Filing Of Criminal Complaint For Settling Civil Dispute Is Abuse Of Process Of Law: SC

It must be mentioned explicitly right at the outset that in a latest, landmark and laudable judgment delivered by the Supreme Court in The Commissioner of Police & Ors Vs Devender Anand & Ors in Criminal Appeal No. 834 of 2017, a three Judge Bench of the Supreme Court comprising of Justice MR Shah, Justice Arun Mishra and Justice S Abdul Nazeer have held categorically and convincingly that filing of criminal complaint for settling a dispute of civil nature is abuse of process of law. This was held so while setting aside a High Court order issuing directions in a writ petition filed by the complainant. Very rightly so!

To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice MR Shah for himself, Justice Arun Mishra and Justice S Abdul Nazeer wherein it is observed that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 13.01.2017 passed by the High Court of Delhi in Writ Petition (Cri.) No. 299 of 2016, the original respondents – appellants – Commissioner of Police and Others have preferred the present appeal.”

While elaborating in detail, it is then pointed out in para 2 that, “That respondent No. 1 herein – original complainant entered into an agreement to sell in respect of house situated at WZ-179, Plot No. 11, Rani Bagh, Shakur Basti, Delhi with respondent Nos. 2 to 3 herein for a consideration of Rs. 54 lakhs. That the agreement to sell, general power of attorney etc. were executed and the entire amount of consideration of Rs. 54 lakhs was paid to the agreement sellers. According to respondent No. 1 – original complainant No. 1, subsequently on 31.07.2013, he learnt that the said property had been mortgaged to Andhra Bank when a notice by the said bank was affixed on the property. According to respondent No. 1 – original complainant, thereafter he was compelled to settle the claim of Andhra Bank to the tune of Rs. 16,93,059/- for release of the mortgaged documents. Respondent No. 1 – original complainant also paid the registration charges of Rs. 7,81,941/- for registration of the sale deed in his favour. That, thereafter he lodged a complaint with the Karol Bagh police station against respondent Nos. 2 and 3 herein for the offence under Section 420/34 of the Indian Penal Code alleging, inter alia, that though the property was put as a mortgage with the Andhra Bank, the same was not disclosed to him and without disclosing the same the property in question was sold. Therefore, it was the case of respondent No. 1 – original complainant that he was cheated by respondent Nos. 2 and 3 herein. That a preliminary inquiry was conducted on the said complaint by the Sub-Inspector of the Police posted at the Karol Bagh police station. According to the complainant, on 20.05.2015, the Sub-Inspector submitted his report that a prima facie offence under Section 420/34 IPC is made out. He sought permission to register a case under Section 420/34 IPC for further investigation. According to the complainant, the SHO concurred with the aforesaid conclusion in his noting dated 21.05.2015 and put up the matter before the ACP concerned. According to the complainant, the ACP also concurred with the said conclusion in his noting dated 25.05.2015. According to the complainant, despite the above, the FIR was not registered and the same Sub-Inspector Yogender Kumar of Karol Bagh police station started a fresh process of preliminary inquiry on the same set of facts. He concluded that since the complainant had given his consent to the registration of the sale deed and discharge of the liability of the bank, even though the said mortgage as revealed to him on 31.07.2013, therefore, no police action is required. The said file noting was concurred by the SHO with the diametrically opposite view taken by the Sub-Inspector Yogender Kumar earlier. The ACP also concurred with the view that only a dispute of civil nature has arisen and that a complaint be filed. It appears that thereafter the matter was placed before the Additional DCP who also concurred with the subsequent view that no case is made out against the accused, vide his noting dated 07.08.2015. That the said view was carried by the DCP/C and JCP/CR as well.”

Be it noted, it is then envisaged in para 2.1 that, “As the FIR was not registered against the accused for the offence under Section 420/34 IPC as alleged, respondent No. 1 herein approached the High Court by way of writ petition and prayed for the following reliefs:

‘1. Pass appropriate writ/order/direction thereby ordering appropriate action to be taken against the erring police officers, including but not limited to respondents No. 2 to 5, who are responsible for non-registration of the FIR in spite of a preliminary enquiry dated 20.05.2015 clearly submitting a finding that a cognizable offence under Section 420/34 of IPC was made out against respondents no. 6 and 7.

