committee. The unit at present is being supplied
power through 33 KV Narbada Feeder from 2x50
Already sanctioned load, activity, premises of the
installation and power infrastructure shall remain the
same. The change proposal in respect of Arc furnace
to Induction furnace in any case should not alter
loading position of 33 KV Narbada line as well as Grid
Station feeding the unit as there is no change in respect
of sanctioned load. Further the unit holder shall
liquidate all upto date arrears in the first instance.”
9. It is further contended in the petition that the Development
Commissioner (Power), J&K PDD, Jammu, vide its letter dated 16.03.2012
authorized the Chief Engineer, EM&RE Wing, Jammu, for grant of
permission for change of arc furnace to induction furnace in favour of the
petitioner unit.
10. Learned senior counsel further argued that while granting the permission
to replace arc furnace with induction furnace, the petitioner’s sanctioned
load, manufacturing activity, premises of the installation and power
infrastructure would remain the same as the same would not have any
impact on the load position of the feeder.
11. It is the specific case of the petitioner that the concerned Chief
Engineer, after the decision taken by the Designate Committee for Power
Jammu and thereafter duly authorized by the DCP Jammu, issued an order
dated 22.03.2012 in favour of the unit of the petitioner for grant of
permission for change of arc furnace to induction furnace.
12. The brief case which has been put forth by the petitioner is that
respondent No. 4 is taking the case of the petitioner of change from arc to
induction furnace as if a new power connection has been granted or
sanctioned in its favour by the respondent no. 3. However, the fact of the
matter is that the Chief Engineer has only granted permission for change of
after it was duly authorized by the Designate Committee for Power. Thus,
there is no reason, whatsoever, available with the respondents for either
withdrawing the order of the then Designate Committee and further
cancelling the order dated 22.03.2012 passed by respondent no. 3. Thus, the
recommendations issued by the respondent No. 4 cannot sustain the test of
law and are liable to be quashed.
13. The learned counsel further argued that the change of arc to induction
furnace was granted way back in 2012 by the concerned Chief Engineer
after due authorization granted by the Designate Committee for Power. The
petitioner not only dismantled its old arc furnace along with its
infrastructure but also made huge investments by purchasing and installing
the induction furnace. The total expenditure incurred by the petitioner after
the permission is about 4.5 crores, out of which 2.5 crores has been obtained
as loan from the Bank.
14. The case of the petitioner is that if the said permission is withdrawn or
power supplied to the unit of the petitioner is disconnected, the unit will not
only become non-functional but will also suffer huge financial loss without
any fault on the part of the petitioner.
15. Learned counsel for the petitioner further argues that on the basis of the
said approval and sanction, the Development Commissioner, (Power),
J&K, duly authorized the respondent no. 3 to issue the order for the same.
The permission, which was accorded in favour of the petitioner, has been
accorded on earlier occasions also by the respondents in favour of the
similarly situated units like Narbada Steel, R. B. Jodhamal Industries, Tawi
Chemical Industries and K.C. Minerals and, recently, in case of J.K. Alloys
Pvt. Ltd. Thus, as per the counsel for the petitioner, respondents, by no
stretch of imagination, can discriminate with the petitioner.
16. Learned counsel appearing for the petitioner has vehemently argued that
the ban imposed by the Government by virtue of order dated 03.03.2010
does not cover the case of the petitioner as it is not a case of grant of fresh
connection, rather the case of the petitioner relates to grant of permission
of change of arc furnace to induction furnace, which was allowed in
pursuant to the recommendation of the Committee with the rider that the
already sanctioned load, activity, premises of the installation and power
infrastructure shall remain the same.
17. Learned counsel for the petitioner has referred to the minutes of meeting
of the Designate Committee held on 10.12.2015 in the Office of
Development Commissioner, Jammu wherein the Committee deliberated
the recommendation of the then Designate Committee issued vide no.
DC/PD/To-II/42/3884-87 dated 16.03.2012 and it was decided as under:-
(i) No consideration can be accorded to any
issue/application in violation to Govt order No. 72 PDD
of 2010 dated 03-03-2010.
(ii)Recommendations were not strictly in line with the
Govt. Order No. 72 FDD of 2010 dated 03-03-2010.
Though the Government order was silent about change
of type of furnace from arc to induction or vice versa
for industrial unit already having sanction for use of
such furnace prior to issuance of Govt order, yet it was
noted by the Committee that allowing change from one
banned type of furnace to another banned type of
furnace tantamounts to violation of Government order
by implication.
the already issued order in the year 2012 in this regard.
(iii) Consequently, Committee also decided to take up
the issue with the Govt. for getting clarification
regarding as to how to proceed in case of such
arc/induction furnaces stands already accorded prior
to issuance of banning order by the Govt in the year
2010 where no power sanction or enhancement of load
in power sanction by such applicants is involved.
18. Learned counsel for the petitioner has vehemently argued that the
findings of the subsequent Committee which is impugned in the present
petition to withdraw the recommendation of the earlier Committee by
issuing a direction to the Chief Engineer to cancel the order issued in 2012
is not applicable to the case of the petitioner as the case of the petitioner
does not fall within the ambit of the new connection, rather it was a case of
change of type of furnace from arc to induction for which, there was no
change in the load and it was not a new connection rather, it was the change
of activity and, accordingly, outside the purview of the ban imposed by the
Government vide Order no. 72-PDD of 2010 dated 03.03.2010.
19. Learned senior counsel has further taken this Court to the minutes of
the meeting dated 16.03.2012 in which the Development Commissioner
Wing, Jammu and Chief Engineer, Planning & Design Wing, J&K, were
present and permission was granted in favour of the petitioner for change
of arc furnace to induction furnace for a sanction power load of 2250 KVA.
Pursuant to the decision of the aforesaid Committee, office order dated
22.03.2012 came to be issued by the concerned Chief Engineer, wherein
permission was granted in favour of the petitioner for the change of arc
furnace to induction furnace with the rider that the already sanctioned load,
activity, premises of the installation and power infrastructure shall remain
the same.
20. Learned senior counsel for the petitioner has referred to the latest order
issued vide Government Order No. 57-PDD of 2022 dated 20.05.2022
(copy whereof has been taken on record), by virtue of which, the
Government of Jammu & Kashmir through the Power Development
Department has lifted the ban on Electric Arc and Induction Furnaces in
Union Territory of Jammu and Kashmir. From a perusal of the aforesaid
order, it is manifestly clear that the ban imposed on new connections
(including enhancement of load) vide Government order no. 72 PDD of
2010 dated 03.03.2010) was lifted on the following terms and conditions:-
a) “The power quality shall be maintained by installation
of automatic capacitor banks and harmonic filters as per JERC
(for UTs of J&K and Ladakh), regulations.
b) No subsidy shall be provided to the HT Industrial Supply
for Power Intensive Category of consumers, as per Schedule-10
of JERC Tariff Order for 2016-17, presently in vogue, which
include arc/induction furnaces as well.
c) The new connections or enhancement of load shall be
sanctioned subject to availability of upstream infrastructure at
transmission and distribution level.
d) Other JERC (for UTs of J&K and Ladakh), regulations
related to Arc/Induction Furnaces shall be strictly adhered to.”
21. Learned counsel for the petitioner has vehemently argued that the ban
was lifted only vis-a-vis the new connections and including the connections
where there was enhancement of load and he further argues that his case
does not fall within the ambit of new connection or second condition i.e.
enhancement of load.
22. All along, learned counsel has argued that the ban imposed initially by
virtue of order No. 72-PDD of 2010 dated 03.03.2010 relates to the fact that
it is applicable to the use of electric induction and arc furnaces by the
industrial units to the new units including the units where the load was
enhanced, but insofar as the case of the petitioner is concerned, it was not a
case of new connection nor the load was enhanced in his case and, thus, his
plea that his case was outside the purview of the ban stood vindicated when
the Government, by lifting the ban, specifically imposed the condition
while lifting the ban on new connections including enhancement of load
with certain riders.