2. Pass appropriate writ/order/direction thereby quashing and declaring to be null and void the so-called second/subsequent undated report of preliminary enquiry, and the subsequent endorsements of the SHO. PS Karol Bagh dated 16 July 2015, the undated endorsement of the ACP (Karol Bagh Sub-Division) and the endorsement of DCP (Central) dated 7 August 2015 as the same are without any legal sanctity and have been created and brought into existence against the settled provisions of law and without following due process of law and in contravention of the procedure laid down by the Hon’ble Supreme Court in its judgment Lalita Kumari vs Government of U.P.

3. xxx xxx xxx

4. Pass appropriate writ/order/direction thereby calling upon the office of the Commissioner of Police, New Delhi, to submit a report with respect to the relevant provisions of law under which his office has empowered the area ACP and DCP to approve registration of FIR, and upon submission of such a report, the vires and legality of the same be scrutinised as the same is in violation of the provisions of the Code of Criminal Procedure and the procedural guidelines laid down by the Hon’ble Supreme Court in the case Lalita Kumari vs. Government of U.P.

5. Pass appropriate writ/order/direction thereby directing the respondent no. 1 to hold an appropriate enquiry/investigation into the said circumstances under which the illegal and uncalled for second line of preliminary enquiry was initiated and carried out by the same officers, on the same facts and he may further be directed to submit a report of the said enquiry before this Hon’ble Court and take appropriate action by way of registration of cases, if required, and take all other necessary and proper actions in the matter against the officials found guilty in the matter.’”

Do note, it is then also observed in para 2.2 that, “That the aforesaid prayers/reliefs were opposed by the appellants herein and respondent Nos. 2 and 3 herein. It was submitted that the original complainant had earlier preferred an application under Section 156(3) of the Cr.P.C. which came to be rejected by the learned Magistrate, vide order dated 27.03.2015 and that the said order was not assailed by the complainant and thereafter a fresh private complaint under Section 200 Cr.P.C. has been preferred which is pending before the learned Magistrate. It was also submitted on behalf of the original accused that the dispute is of a civil nature which is tried to be converted into criminal, which is nothing but an abuse of the process of law. It was submitted that despite having the knowledge of the mortgage of the property with the Andhra Bank, thereafter the complainant himself had paid the mortgage money to the Andhra Bank and even got the sale deed executed in his favour. It was submitted that if the complainant was aggrieved, in that case, he would not have got the sale deed executed in his favour.”

Furthermore, it is then observed in para 2.3 that, “That, by the impugned judgment and order, the High Court has allowed the said writ petition and has directed that the case be placed before the Commissioner of Police for taking an action against respondent Nos. 3 to 5 therein (who are appellant Nos. 3 to 5 herein) for taking a diametrically opposite view. The High Court has also directed that the Commissioner of Police would be well advised to resort to course correction by directing that the earlier preliminary inquiry be taken to its logical conclusion and the steps in that regard be taken within two weeks. The High Court has also observed that the complainant shall also be entitled to costs quantified at Rs. 25,000/- to be paid by the State.”

It cannot be lost on us that it is then enunciated in para 4 that, “Having heard the learned counsel appearing on behalf of the parties at length and considering the material on record, we are of the opinion that the criminal proceedings initiated by respondent No. 1 – original complainant is nothing but an abuse of the process of law for settling a civil dispute.”

What’s more, it is then observed in para 4.1 that, “Even considering the nature of allegations, we are of the firm opinion that no case is made out for taking cognizance of the offence under Section 420/34 IPC. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law.”

More importantly, para 4.2 then holds that, “It is required to be noted that after having come to know that the property was mortgaged with the Andhra Bank, the original complainant himself paid the mortgage money and got the mortgage redeemed. Not only that, thereafter, he got the sale deed executed in his name. Thereafter also, he filed the complaint with the learned Magistrate, being an application under Section 156(3) of the Cr.P.C., which came to be rejected by the learned Magistrate, vide order dated 27.03.2015. The said order was not assailed by the complainant. It appears that thereafter he filed a private complaint under Section 200 Cr.P.C. which was pending before the learned Magistrate. Despite the above, he filed a writ petition before the High Court, which is nothing but an abuse of the process of law. The criminal proceedings have been initiated by the original complainant to settle the civil dispute. Therefore, in the facts and circumstances of the case, the Investigating Officer and other police officers were justified in not registering the FIR and in coming to the conclusion that the complaint be filed. The earlier opinion on preliminary inquiry was never placed before the DCP. Thereafter, on thorough investigation/inquiry and considering the facts and circumstances of the case narrated hereinabove, when it was opined that the dispute between the parties is of a civil nature, the High Court ought to have closed the proceedings. Not only the High Court has issued further directions, but even has imposed costs and an action against the appellants 3 to 5 herein which, in the facts and circumstances of the case, is not sustainable.”

Finally and perhaps most importantly, it is then held in the last para 4.3 that, “In view of the above and for the reasons stated above and as observed hereinabove, the initiation of the criminal proceedings by the original complainant is nothing but an abuse of the process of law, we not only quash and set aside the impugned judgment and order, but also quash the criminal proceedings pending before the learned Magistrate in respect of the transaction in question. Consequently, the present appeal is allowed, the impugned judgment and order dated 13.01.2017 passed by the High Court is hereby quashed and set aside. Even the criminal proceedings initiated by the original complainant pending before the learned Magistrate in respect of the transaction in question are hereby quashed and set aside.”

In essence, we thus see that the three Judge Bench of the Apex Court in this latest, landmark and laudable judgment minces just no words to convey clearly that filing of criminal complaint for settling civil dispute is abuse of process of law! In doing so, it set aside the directions issued by the High Court! It held that no case was made out for taking cognizance of the offence under Section 420/34 IPC! Very rightly so! This should always be kept in mind by the litigants while they approach the courts! There can be just no denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Judge Can Recuse From A Case At His Own Volition, But Not At The Mere Asking Of Litigant: SC

In a significant development, it has to be mentioned right at the outset that the Supreme Court has in a latest, landmark and extremely laudable judgment titled Seema Sapra Vs Court On Its Own Motion in Criminal Appeal No(S). 1238 of 2019 (Diary No. 10342 of 2016) With (Interlocutory Application Nos. 128666/2017, 123144/2017, 122625/2017, 127773/2017, 30030/2018, 112422/2018 and 110313 of 2019) With Writ Petition (C) No. 13 of 2018 (alongwith C.M.P. No. 4015 of 2018 and Interlocutory Application Nos. 62789 of 2019, 99303 of 2019 and 61232 of 2019) & Writ Petition (C) No. 1027 of 2018 (alongwith C.M.P. Nos. 122904 of 2018 and 97450 of 2018) while rejecting a prayer seeking recusal of a Judge who is part of the Bench hearing an appeal explicitly held on August 14, 2019 that a Judge can recuse at his own volition, but need not at the mere asking of a litigating party. The concerned Judge has thus the discretion to grant or refuse the request of a litigating party seeking recusal and it is thus the prerogative of the concerned Judge on whether to heed or not to heed to such plea of recusal. Very rightly so!

To be sure, it was also clarified by the two Judge Bench of Apex Court comprising of Justice AM Khanwilkar and Justice Ajay Rastogi that recusal, at the asking of a litigating party cannot be countenanced unless it deserves due consideration and is justified. To arrive at this conclusion the Judges drew support from the exposition of the Constitution Bench in Supreme Court Advocates-On-Record Association Vs. Union of India. Very rightly so!

Be it noted, before the Supreme Court Bench hearing the appeal, a submission was made by Seema Sapra that she may not get justice from the Bench as Justice Khanwilkar is well acquainted with the Advocates who incidentally are members of the Supreme Court Bar Association against whom personal allegations have been made by her in the accompanying writ petition. It must be noted that the Bench of Justice Rastogi and Justice Khanwilkar were considering an appeal filed by Seema Sapra against the Delhi High Court judgment holding her guilty of having committed contempt of court. The Delhi High Court had imposed a punishment of imprisonment for a period of one month with a further direction restraining her to argue as an advocate or in-person, except in her defence, before any Bench of the High Court of Delhi or any Court or Tribunal subordinate to the High Court for a period of two years from the date of passing of the judgment.