23. Even otherwise also, the petitioner has argued that during the
intervening period, when the order of Chief Engineer was in vogue, the
petitioner availed the said benefit.
24. Per contra, Mr. Amit Gupta, learned AAG appearing on behalf of
respondents, vehemently argued that the order of ban covers all the cases
including change of activity from arc furnace to induction furnace and,
hence, the case of the petitioner falls within the ambit of the Government
Order dated 03.03.2010.
25. Learned counsel has further argued that the recommendations of the
earlier Committee dated 16.02.2012 was in direct conflict with the aforesaid
order and the policy framed by the Government and, accordingly, the same
was rectified by the subsequent Designate Committee comprising of the
Wing, J&K, Jammu, Chief Engineer, Electric M&RE Wing, Jammu and
26. Learned counsel appearing on behalf of official respondents has further
argued that the Committee deliberated the recommendations of the earlier
Designate Committee and, accordingly, the recommendations were made
whereby it was recommended that allowing change from one banned type
of furnace to another banned type of furnace tantamounts to violation of
Government Order by implication and, accordingly, it was decided to
withdraw the recommendations of the earlier Designate Committee and the
order passed by the Chief Engineer, and, this was precisely the reason that
the Chief Engineer was advised to cancel the order issued in 2012 in this
regard.
27. The further stand of the respondents is that the Chief Engineer or the
Committee, by no stretch of imagination, can alter or substitute its opinion
which is in direct conflict with the policy already framed by the
Government in the Administrative Department.
28. Learned AAG further contends that since the findings of the earlier
Committee were in direct conflict with the aforesaid policy and,
accordingly, it was thought expedient to constitute another Committee
which gave its recommendation and, accordingly, a direction was issued to
the concerned Chief Engineer to cancel the order issued in favour of the
petitioner.
29. Mr. Amit, learned AAG has argued that the wrong which was earlier
committed by the Committee was rectified by the subsequent Committee
and, accordingly, projected that the recommendations of the subsequent
Committee dated 28.12.2015 was in tune with the policy framed by the
Government. The order issued by the concerned Chief Engineer dated
22.03.2012 was in direct conflict with the policy framed by the Government
and, accordingly, the Committee recommended to cancel the aforesaid
order.
30. Heard learned counsel for the parties at length and perused the record.
31. Although, the order which granted power connection to the petitioner
was issued way back in 1995 for running the arc furnace. But subsequently,
the Government has come with a ban on power connections for use of
electric induction furnace or arc furnace in supersession of all previous
circulars/orders under which the petitioner was granted permission to run
his arc furnace. Once, the Government order specifically provides that it is
in supersession of all the previous circulars/orders, then the connection
which was granted earlier loses its significance and the subsequent ban
comes into force, which covers both the cases for the use of electric
induction furnace and arc furnace.
32. Accordingly, I hold that shifting of the connection from the use of arc
furnace to electric induction furnace or vice versa also falls within the ambit
of granting new power connection which was banned and falls within the
ambit of the aforesaid Government order as the said order imposing
complete ban specifically provides that it is in supersession of all previous
circulars/orders.
33. Once ban has been imposed, then it covers both the cases i.e. no power
connection shall be provided to the industrial unit engaged in the iron and
steel manufacturing through the use of electric induction and arc furnace or
even shifting from arc furnace to electric induction furnace, which also
tantamounts to granting new power connection, which was banned.
Shifting also falls within the ambit of granting new connections, which was
prohibited by the said order imposing ban. Thus, allowing change from one
banned type of furnace to another banned type of furnace tantamounts to
violation of the Government Order No. 72 of PDD of 2010 dated
34. I am fortified by the observation of the Hon’ble Supreme Court in
Kanta Goel v B. P. Pathak, 1977 SCR(3) 412, wherein it was held that
when the words are capable of bearing two or more constructions, they
should be construed in light of the object and purpose of the enactment. The
purposive construction of the provision must be “illumined by the goal,
though guided by the word”.
35. The interpretation, which has been drawn by the learned counsel for the
petitioner that the ban is imposed only on new connection including
enhancement of the load vide Government order dated 03.03.2010, was
lifted vide order dated 20.05.2022 and since the petitioner had not applied
for new connection and thus, his case will not be covered in the aforesaid
ban, is an interpretation which is contrary to the spirit and mandate of the
Government order dated 03.03.2010 by applying the purposive
interpretation which prohibits that no power connection shall
henceforth be provided which includes even the case of the petitioner
as much emphasis has been laid down in the language which explicitly
provides that it is in supersession of all the previous circulars/orders
and ban covers all new connections which include enhancement of load
or for that matter shifting from arc furnace to electric induction
furnace.
36. I draw support from the decision taken by the recommendation issued
by the respondent No. 4 that is the designated committee, who are experts
in the field of power. The said committee after due deliberations has taken
a conscious decision vide communication dated 28.12.2015, whereby, the
earlier recommendations of the then designate committee for power has
been withdrawn. The decision of the said designated committee which is
impugned in the present writ petition is perfectly legal and justified and in
consonance with the spirit and mandate of aforesaid Government order
which imposes a complete ban on the industrial units engaged in iron and
steel manufacturing through the use of electric induction furnace and arc
furnace. Subsequently, by virtue of Government order dated 20.05.2022,
the aforesaid Government order imposing ban has been further interpreted,
while lifting the ban, whereby, much emphasis has been laid down that the
ban covers with respect to the granting of new connections and also
enhancement of load.
37. Thus, in light of what has been stated hereinabove coupled with the
decision of the designated committed dated 28.12.2015, I hold that shifting
from arc furnace to electric induction furnace would also tantamount to
granting fresh power connection which will be in direct conflict with the
ban imposed vide Government order dated 03.03.2010 and the earlier
connection which was granted to the petitioner for running the arc furnace
lost its validity in light of the language used in the Government order dated
03.03.2010 imposing ban by specifying that the said Government order is
in supersession of all previous circulars/orders.
38. Once, the ban imposed in 2010 is in supersession of all previous
circulars/orders, then in that eventuality, the connection which was already
granted to the petitioner for running arc furnace also loses its validity and
significance. In that eventuality, the petitioner has to apply afresh for new
power connection which was banned by the Government from the
intervening period commencing from 03.03.2010 to 20.05.2022 and during
that intervening period even shifting of the connection from arc furnace to
electric induction furnace would also fall within the ambit of granting new
power connection which was strictly banned.
39. Since the ban has now been lifted by virtue of subsequent order, the
Government is not precluded from taking a decision afresh in light of the
aforesaid Government order No. 57-PDD of 2022 dated 20.05.2022(which
is taken on record) for according consideration to the case of the petitioner.
The interpretation drawn by the learned counsel for the petitioner cannot
sustain the test of law and is liable to be rejected on the ground that if the
interpretation as projected by the petitioner is taken to be true then, it will
tantamount to draw a different interpretation then what was the import of
the Government order and in a way, it would tantamount to interpret a
Government order imposing ban retrospectively for 12 years in a different
40. The retrospective operation of a Government Order cannot be permitted
particularly where it is merely an executive order, and not a legislation.
Even if this interpretation has to be taken as a true interpretation, even then,
the petitioner cannot improve his case as it can in no way be applied
retrospectively as every Government/executive order by virtue of a policy
has prospective operation and it can in no way be applied retrospective by
infusing life in a Government order and interpreting differently, when the
explicit language leads to an irresistible conclusion that the ban covers all.
I am fortified by the view of the Hon’ble Supreme Court in Bhart Sanchar
Nigam Ltd. and others v Tata Communications Ltd, 2022 SCC Online
1280, the relevant portion is reproduced as under:
“30. The power to make retrospective legations enables the
Legislatures to obliterate an amending Act completely and restore
the law as it existed before the amending Act, but at the same time,
administrative/executive orders or circulars, as the case may be, in
the absence of any legislative competence cannot be made
applicable with the retrospective effect. Only law could be made
retrospectively if it was expressly provided by the Legislature in
the Statute. Keeping in mind the afore-stated principles of law on
the subject, we are of the view that applicability of the circular
dated 12th June, 2012 to be effective retrospectively from 1st April,
2009, in revising the infrastructure charges, is not legally
sustainable and to this extent, we are in agreement with the view
expressed by the Tribunal under the impugned judgment.”