To start with, the ball is set rolling in para 1 of this noteworthy judgment wherein it is observed that, “The instant criminal appeal has been preferred under Section 19(1) of the Contempt of Courts Act, 1971 assailing the judgment of the High Court of Delhi dated 17th December, 2015 holding the appellant guilty of having committed contempt of Court and imposing punishment of imprisonment for a period of one month and a fine of Rs. 2,000/- (Rupees Two Thousand Only) to be deposited within a period of three months from the date of the order, failing which undergo a further term of imprisonment of one month with a further direction restraining the appellant to argue as an advocate or in-person, except in her defence, before any Bench of the High Court of Delhi or any Court or Tribunal subordinate to the High Court of Delhi for a period of two years from the date of passing of the impugned judgment dated 17th December, 2015.” Para 2 then states that, “The appellant had been exempted from surrendering vide order of the Chamber Judge dated 9th October, 2017. Notice was issued on the applications as well as on the appeal vide order dated 26th march, 2018, which has been duly served.”

As things stand, it is then brought out in para 3 that, “We have heard the parties. During the course of hearing, the appellant-in-person made an oral request that this Bench ought to recuse from hearing the matter which fact has been noted in our order dated 11th April, 2019 while reserving the order. The same reads thus:

“We have heard the petitioner in-person.

She is at liberty to file additional documents, which were referred to during the course of argument or any further document(s) which she intends to file.

She prays for four weeks’ time to do so.

Appropriate order will be passed after the additional document(s) are filed.

After hearing the petitioner in-person for almost two hours and this order being dictated, the petitioner submits that this Bench should not hear these matters.

Even this submission will be considered in the order that we may pass after considering the document(s).

Orders reserved.””

To put things in perspective, it is then envisaged in para 4 that, “Instead of filing additional documents in terms of the liberty given to the appellant in the aforementioned order, she moved an I.A. No. 62789 of 2019 in Writ Petition (C) No. 13 of 2018 on 12th April, 2019. We will take it up for consideration while dealing with the main writ petition in which the same has been filed. For the present, suffice to point out that one of the reliefs claimed in the said application is that the cases be listed before a Bench not comprising of one of us (A.M. Khanwilkar, J.). The appellant, however, mentioned the matter on 6th May 2019 to inform the Court about filing of the said application. Since the mentioning was done before a different Bench, the application could not be taken up for hearing and was directed to be listed on 2nd July, 2019. Again, on 2nd July, 2019, the cases were listed before a different Bench and not the same combination which had heard the matters on 11th April, 2019. It was, therefore, ordered that the cases be listed before the same Bench which had heard the matter on 11th April, 2019 and reserved order therein. Accordingly, the cases were listed on 12th July, 2019 before the specially constituted Bench. After hearing the appellant-in-person, the Court passed the following order:

“We have heard the petitioner-in-person on the applications for issue of appropriate directions/order and for modification of previous Court order, for over one hour.

After hearing the petitioner-in-person for quite some time, we asked her to confine her arguments to the issues which may require our consideration. She submitted that one of us (A.M. Khanwilkar, J.) should recuse. For that, she invited our attention to the averment made in I.A. No. 62789 of 2019 in particular. Such request cannot be accepted merely for asking by the petitioner-in-person. Reasons for not accepting that prayer will be elaborated in the order to be passed as noted in our previous order dated 11.04.2019.

It is open to the petitioner to file list of dates and/or any other relevant document(s), if she so desires. That be filed within two weeks.

We reiterate that all aspects will be considered and appropriate orders passed on the concerned proceedings, to be pronounced later.””

To say the least, it is then pointed out in para 5 that, “We must, at the outset, deal with the gravamen of the apprehension of the appellant as to why she has insisted for recusal of one of us (A.M. Khanwilkar, J.). Even on a liberal reading of the averments in the stated application, the apprehension of the appellant is founded on the allegation that she may not get justice from the Bench as Justice A.M. Khanwilkar is well acquainted with the Advocates who incidentally are members of the Supreme Court Bar Association against whom personal allegations have been made by her in the accompanying writ petition.”

What’s more, it is then pointed out in para 6 that, “We may usefully refer to Court On Its Own Motion Vs. State [MANU/DE/2758/2007] (paragraph 28), in which it has been observed as follows:

“The path of recuse is very often a convenient and soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favor, affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office.”

It is also pertinent to remind ourselves of the dictum of Lord Denning who observed in R. Vs. Metropolitan Police Commissioner ex p. Blackburn (1968) 2 All ER 319 as under:

“All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.””