41. Having accepted the aforesaid Government order imposing ban for 12
years, it does not lie in the mouth of the petitioner to agitate now, at this
belated stage that his case is not covered by the said ban or petitioner can
draw different interpretation after 12 years, when the plain reading of the
language used in the aforesaid Government order leads to irresistible
conclusion that ban covers all cases including the case of the petitioner.
42. It is also pertinent to mention here that the petitioner has not called in
question the order dated 03.03.2010 (supra) for more than 12 twelve years
and accepted the same gladly and voluntarily. The petitioner, as such, is
estopped under law to question the same at this belated stage by drawing
different interpretation than what it connotes/conveys.
43. Even otherwise also, the present writ petition is not maintainable and
liable to be dismissed in absence of any specific challenge to the aforesaid
Government order No. 72 PDD of 2010 dated 03.03.2010 imposing ban,
which was gladly and voluntarily accepted by the petitioner for all along
these 12 years.
44. The judgment relied by the counsel for the petitioner in Civil Appeal
No. 5802/2022 arising out of SLP(C) No. 12612/2022 in case titled, X vs
Principal Secretary Health and Family Welfare Department is not
applicable to the case in hand as the rule of purposive interpretation relied
by the petitioner deals with principle of construction of statute/the intention
of legislature and its intent. It is settled preposition of law that only law
could be made applicable retrospectively if it was provided by the
legislature in the statute, but at the same time, administrative/executive
order or circular in absence of any legislative competence cannot be made
applicable with retrospective effect.
45. For all what has been discussed hereinabove, the interpretation drawn
by the petitioner cannot be accepted at this stage and the same is not
sustainable in the eyes of law and is liable to be rejected and consequently,
the present writ petition fails and the same is dismissed along with all
connected applications.
46. However, the Government is not precluded from taking a decision in
case of petitioner afresh, strictly in conformity with the Government order
No. 57 PDD of 2022 dated 20.05.2022 by virtue of which the ban was lifted,
within four weeks from the date a copy of this order is made available to
the respondents.
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The Jammu and Kashmir and Ladakh High Court on Thursday ruled that retrospective operation of a Government Order cannot be permitted particularly where it is merely an executive order, and not a legislation.
A bench comprising Justice Waseem Sadiq Nargal observed,
"As every Government/executive order by virtue of a policy has prospective operation, it can in no way be applied retrospectively by infusing life in a Government order and interpreting differently, when the explicit language leads to an irresistible conclusion".
The observations were made while hearing a plea in terms of which the petitioner had challenged recommendations issued by the J&K Power Development Department dated 28.12.2015, whereby the earlier recommendations of the then Designate Committee for Power granting permission to change arc furnace with induction furnace at his industrial unit had been unilaterally withdrawn.
The specific case of the petitioner was that his Company was running a Casting Unit at Jammu and had been sanctioned power load of 2250 KVA for manufacturing of Ferro Alloys vide Government Order dated 18.10.1995.
However, from the year 2007-08, the working of the unit became erratic due to non availability of chromite ore from the State of Orissa, as a result of which the petitioner approached the Power Development Department seeking requisite permission for replacing the existing arc furnace with induction furnace.
Nevertheless, in the year 2010 Power Development Department issued order dated 03.03.2010, by virtue of which, it was ordered that henceforth no power connection be provided to industrial units engaged in Iron and Steel Manufacturing through the use of electric induction and arc furnaces. By virtue of the aforesaid order, a complete ban was imposed on power connections for electric induction and arc furnace by the industrial units.
In his plea counsel for the petitioner Sr Adv Pranav Kohli argued that the aforesaid Government Order whereby the erstwhile State of Jammu and Kashmir had imposed ban on power connections cannot be made applicable to the case of the petitioner, inasmuch as, it was not the case of the petitioner for providing fresh power connection to the petitioner unit.
The petitioner had sought permission from the concerned dept to replace the Arc furnace with induction furnace which came to be granted by the Chief Engineer on 22.03.2012. Subsequently this permission was withdrawn.
Throwing a challenge to the withdrawal of this permission, counsel contended that the respondent has taken the case of change from arc to induction furnace as a case of new power connection when the fact of the matter was that the Chief Engineer has only granted permission of change of machinery and the order of withdrawal of the said permission is liable to be quashed.
Counsel for the petitioner also placed on record a latest order issued by Government dated 20.05.2022 by virtue of which, the Government of Jammu & Kashmir lifted the ban on Electric Arc and Induction Furnaces in Union Territory of Jammu and Kashmir on which he argued that the ban was lifted only vis-a-vis the new connections and that his case does not fall within the ambit of new connection.
Adjudicating upon the matter Justice Nargal observed that though the order which granted power connection to the petitioner was issued way back in 1995 for running the arc furnace but once a subsequent Government order specifically provides that it is in supersession of all the previous circulars/orders, then the connection which was granted earlier loses its significance and the subsequent ban comes into force, which covers both the cases for the use of electric induction furnace and arc furnace.
"Once ban has been imposed, then it covers both the cases i.e. no power connection shall be provided to the industrial unit engaged in the iron and steel manufacturing through the use of electric induction and arc furnace or even shifting from arc furnace to electric induction furnace, which also tantamounts to granting new power connection, which was banned. Shifting also falls within the ambit of granting new connections, which was prohibited by the said order imposing ban", the bench underscored.
Deliberating on the subject of removal of ban in 2022 and the contention of the petitioner that that the ban was lifted only vis-a-vis the new connections and that his case does not fall within the ambit of new connection, the bench observed that the interpretation drawn by the counsel for the petitioner cannot sustain the test of law and is liable to be rejected on the ground that if the interpretation as projected by the petitioner is taken to be true then, it will tantamount to draw a different interpretation than what was the import of the Government order and in a way, it would tantamount to interpret a Government order imposing ban retrospectively for 12 years in a different way.
Expounding law on the limitations on the retrospective application of executive orders Justice Nargal observed, that the retrospective operation of a Government Order cannot be permitted particularly where it is merely an executive order, and not a legislation, further adding that petitioner has not called in question the order dated 03.03.2010 (supra) for more than 12 twelve years and accepted the same gladly and voluntarily and hence is estopped under law to question the same at such belated stage.
Accordingly the bench found the petition devoid of any merit and dismissed the same.