It cannot be lost on us that it is then pointed out in para 7 that, “Reverting to the present cases, it is noticed from the impugned judgment that around 28 Judges of the High Court of Delhi, who had heard the writ petition filed by the appellant, had to recuse by the time the writ petition was finally decided on 2nd March, 2015. Even after filing of the instant criminal appeal at least three Judges of this Court have recused themselves, for one reason or the other. Not only that, the appellant had moved a formal application being the present appeal to recall the order passed on 7th February, 2018 appointing Senior Advocate Mr. Vikas Singh as Amicus Curiae, as she had strong objection to his appointment. Similarly, the appellant had filed I.A. No. 111244 of 2017 for recall of order dated 27th October, 2017 appointing Ms. Pinky Anand, learned Additional Solicitor General to assist the Court as Amicus Curiae. That application was also allowed by this Court vide order dated 4th December, 2017.”

As it turned out, it is then unfolded in para 8 that, “Be that as it may, after the matter was assigned to this Bench during the hearing, which lasted for more than two hours on 11th April, 2019, the appellant had orally suggested that this Bench should not hear the cases as has been noted in the said order. On that day, the Court reserved its order giving liberty to the appellant to file additional documents to reinforce her arguments on the merits of the contempt proceedings, as insisted by her during the oral submission. Instead of availing of that liberty, the appellant chose to file I.A. No. 62789 of 2019 in Writ Petition (C) No. 13 of 2018 praying for recusal of one of us (A.M. Khanwilkar, J.). However, keeping in mind the totality of the situation, the Court declined her prayer as recorded in the order dated 12th July, 2019.”

More importantly, it is then very rightly pointed out in para 9 that, “Indubitably, it is always open for a Judge to recuse at his own volition from a case entrusted to him by the Chief Justice. But, that may be a matter of his own choosing. Recusal, at the asking of the litigating party, cannot be countenanced unless it deserves due consideration and is justified. We draw support from the exposition of the Constitution Bench in Supreme Court Advocates-On-Record Association and Another Vs. Union of India [(2016) 5 SCC 808]. It must never be forgotten that an impartial Judge is the quintessence for a fair trial and one should not hesitate to recuse if there are just and reasonable grounds. At the same time, one cannot be oblivious of the duty of a Judge which is to discharge his responsibility with absolute earnestness, sincerity and being true to the oath of his/her office. After perusal of the assertions made in the stated I.A.s, we have no hesitation in observing that the same are devoid of merit and without any substance. To observe sobriety, however, we say no more.”

In essence, what is stated in para 9 is the crux of this extremely laudable and noteworthy judgment! It sends an unmistakable message to one and all that a Judge can recuse from a case at his own volition but not at the mere asking of a litigant. It also sends a loud and clear message that a Judge should not hesitate to recuse if there are just and reasonable grounds! Very rightly so! It is for the Judge and not the litigant who has to decide whether the Judge should recuse in a particular case or not!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Second Appeal Not To Be Dismissed Merely On The Ground Of ‘Concurrent Findings’: SC

It would be imperative to mention right at the outset that the Supreme Court has just recently on August 14, 2019 in State of Rajasthan & Ors. Vs Shiv Dayal & Anr. in Civil Appeal No. 7363 of 2000 With Civil Appeal No. 7364 of 2000 And Civil Appeal No. 7365 of 2000 has laid down in no uncertain terms that a High Court cannot dismiss a second appeal merely on the ground that there is a concurrent finding of two Courts (whether of dismissal or decreeing of the suit), and thus such finding becomes unassailable. It must be pointed out that in this case, the Rajasthan High Court Bench at Jaipur dismissed a second appeal filed by the State on the ground that since two Courts have decreed the suit, resulting in passing of the decree against the State, there arises no substantial question of law in the appeals. But the Supreme Court differed with this approach!

To start with, this latest, landmark and laudable judgment authored by Justice Abhay Manohar Sapre for himself and Justice R Subhash Reddy sets the ball rolling by first and foremost pointing out in para 1 wherein it is pointed out that, “These appeals are directed against the final judgment and order dated 23.03.1999 passed by the High Court of Judicature for Rajasthan Bench at Jaipur in S.B. Civil Second Appeal Nos. 83, 84 and 85 of 1999 whereby the High Court dismissed the second appeals filed by the appellants herein.”