Case Title : M/s Shree Guru Kripa Alloys Pvt. Ltd. Vs State of J&K
Coram : Justice Wasim Sadiq Nargal
Counsel For Petitioner : Mr Pranav Kohli Sr Adv
Counsel For Respondent : Mr Amit Gupta AAG
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जम्मू एंड कश्मीर एंड लद्दाख हाईकोर्ट ने गुरुवार को एक फैसले में कहा कि सरकारी आदेश के पूर्वव्यापी संचालन की अनुमति नहीं दी जा सकती है, विशेष रूप से जहां यह केवल एक कार्यकारी आदेश है, न कि कानून।
जस्टिस वसीम सादिक नर्गल की पीठ ने कहा,
"जैसा कि नीति के आधार पर प्रत्येक सरकार/कार्यकारी आदेश का भावी संचालन होता है, इसे किसी भी तरह से पूर्वव्यापी रूप से लागू नहीं किया जा सकता है....."।
कोर्ट ने एक याचिका पर सुनवाई करते हुए यह टिप्पणी की थी, जिसके संदर्भ में याचिकाकर्ता ने जम्मू-कश्मीर बिजली विकास विभाग द्वारा 28.12.2015 को जारी की गई सिफारिशों को चुनौती दी थी, जिससे उसकी औद्योगिक इकाई में इंडक्शन फर्नेस के साथ आर्क फर्नेस को बदलने की अनुमति देने वाली तत्कालीन पॉवर कमेटी की पहले की सिफारिशों को एकतरफा वापस ले लिया गया था।
याचिकाकर्ता का मामला यह था कि उनकी कंपनी जम्मू में एक कास्टिंग यूनिट चला रही थी और उसे 18.10.1995 के सरकारी आदेश के तहत फेरो मिश्र धातुओं के निर्माण के लिए 2250 केवीए का बिजली भार स्वीकृत किया गया था।
हालांकि वर्ष 2007-08 से उड़ीसा राज्य से क्रोमाइट अयस्क की अनुपलब्धता के कारण इकाई का कामकाज अनियमित हो गया, जिसके परिणामस्वरूप याचिकाकर्ता ने बिजली विकास विभाग से संपर्क किया और मौजूदा आर्क फर्नेस को इंडक्शन फर्नेस के साथ बदलने के लिए अपेक्षित अनुमति मांगी। ।
फिर भी, वर्ष 2010 में विद्युत विकास विभाग ने 03.03.2010 का आदेश जारी किया था, जिसके आधार पर यह आदेश दिया गया था कि अब से आयरन एंड स्टील मैन्युफैक्चरिंग में लगी औद्योगिक इकाइयों को इलेक्ट्रिक इंडक्शन और आर्क फर्नेस के माध्यम से कोई बिजली कनेक्शन नहीं दिया जाएगा। उक्त आदेश के तहत औद्योगिक इकाइयों द्वारा विद्युत प्रेरण एवं आर्क फर्नेस के लिए विद्युत संयोजनों पर पूर्ण प्रतिबंध लगाया गया था।
याचिकाकर्ता के वकील श्री प्रणव कोहली ने अपनी दलील में तर्क दिया कि उपरोक्त सरकारी आदेश जिसके तहत जम्मू और कश्मीर राज्य ने बिजली कनेक्शन पर प्रतिबंध लगाया था, याचिकाकर्ता के मामले में लागू नहीं किया जा सकता, क्योंकि याचिकाकर्ता यह मामला नहीं था कि याचिकाकर्ता इकाई को नया बिजली कनेक्शन प्रदान किया जाए।
याचिकाकर्ता ने आर्क फर्नेस को इंडक्शन फर्नेस से बदलने के लिए संबंधित विभाग से अनुमति मांगी थी जो मुख्य अभियंता द्वारा 22.03.2012 को दी गई थी। इसके बाद यह अनुमति वापस ले ली गई।
इस अनुमति को वापस लेने को चुनौती देते हुए, वकील ने तर्क दिया कि प्रतिवादी ने आर्क से इंडक्शन फर्नेस में बदलाव के मामले को नए बिजली कनेक्शन के मामले के रूप में लिया है, जबकि तथ्य यह था कि मुख्य अभियंता ने केवल मशीनरी के परिवर्तन की अनुमति दी थी और उक्त अनुमति को वापस लेने का आदेश रद्द करने के लिए उत्तरदायी है।
याचिकाकर्ता के वकील ने सरकार द्वारा 20.05.2022 को जारी एक नवीनतम आदेश भी रिकॉर्ड में रखा, जिसके आधार पर जम्मू-कश्मीर सरकार ने केंद्र शासित प्रदेश जम्मू और कश्मीर में इलेक्ट्रिक आर्क और इंडक्शन फर्नेस पर प्रतिबंध हटा दिया, जिस पर उन्होंने तर्क दिया कि प्रतिबंध केवल नए कनेक्शनों के संबंध में हटाया गया था और उनका मामला नए कनेक्शन के दायरे में नहीं आता है।
इस मामले पर निर्णय देते हुए जस्टिस नरगल ने कहा कि हालांकि याचिकाकर्ता को बिजली कनेक्शन देने का आदेश 1995 में आर्क फर्नेस चलाने के लिए जारी किया गया था, लेकिन एक बार बाद के सरकारी आदेश में विशेष रूप से यह प्रावधान है कि यह पिछले सभी परिपत्रों/आदेशों के अधिक्रमण में है, फिर जो कनेक्शन पहले प्रदान किया गया था वह अपना महत्व खो देता है और बाद में प्रतिबंध लागू हो जाता है, जो इलेक्ट्रिक इंडक्शन फर्नेस और आर्क फर्नेस के उपयोग के लिए दोनों मामलों को कवर करता है।
कार्यकारी आदेशों के पूर्वव्यापी आवेदन पर सीमाओं पर कानून की व्याख्या करते हुए जस्टिस नरगल ने कहा कि सरकारी आदेश के पूर्वव्यापी संचालन की अनुमति नहीं दी जा सकती है, विशेष रूप से जहां यह केवल एक कार्यकारी आदेश है, और कानून नहीं है।
तदनुसार पीठ ने याचिका को किसी भी योग्यता से रहित पाया और उसे खारिज कर दिया।
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Sample_9
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1. CM (M) 47/2022 has been filed challenging the impugned order dated
22.12.2021 passed by learned Judge, Family Court, South-East District,
Saket in Guardianship Petition no.8/2021 titled as “Abhishek Ahuja v. Aditi
Bakht” insofar as restrain the petitioner from removing her minor child,
namely, Anaaya Ahuja from Delhi. A further prayer has been made that
order dated 21.08.2021 also be quashed insofar as it restrains the petitioner
from removing the minor child Anaaya Ahuja from Delhi. The petitioner has
also prayed for transfer of the proceedings in Guardianship Petition
no.8/2021 titled as “Abhishek Ahuja v. Aditi Bakht” and all pending
applications therein pending before Sh.Sanjeev Kumar Singh, learned Judge,
Family court, South-East District, Saket to any other court. A prayer has also
been made for the release of Canadian passport bearing no.GA340868 held
by the petitioner and Canadian passport bearing no. AM039545 held by the
Petitioner‟s minor daughter Anaaya Ahuja.
2. While this petition was pending, the learned Judge, Family Court
decided the Guardianship Petition No.8/2021 titled as “Abhishek Ahuja v.
Aditi Bakht” vide order dated 04.03.2022 and granted the following
rights/access to the respondent father with the minor child:
(i) The applicant/petitioner shall have visitation rights with the minor child
on every Wednesday and Friday at his parents' home from 3.00 p.m. to 6.00
(ii) The applicant/petitioner shall also be entitled to overnight stay of minor
child Anaaya at his parents' home on every 2nd and 4th Sunday. On every 2nd
and 4th Saturday, the applicant shall take custody of the minor child Anaaya
CM(M) 47/2022 & CM(M) 211/2022 Page 2 of 10
from the respondent/mother at 10.00 a.m. in the morning and shall handover
custody of the minor child to non-applicant/ respondent on every 2nd and 4th
Sunday at 6.00 p.m. respectively.
(iii) During long holidays, vacations extending more than two weeks, the
minor child shall remain to be in the custody of the applicant/petitioner and
his parents for three days and the petitioner shall also be entitled to travel
outside Delhi along with the minor child likewise the respondent shall also
be entitled to travel outside Delhi alongwith the minor child on such
holidays/vacations when the minor child shall remain in the custody of the
respondent.
(iv) During summer vacations, the minor child shall remain to be in the
custody of the applicant/petitioner and his parents for a period of 15 days as
per the convenience of the child and the petitioner will also be entitled to
travel outside Delhi alongwith minor child. Here it is also ordered that
during summer vacations when the minor child shall remain in the custody
of the respondent, she will also be entitled to travel outside Delhi along with
the minor child.
(v) On festivals, the petitioner shall be at liberty to get the minor daughter
from 1.00 p.m. to 6.00 p.m.
(vi) On minor daughter's birthday, the petitioner shall be at liberty to get the
minor daughter from 2.30 p.m. to 6.30 p.m. On petitioner's birthday,
petitioner's family's birthday, the petitioner shall be at liberty to get the
minor daughter for four hours as per the convenience of the child.
(vii) The petitioner and his family members shall also be at liberty to drop,
accompany and pick the child to and from her school on Thursday.
CM(M) 47/2022 & CM(M) 211/2022 Page 3 of 10
(viii) The petitioner shall also be permitted to attend all the
meetings/occasions/celebrations at the minor daughter's school including but
not limited to parent-teacher meeting. The respondent shall share all the
communications from the minor daughter's school including but not limited
to the curriculum, school schedule etc.
(ix) The petitioner shall also be entitled to have interaction through video
call with the minor child for atleast 30 minutes everyday as per convenience
of the child.
3. The petitioner mother aggrieved of this filed CM(M) No.211/2022
challenging the impugned order predominantly on the ground that the
impugned order dated 04.03.2022 focused solely on the rights of the father
and his family ignoring the comforts of the minor child. It has been stated
that the minor child has lived alone with the mother since she was 18
months old and is heavily dependent on her mother and has never been
separated from her. The child has slept in the same bed as her mother since
she was a few weeks old and still wakes up frequently at night looking to her
mother for comfort. The petitioner has stated that separating the minor child
from the mother for overnight visitation or vacation is sudden, drastic and
would have a negative impact on the psyche and comfort of the minor child.
4. Learned counsel for the petitioner has submitted even if the court
considers increasing the father‟s visitation for the summer vacation, the
overnight visitation ought not to be granted keeping in mind that the minor
daughter is still short of three years. It has further been stated that visitation
rights may be granted keeping in view the weekly schedule of the summer
classes and respondent father may attend classes with the child to ensure
stability for the child.
5. The plea of the petitioner is that the Family Court vide impugned
order 21.08.2021 had restrained the petitioner from removing the minor
child from Delhi till the next date of hearing and this was not extended
beyond 28.10.2021 and therefore stood lapsed. The grievance of the
petitioner is that learned Judge Family court vide order dated 22.12.2021
would not have restored it without passing a fresh order imposing any travel
restriction on the petitioner. The petitioner has narrated several incidents
regarding the apprehension of bias which is not being narrated in detail
herein.
6. Ms.Geeta Luthra, learned senior counsel assisted by Ms.Asmita
Narula, advocate for the respondent husband has submitted that that the
learned Judge, Family court has after taking into account the entire facts and
circumstances and law on the point has granted visitation right vide a well-
reasoned order after due application of judicial mind and there is no cause of
interference in the same in absence of any perversity/illegality in the same.
It has been submitted that the father has been the primary care giver and has
co-parented the daughter since her birth being a hands-on father and has
been actively involved in every minute of the daughter‟s life-changing
diapers, feeding, playing, reading books, bathing, etc. It has been submitted
that the father can be granted overnight visitation (2 nd and 4th weekends and
vacations) in terms of the Visitation Order as he can evidently take care of
the daughter‟s routine and also put her to sleep.
7. I have heard learned counsel for both the parties and perused the
record.
8. In the present case, the grievances of the petitioner mother is that the
learned Judge, Family court has shared his personal mobile number with the
CM(M) 47/2022 & CM(M) 211/2022 Page 5 of 10
parties during the proceedings and the respondent father had met the judge
unilaterally in his chamber. This has created an apprehension in the mind of
the petitioner mother. This court also considers that it was not advisable for
the learned judge, Family Court to have shared his personal mobile number
with the parties. It is a settled proposition that justice must not only be done
but must also appear to have been done. The conduct of the judge while
conducting the judicial proceedings should be above board.
9. The petitioner had sought the transfer of the case from the learned
judge, Family court to any other court. It is pertinent to mention here that
divorce petition between the parties bearing SMA No.07/2022 is pending
before the learned Principal Judge, Family court, South-East District, Saket.
It is also pertinent to mention here that Guardianship Petition no.8/2021 has
finally been decided which is also under challenge before this Court in the
present proceedings. This court is conscious of the fact that the transfer of a
case from one court to another is a pretty serious matter as it may cast
indirectly doubt on the integrity or competency of the judge from whom the
matter is transferred. The order of transfer should not be done on mere
presumptions and possible apprehensions. Recently, this court in Kinri Dhir
vs. Veer Singh 2022 SCC OnLine Del 1096 dealt with the question of bias
and inter alia held as under:
33. It must at the outset be acknowledged that as family
jurisprudence has progressed over time, the Family Judge is no
longer viewed as one who is to act in the capacity of a mere “fault
finder”. Family disputes are no longer liable to be viewed as purely
adversarial. Our Courts have over time and as society has evolved
over the ages throwing up new challenges along the way,
unequivocally recognised the multi-faceted role that a Family
CM(M) 47/2022 & CM(M) 211/2022 Page 6 of 10
Judge is called upon to perform today including that of facilitator,
counsellor, mediator, taking a pro-active role in exploring and
striving to find common ground, kindle the hope of rapprochement
and guide parties towards finding closure to disputes. Marital
disputes thus require to be resolved with the Family Judge adopting
a more immersive resolution process. The Family Judge is thus
today obliged to don a more collaborative robe and not approach
the lis as just another legal dispute that arrives before a court for
resolution. This unique function which the Family Judge discharges
is required to be approached with empathy bearing in mind that the
problem placed before it is not merely another legal conflict but
one that deals with the complete breakdown of a family impacting
not just the immediate parties to the dispute but various others who
are seared by the pall of discord that follows. It thus places the
Family Judge under the added responsibility of approaching parties
and the issues that arise for determination with compassion,
guiding parties through the entire process in the hope that a just
solution would avoid an irretrievable breakdown of the family itself.
34. More fundamental than the aforesaid introduction is the
necessity to reiterate the traditional role that a Judge is obliged to
discharge. Parties approach courts based on the immense trust and
faith expressed and envisioned in the system itself. The Judge
representing the face of the court system must thus appear to be
just, even handed, independent and neutral. Neutrality is one of the
fundamental attributes of the justice system. This requires the Judge
to consider and weigh each utterance, every word forming part of
the decision ensuring that it embodies and conveys a sense of
fairness and neutrality having informed the decision-making
process. The decision of the Court represents the voice of the court
itself charged with discharging the divine function of rendering
judgment. The observations forming part of the judgment must not
therefore give the impression of being based on personal
assumptions, biases or preconceived notions. Similarly, the
observations as contained in the decision must not have the
potential to sully the person or character of a litigant. The language
of the judgment must necessarily be tempered by restraint and
CM(M) 47/2022 & CM(M) 211/2022 Page 7 of 10
moderation. A judgment of a court of law cannot become a
blistering diatribe against a party or its cause.”
(emphasis supplied)
10. It has to be kept in mind that mere adverse orders are not sufficient to
invoke the power of transfer. The allegation of bias needs to be evaluated
on the premises of reasonable apprehension of bias. It is a settled
proposition that „mere apprehension of bias‟ and not „actual bias‟ may be
sufficient to exercise the power of transfer. This court would restrain itself
from making any comment on the merits of the case. This court has also no
doubt over the integrity, neutrality and Judicial Independence of the learned
11. However, unfortunately on account of the conduct of the judge for
sharing his personal mobile number with both the parties and admittedly
having met one of the party in the chamber has unnecessarily given a cause
of reasonable apprehension of bias. The judges have to remind themselves
time and again that each and every conduct is observed and noted by the
litigants and therefore, knowingly or unknowingly they may not act in any
manner which gives rise to even slightest of doubt in the minds of the
litigants and lawyers.