Briefly stated, para 2 then points out that, “A few facts need mention hereinbelow for the disposal of these appeals, which involve a short point.” Para 3 then discloses that, “The appellants are the defendants and respondent No. 1 is the plaintiff in the civil suit out of which these appeals arise.” Para 4 further discloses that, “The appellant No. 1 is the State of Rajasthan and respondent No. 1 claims to be the mining lessee in relation to the suit land under the Mines and Minerals (Development & Regulation) Act (hereinafter referred to as “MMRD Act”).”

Truth be told, it is then unravelled in para 5 that, “The respondent No. 1 filed a civil suit against the appellant – State and its authorities and claimed therein a relief of grant of permanent injunction restraining the State and its authorities from interfering in carrying out the mining operations on the suit land by respondent No. 1.” Para 6 then further elaborates saying that, “Respondent No. 1 claimed this relief inter alia on the averments that the suit land was not the part of any protected Forest area as claimed by the State authorities but it was a part of the Revenue area. It was averred that since the suit land did not fall in the protected forest area, the respondent No. 1 (plaintiff) had a right to carry out mining operation on the suit land without any interference of the State and its authorities.”

Be it noted, para 7 then clearly states that, “The State contested the suit by denying the averments made in the plaint. The Trial Court frmaed issues. Parties led their evidence. By Judgment and decree dated 10.05.1998, the Trial Court decreed in favour of the plaintiff in the suit and granted an injunction against the State and its authorities in relation to the suit land, as prayed in the plaint.”

As a consequence, we then find palpably what is stated in para 8 that, “The State felt aggrieved and filed first appeal before the District Judge. By Judgment dated 03.09.1998, the first Appellate Court dismissed the appeal and affirmed the judgment/decree of the Trial Court giving rise to filing of the second appeals by the State in the High Court.”

What follows next is elaborated in para 9 which reveals that, “By impugned order, the High Court dismissed the second appeals holding that the appeals did not involve any substantial question of law. It is against this order, the State felt aggrieved and has filed the present appeals by way of special leave before this Court.”

Shortly put, it is then asked in para 10 that, “So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the State’s second appeals on the ground that these appeals did not involve any substantial question of law.”

Do note, para 12 then illustrates stating that, “Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned order and remand the case to the High Court for deciding the second appeals afresh on merits in accordance with law.”

While elaborating further, it is then observed in para 13 that, “In our opinion, the need to remand the case to the High Court has arisen because we find that the second appeals did involve several substantial questions of law for being answered on merits in accordance with law. The High Court was, therefore, not right in so holding.”

Going forward, it is then stipulated in para 14 that, “Indeed, we find that the High Court dismissed the second appeals essentially on the ground that since the two Courts have decreed the suit, no substantial question of law arises in the appeals. In other words, the High Court was mostly swayed away with the consideration that since two Courts have decreed the suit, resulting in passing of the decree against the State, there arises no substantial question of law in the appeals. It is clear from the last paragraph of the impugned order, which reads as under:

“Under these circumstances, when both the Ld. Courts have arrived at the conclusion that the disputed area is outside the forest area. Therefore, the principles laid down in T.N. GODAWARAN vs. U.O.I. (above-quoted) cannot be enforced in this appeal.”

(Emphasis supplied).”

What’s more, it is then made amply clear in para 15 that, “We do not agree with the aforementioned reasoning and the conclusion arrived at by the High Court.” Also, the Apex Court then seeks to make it clear in para 16 that, “It is not the principle of law that where the High Court finds that there is a concurrent finding of two Courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second appeal.”

Not stopping here, it is then further clarified in para 17 that, “True it is as has been laid down by this Court in several decisions that “concurrent finding of fact” is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code). However, this rule of law is subject to certain well known exceptions mentioned infra.”

Needless to say, para 18 then holds that, “It is a trite law that in order to record any finding on the facts, the Trial Court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties.” In a similar vein, para 19 too holds that, “Similarly, it is also a trite law that the Appellate Court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the Trial Court or reverse it.”

Moving on, para 20 then says, “If the Appellate Court affirms the finding, it is called “concurrent finding of fact” whereas if the finding is reversed, it is called “reversing finding”. These expressions are well known in the legal parlance.”

It would be pertinent to mention here that the Apex Court then observes in para 21 that, “When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge – Vivian Bose, J. – as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 – Para 43).”