12. Thus, I consider that the orders dated 21.08.2021, 22.12.2021 and
04.03.2022 are liable to be set aside in the interest of justice and for the
purpose of restoring faith of both the parties in the system of administration
of justice. Thus, both the petitions are disposed of with the following
i. Orders dated 21.08.2021, 22.12.2021 and 04.03.2022 are set
aside.
ii. The Guardianship Petition no.8/2021 is restored to its original
number.
iii. The Principal judge, Family Court, South-East, Saket shall keep
the matter with himself/herself and decide the same in accordance with
law without being influenced by the earlier orders passed by the
learned Judge, Family court, South-East District, Saket and any
expression or observation made by this court.
iv. It is agreed between the parties that till the Guardianship
Petition no.8/2021 is finally decided by learned Principal Judge, Family
Court, the father respondent shall have the visitation rights on every
Wednesday and Friday from 3:00 p.m to 6:00 p.m. with the same
arrangement of picking up and dropping.
v. In addition to that as agreed between the parties, there shall be
eight hours visitation from 10 a.m. to 6 p.m. on the following dates:
vi. The father shall have also visitation right on the birthday of the
child i.e. 15.06.2022, which incidentally falls on Wednesday for four
hours from 2 p.m. to 6 p.m.
vii. The petitioner mother may travel during the month of June,
2022 along with the child. However, the petitioner mother shall share
the itinerary with the respondent father. If due to such travel any
CM(M) 47/2022 & CM(M) 211/2022 Page 9 of 10
visitation with the father is missed, it shall be compensated in the
(a) One visitation for three hours shall be compensated on 07.07.2022
(Thursday) from 3 p.m. to 6 p.m. (respondent‟s father‟s birthday-
Paternal Grandfather‟s Birthday) and other three visitations shall be
compensated on 28.06.2022 (Tuesday) from 10 a.m. to 6 p.m.
13. The permission to travel to the petitioner mother within country is
only an interim arrangement and this issue shall also be decided finally by
Principal Judge, Family Court along with guardianship petition.
14. The issue of release of the passport of the petitioner mother and
daughter shall also finally be decided by the Principal Judge, Family Court
at the time of final adjudication of the guardianship petition.
15. The principal judge, Family Court is requested to decide the said
guardianship petition as expeditiously as possible preferably within four
weeks. Learned Principal Judge, Family Court may also take assistance of
the Child Counselor and interact with the child before deciding the visitation
rights.
16. Accordingly, both the petitions along with all the pending applications
stand disposed of.
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The Delhi High Court has said that judges must not act in any manner which gives rise to slightest of doubt in the minds of lawyers and litigants as their conduct is noted and observed by the litigants.
Justice Dinesh Kumar Sharma made the said observation while expressing displeasure over the conduct of a Family judge who had shared his personal mobile number with both the parties and admittedly met one of the parties in chamber, which had unnecessarily given a cause of reasonable apprehension of bias.
The Court was dealing with a plea challenging the impugned order passed by Judge, Family Court in a Guardianship Petition which had restrained the petitioner wife from removing her minor child from Delhi. The petitioner had also prayed for transfer of the proceedings and all pending applications before the Family court to any other court.
It was the case of the petitioner mother that the impugned order focused solely on the rights of the father and his family ignoring the comforts of the minor child. It was also stated that the minor child had lived alone with the mother since she was 18 months old and was heavily dependent on her and had never been separated from her.
It was argued that separating the minor child from the mother for overnight visitation or vacation was sudden, drastic and would have a negative impact on the psyche and comfort of the minor child.
The grievances of the petitioner mother was that the Judge, Family court had shared his personal mobile number with the parties during the proceedings and the respondent father had met the judge unilaterally in his chamber. This had created an apprehension in the mind of the petitioner mother.
The High Court thus noted that it was not advisable for the judge, Family Court to have shared his personal mobile number with the parties.
"It is a settled proposition that justice must not only be done but must also appear to have been done. The conduct of the judge while conducting the judicial proceedings should be above board," the Court said.
The Court was of the view that mere adverse orders are not sufficient to invoke the power of transfer and that the allegation of bias needs to be evaluated on the premises of reasonable apprehension of bias.
The Court reiterated the proposition that mere apprehension of bias and not actual bias may be sufficient to exercise the power of transfer.
"However, unfortunately on account of the conduct of the judge for sharing his personal mobile number with both the parties and admittedly having met one of the party in the chamber has unnecessarily given a cause of reasonable apprehension of bias. The judges have to remind themselves time and again that each and every conduct is observed and noted by the litigants and therefore, knowingly or unknowingly they may not act in any manner which gives rise to even slightest of doubt in the minds of the litigants and lawyers," the Court observed.
The Court thus set aside the two impugned orders passed by the Family Court while directing the Principal judge, Family Court to keep the matter with himself or herself and decide the same in accordance with law without being influenced by the earlier orders passed by the Judge, Family court.
"The principal judge, Family Court is requested to decide the said guardianship petition as expeditiously as possible preferably within four weeks. Learned Principal Judge, Family Court may also take assistance of the Child Counselor and interact with the child before deciding the visitation rights," the Court added.
Advocates Arundhati Katju, Bhabna Das and Shristi Bor Thakur appeared for the petitioner. Senior Advocate Geeta Luthra with Advocates Asmita Narula and Apoorva Maheshwari appeared for the respondent.
CaseTitle: ADITI BAKHT v. ABHISHEK AHUJA
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दिल्ली हाईकोर्ट ने कहा कि जज को किसी भी तरह से कार्य नहीं करना चाहिए जिससे वकीलों और वादियों के मन में थोड़ी सी भी शंका पैदा हो, क्योंकि उनके आचरण को वादियों द्वारा नोट किया जाता है और उनका पालन किया जाता है।
जस्टिस दिनेश कुमार शर्मा ने फैमिली कोर्ट जज के आचरण पर नाराजगी व्यक्त करते हुए उक्त अवलोकन किया। इस जज ने दोनों पक्षों के साथ अपना व्यक्तिगत मोबाइल नंबर साझा किया था और एक पक्ष से चैंबर में मुलाकात की थी, जिसने अनावश्यक रूप से पूर्वाग्रह की उचित आशंका का कारण दिया था।
कोर्ट अभिभावक याचिका में जज, फैमिली कोर्ट द्वारा पारित आदेश को चुनौती देने वाली याचिका पर विचार कर रहा था। उसने याचिकाकर्ता पत्नी को अपने नाबालिग बच्चे को दिल्ली से ले जाने से रोक दिया था। याचिकाकर्ता ने फैमिली कोर्ट में कार्यवाही और सभी लंबित आवेदनों को किसी अन्य अदालत में स्थानांतरित करने की भी प्रार्थना की है।
याचिकाकर्ता मां का मामला है कि आक्षेपित आदेश केवल नाबालिग बच्चे की सुख-सुविधाओं की अनदेखी करते हुए पिता और उसके परिवार के अधिकारों पर केंद्रित है। यह भी कहा गया कि नाबालिग बच्चा 18 महीने की उम्र से मां के साथ अकेला रहता है और उस पर बहुत अधिक निर्भर है। वह कभी भी उससे अलग नहीं हुआ है।
यह तर्क दिया गया कि रात भर मिलने या छुट्टी के लिए नाबालिग बच्चे को मां से अचानक अलग करना कठोर है और नाबालिग बच्चे के मानस और आराम पर नकारात्मक प्रभाव डालेगा।
याचिकाकर्ता मां की शिकायत यह है कि जज, फैमिली कोर्ट ने कार्यवाही के दौरान पक्षों के साथ अपना निजी मोबाइल नंबर साझा किया और प्रतिवादी पिता ने जज के चैंबर में उनसे मुलाकात की। इससे याचिकाकर्ता मां के मन में आशंका पैदा हो गई।
हाईकोर्ट ने इस प्रकार नोट किया कि जज, फैमिली कोर्ट के लिए यह उचित नहीं है कि वह अपने व्यक्तिगत मोबाइल नंबर को पक्षकारों के साथ साझा करे।
अदालत ने कहा,
"यह स्थापित प्रस्ताव है कि न्याय न केवल किया जाना चाहिए बल्कि यह दिखना भी चाहिए कि न्याय किया गया है। न्यायिक कार्यवाही का संचालन करते समय जज का आचरण बोर्ड से ऊपर होना चाहिए।"
कोर्ट का विचार था कि केवल प्रतिकूल आदेश स्थानांतरण की शक्ति को लागू करने के लिए पर्याप्त नहीं हैं और पक्षपात के आरोप का मूल्यांकन पूर्वाग्रह की उचित आशंका के आधार पर किया जाना चाहिए।
न्यायालय ने इस प्रस्ताव को दोहराया कि स्थानांतरण की शक्ति का प्रयोग करने के लिए केवल पूर्वाग्रह की आशंका और वास्तविक पूर्वाग्रह पर्याप्त नहीं हो सकता है।
कोर्ट ने कहा,
"हालांकि, दुर्भाग्य से दोनों पक्षों के साथ अपने व्यक्तिगत मोबाइल नंबर को साझा करने के लिए न्यायाधीश के आचरण के कारण और चैंबर में पक्षकार से एक से मिलने के कारण अनावश्यक रूप से पूर्वाग्रह की उचित आशंका का कारण दिया गया है। न्यायाधीशों को खुद को याद दिलाना होगा कि प्रत्येक आचरण को वादियों द्वारा देखा और नोट किया जाता है, इसलिए जाने या अनजाने में वे किसी भी तरह से कार्य नहीं करें, जो वादियों और वकीलों के मन में थोड़ा-सा भी संदेह पैदा करता है।"
इस प्रकार न्यायालय ने फैमिली कोर्ट द्वारा पारित दो आक्षेपित आदेशों को रद्द कर दिया, जबकि प्रधान न्यायाधीश, परिवार न्यायालय को मामले को अपने पास रखने और न्यायाधीश द्वारा पारित पूर्व के आदेशों से प्रभावित हुए बिना कानून के अनुसार निर्णय लेने का निर्देश दिया।
कोर्ट ने जोड़ा,
"प्रधान न्यायाधीश, फैमिली कोर्ट से अनुरोध है कि वह चार सप्ताह के भीतर यथासंभव शीघ्रता से उक्त संरक्षकता याचिका पर निर्णय लें। प्रधान न्यायाधीश, फैमिली कोर्ट भी चाइल्ड काउंसलर की सहायता ले सकते हैं और मुलाक़ात के अधिकार तय करने से पहले बच्चे के साथ बातचीत कर सकते हैं।"
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Sample_4
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Mr.Uzair Kazi with Ms.Ankita Sharma i/b YMK Legal for the
Mr.A.A.Palkar, A.P.P. for the State/Respondent.
1. The applicant is accused of the offence punishable under
Section 67A of the Information Technology Act, 2000 (for
short, “the I.T.Act”) and under Section 354 of the Indian Penal
Code in C.R.No.242 of 2022 registered with Kashimira Police
Station, Mira Road, Thane, on 13/04/2022.
2. Heard the learned counsel for the applicant and the
3. The C.R. is registered at the instance of the complainant,
aged 44 years, who has alleged in her complaint that she was
married and having two children. She was introduced to the
present applicant as he was friend of her husband. In short
span of time, they developed intimacy, which made them
indulge into physical act. She categorically admitted in her
complaint that sexual relationship was established by her
consent. While in the relationship, the applicant requested the
complainant to share her nude video and though she was
initially hesitant, on a promise that after watching the video,
he will immediately delete it, she has forwarded it on his
WhatsApp. The applicant assured her that the video was
4. Somewhere in the year May 2017, she and her husband
were invited to the applicant’s house where his wife and
daughter confronted her with her nude video and directed her
that she should not establish any relationship with the
applicant. Thereafter, she severed her relationship with the
present applicant, is her version.
Almost after three years, once again the applicant
established contact with her and expressed his desire to
restore the relationship, but when she refused, he threatened
her that he is in possession of her nude video. Upon this threat,
she again started meeting him. Immediately thereafter, she
received the nude video on her Whatsapp and, thereafter, even
her husband received the said video. The video was widely
circulated in village. Being harassed in this way, she lodged
the complaint resulting into registration of the crime.
5. The learned counsel for the applicant would vehemently
submit that even if the accusations are taken as it is, this
would not attract the provisions of Section 67-A, which
prescribes the punishment for a term which may extend to
seven years and also with fne which may extend to ten lakh
Section 67-A prescribes the punishment for publishing or
transmitting of material containing sexually explicit act etc. in
electronic form. Pertinent to note that Chapter XI of the
I.T.Act, includes the offence punishable under Section 67
which provides the punishment for publishing or transmitting
obscene material in electronic form. The relevant Section
“67. Punishment for publishing or transmitting obscene
material in electronic form :- Whoever publishes or
transmits or causes to be published or transmitted in the
electronic form, any material which is lascivious or appeals
to the prurient interest or if its effect is such as to tend to
deprave and corrupt persons who are likely, having regard
to all relevant circumstances, to read, see or hear the
matter contained or embodied in it, shall be punished on
frst conviction with imprisonment of either description for
a term which may extend to three years and with fne which
may extend to fve lakh rupees and in the event of second or
subsequent conviction with imprisonment of either
description for a term which may extend to fve years and
also with fne which may extend to ten lakh rupees.”
6. Section 67-A is a species of Section 67 which is a genus
and makes an act of publishing or transmitting of material
containing sexually explicit act in electronic form. Further,
Section 67-B is another species of Section 67, which makes
punishable an act of publishing or transmitting of material
depicting children in sexually explicit act in electronic form.
7. The submission of the learned counsel that mere
forwarding a nude video would not fall within the purview of
‘sexually explicit” might not be correct. The term ‘explicit’ is
defned in Oxford Dictionary as under :-
“Stated clearly and precisely, describing or representing
sexual activity in a direct and detailed way.”
The intention of the legislature in introducing Section 67, being
publishing or transmitting obscene material in electronic form,
cannot be restricted by construing the term ‘sexually explicit’
to only showing an activity of being indulging in sex. In any
case, when the intention of the legislature was to do away
exploitation of women or children or any person in electronic
form by publishing or transmitting any obscene material, the
term ‘sexually explicit’, cannot be said to be not covering
activity in respect of which the accusations are made.
8. The learned counsel for the applicant placed reliance
upon the decision of the learned Single Judge of this Court
dated 07/01/2021, where the learned Judge (Mr.Sandeep K.
Shinde, J.) had an opportunity to deal with the similar
situation i.e. Section 67-A and while construing the effect of
Section 67, the learned Judge assigned defnite meaning to the
terms used therein and has also referred to the expression
‘explicit’ as defned in Black’s Law Dictionary as, “Physical
sexual activity or both persons engaged in sexual relations”.
However, as far as the interpretation of the term ‘sexually
explicit activity’ is concerned, this may be a matter of concern
after the specifc video is examined. However, since the
depiction of a woman in a nude form would defnitely attract
and would amount to obscene material and this being
transmitted in electronic form, in my considered opinion, the
accusations defnitely require custodial interrogation of the
applicant and the submission of the learned counsel for the
applicant that Section 67-A prima facie does not attract does
not hold the water at this stage.
9. The applicant is accused of a serious allegation and
exploiting a woman by publishing her nude video and making
it public. This aspect requires investigation, since it is alleged
that the applicant had forwarded the nude video of the
complainant, to the public at large.
The application stands rejected.
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Refusing anticipatory bail to a man accused of forwarding a married woman's nude video to several people, the Bombay High Court observed that prima facie his alleged misdeed would be an offence under Section 67A of the Information Technology Act.
Section 67A prescribes the punishment for publishing or transmitting of material containing sexually explicit act.
Justice Bharati Dangre observed that the term 'sexually explicit' under section 67A of the IT Act wouldn't only mean the act of intercourse and may also include a nude video. Therefore, the court rejected the defence's submission that mere forwarding a nude video would not fall within the purview of 'sexually explicit' content and cited the Oxford dictionary meaning of "explicit," in support.
The Court noted that Section 67A is a species of Section 67(which punishes transmission of obscene materials)
"The intention of the legislature in introducing Section 67, being publishing or transmitting obscene material in electronic form, cannot be restricted by construing the term 'sexually explicit' to only showing an activity of being indulging in sex," the Court observed.
"The submission of the learned counsel that mere forwarding a nude video would not fall within the purview of 'sexually explicit" might not be correct", the order stated.
Justice Dangre added that the intention of the legislature was to do away exploitation of women or children or any person in electronic form by publishing or transmitting any obscene material.
Therefore, "the term 'sexually explicit', cannot be said to be not covering activity in respect of which the accusations are made," she added.
The court passed the order refusing anticipatory bail to a man booked under Section 67A of the Information Technology Act, 2000 and under Section 354 of the Indian Penal Code on 13/04/2022.
The defence had cited a coordinate bench's judgement that had relied on the Black's Law Dictionary, regarding the meaning of 'explicit.' The dictionary meaning would be "Physical sexual activity or both persons engaged in sexual relations."
In response Justice Dangre said, that interpretation of the term 'sexually explicit activity' may be a matter of concern after the specific video is examined. But the man's custodial interrogation was necessary.
"Since the depiction of a woman in a nude form would definitely attract and would amount to obscene material and this being transmitted in electronic form, in my considered opinion, the accusations definitely require custodial interrogation of the applicant and the submission of the learned counsel for the applicant that Section 67-A prima facie does not attract does not hold the water at this stage."
The Case
The man approached the court for pre arrest bail after the Thane police booked him in April 2022. The 44-year-old woman in her complaint said she was married with two children. The accused, her husband's friend, was also a married man.
However, the two became intimate and while in the relationship, the accused asked for her nude video. The woman said she shared the video on the assurance that it would be deleted and the man had assured her that he had deleted the video. However, the accused's wife and daughter confronted her with the video in 2017, when she was invited to their house.
The woman said she severed ties with the man after the incident. However, after three years, the accused established contact with her again, threatening her with the old video. Despite acceding to his demands, not only she but even her husband and several other people received the video.
That's when the woman approached the police.
Case Title: Esrar Nazrul Ahemad Versus State of Maharashtra
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बॉम्बे हाईकोर्ट (Bombay High Court) ने एक विवाहित महिला के नग्न वीडियो को कई लोगों को फॉरवर्ड करने के आरोपी व्यक्ति को अग्रिम जमानत देने से इनकार करते हुए कहा कि प्रथम दृष्टया उसका कथित दुष्कर्म सूचना प्रौद्योगिकी अधिनियम (IT Act) की धारा 67 ए के तहत अपराध होगा।
धारा 67ए में स्पष्ट यौन कृत्य वाली सामग्री को प्रकाशित करने या प्रसारित करने के लिए दंड का प्रावधान है।
जस्टिस भारती डांगरे ने कहा कि आईटी अधिनियम की धारा 67 ए के तहत ' स्पष्ट यौन कृत्य ' शब्द का अर्थ केवल संभोग का कृत्य नहीं होगा और इसमें एक नग्न वीडियो भी शामिल हो सकता है। इसलिए, अदालत ने बचाव पक्ष की इस दलील को खारिज कर दिया कि केवल एक नग्न वीडियो को फॉरवर्ड करना 'स्पष्ट यौन कृत्य' के दायरे में नहीं आता है और समर्थन में ऑक्सफोर्ड डिक्शनरी का अर्थ "स्पष्ट" है।
कोर्ट ने कहा कि धारा 67ए धारा 67 की एक प्रजाति है (जो अश्लील सामग्री के संचरण को दंडित करती है)
अदालत ने कहा,
"धारा 67 को पेश करने की विधायिका की मंशा, इलेक्ट्रॉनिक रूप में अश्लील सामग्री को प्रकाशित या प्रसारित करना, 'स्पष्ट यौन कृत्य' शब्द को केवल सेक्स में लिप्त होने की गतिविधि दिखाने के लिए प्रतिबंधित नहीं किया जा सकता है।"
आदेश में कहा गया है,
"वकील का यह कहना कि केवल एक नग्न वीडियो को फॉरवर्ड करना 'स्पष्ट यौन कृत्य' के दायरे में नहीं आता है, सही नहीं हो सकता है।"
जस्टिस डांगरे ने कहा कि विधायिका का इरादा किसी भी अश्लील सामग्री को प्रकाशित या प्रसारित करके महिलाओं या बच्चों या किसी भी व्यक्ति के इलेक्ट्रॉनिक रूप में शोषण को दूर करना है।
अदालत ने 13/04/2022 को सूचना प्रौद्योगिकी अधिनियम, 2000 की धारा 67ए और भारतीय दंड संहिता की धारा 354 के तहत एक व्यक्ति को अग्रिम जमानत देने से इनकार करते हुए आदेश पारित किया।
बचाव पक्ष ने एक समन्वय पीठ के फैसले का हवाला दिया था जो 'स्पष्ट' के अर्थ के बारे में ब्लैक लॉ डिक्शनरी पर निर्भर था। शब्दकोश का अर्थ होगा "शारीरिक यौन गतिविधि या दो लोगों के बीच यौन संबंध।
जस्टिस डांगरे ने कहा कि वीडियो की जांच के बाद 'स्पष्ट यौन कृत्य' ' शब्द की व्याख्या चिंता का विषय हो सकती है। लेकिन उस शख्स से हिरासत में पूछताछ जरूरी थी।
कोर्ट ने कहा,
"एक महिला का नग्न फॉरर्वड करना अश्लील सामग्री की राशि होगी और मेरी राय में आरोपों के लिए निश्चित रूप से आवेदक की हिरासत में पूछताछ जरूरी है।"
पूरा मामला
अप्रैल 2022 में ठाणे पुलिस द्वारा उसे बुक करने के बाद उस व्यक्ति ने गिरफ्तारी से पहले जमानत के लिए अदालत का दरवाजा खटखटाया। 44 वर्षीय महिला ने अपनी शिकायत में कहा कि उसके दो बच्चे हैं। आरोपी उसके पति का दोस्त है। आरोपी भी शादीशुदा है।
हालांकि, दोनों के बीच घनिष्ठता हो गई और रिश्ते के दौरान आरोपी ने उससे न्यूड वीडियो मांगा। महिला ने कहा कि उसने वीडियो को इस आश्वासन पर साझा किया कि इसे डिलीट कर दिया जाएगा और उस व्यक्ति ने उसे आश्वासन दिया था कि उसने वीडियो डिलीट कर दिया है। हालांकि, 2017 में आरोपी की पत्नी और बेटी ने वीडियो दिखाया, जब उसे अपने घर पर आमंत्रित किया गया था।
महिला ने कहा कि घटना के बाद उसने पुरुष से संबंध तोड़ लिए। हालांकि तीन साल बाद आरोपी ने पुराने वीडियो से धमकाते हुए उससे दोबारा संपर्क किया। उसकी मांगों को मानने के बावजूद न केवल उसे बल्कि उसके पति और कई अन्य लोगों ने भी वीडियो भेजा दिया।
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Sample_3
| "2. Alleging cruelty and desertion against the wife, the\nappellant/husband approached to this Court(...TRUNCATED) | "The Bombay High Court has recently held that a wife expressing a desire to work does not amount to (...TRUNCATED) | "बॉम्बे हाईकोर्ट ने हाल ही में माना कि (...TRUNCATED) |
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Sample_6
| "Present:- Mr. Shiv Kumar, Advocate for the appellant/husband\nMr. Rahul Bhargava, Advocate for the (...TRUNCATED) | "The Punjab and Haryana High Court recently decreed a divorce plea filed by a man on account of the (...TRUNCATED) | "पंजाब एंड हरियाणा हाईकोर्ट ने हाल ही (...TRUNCATED) |
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| null | null | null | null | null | null | null |
null | null | null | null | null | null | null | null | null | "Take notes as you read a judgment using our\nVirtual Legal Assistant\nand get email alerts whenever(...TRUNCATED) | null |
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null | null | null | null | null | null | null | null | null | "Take notes as you read a judgment using our\nVirtual Legal Assistant\nand get email alerts whenever(...TRUNCATED) | null |
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