Frankly speaking, it is then made clear in para 22 that, “In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.”

To put things in perspective, it is then held in para 23 that, “Coming to the facts of the case, we are of the view that the following are the questions which do arise for consideration in the suit/appeal for proper adjudication of the rights of the parties to the suit and are in the nature of substantial questions within the meaning of Section 100 of the Code.”

To be sure, let us now discuss them turn by turn. To begin with, para 24 while laying the groundwork points out that, “First, whether the suit land was a part of a protected Forest area, i.e., Forest land and, if so, whether the parties satisfied all the statutory provisions of the Forest Laws enacted by the Center and the State?” Para 25 then further states that, “Second, whether the suit land was a part of a Revenue land and, if so, whether the parties to the suit satisfied all the statutory provisions of the State Revenue Laws.”

Furthermore, para 26 then envisages that, “Third, whether a mining lease of the suit land could be granted by the State to the plaintiff for carrying out the mining operation in accordance with the provisions of the MMRD Act and, if so, whether it satisfied all the statutory provisions of the MMRD Act read with relevant Forest and Revenue Laws.” Para 27 then says that, “Fourth, whether a suit is hit by any provision of Forest Laws or MMRD Act or/and Revenue Laws expressly or by implication.”

Now turning to the last question, it is then postulated in para 28 that, “Lastly, whether the plaintiff on facts/evidence has proved that the suit land is a part of Revenue land and, therefore, it does not fall in the protected forest area and, if so, whether any prima facie case, balance of convenience and irreparable loss is made out for grant of permanent injunction in plaintiff’s favour?”

To put it succinctly, it is then held by the Apex Court in para 29 that, “In our opinion, all the five questions enumerated above did arise in the suit. As a matter of fact, the suit could not have been tried properly without deciding these questions in the light of the pleadings, evidence and the applicable laws mentioned above.”

Suffice it to say, it is then very rightly held in para 30 that, “In our view, the High Court, therefore should have admitted the second appeal by framing appropriate substantial question(s) of law arising in the case and answered them on their respective merits rather than to dismiss the appeals without considering any of the aforementioned questions.”

As a corollary, it is then aptly said in para 31 that, “It is for this reason, we are of the view that the interference in the impugned order is called for to enable the High Court to decide the controversy in its proper perspective.”

In a nutshell, it is then held in para 32 that, “In the light of the foregoing discussion, the appeals succeed and are accordingly allowed. The impugned order is set aside. The case is remanded to the High Court for deciding the second appeals afresh on merits after framing appropriate substantial questions of law(s) arising in the case.”

Interestingly enough, it is then clarified in para 33 that, “Needless to say, the High Court will frame proper questions keeping in view the pleadings/evidence and the findings of two Courts in the context of relevant provisions of the specific Forest Acts (Centre and State), MMRD Act and State Revenue Laws.” It is also then clarified further in para 34 that, “We, however, make it clear that we have not expressed any opinion on the merits of the case having formed an opinion to remand the case to the High Court for deciding afresh.”

More significantly, the Apex Court then makes it clear in para 35 that, “It was, however, brought to our notice that during pendency of the appeals Shiv Dayal-plaintiff/respondent No. 1 in civil suit has expired. We, however, find that his wife – Smt. Kasturi Devi is already on record in two connected appeals/civil suits; Second, all the three suits/appeals, i.e., the one filed by Shiv Dayal and two filed by his wife Kasturi Devi were clubbed together for their analogues disposal; Third, when one legal representative of the deceased is already on record, the appeal would not abate; and lastly, when the remand of the case is directed, consequential steps to bring remaining legal representative of the deceased on record, if there are, can always be taken before the High Court in pending appeals. It is for these four reasons, we are of the view that the appeals filed against Shiv Dayal have not abated.”

It cannot be lost on us that para 36 then makes it clear that, “The parties are, however, granted liberty to make necessary amendments in the cause title of the second appeals after remand of the case to the High Court by deleting the name of Shiv Dayal and substitute in his place the name of his wife-Kasturi Devi and his other legal representatives, if there are, before hearing of the second appeals.” Lastly, it is then held in para 37 that, “We request the High Court to expedite the hearing of the appeals preferably within 6 months.”

All said and done, this latest, landmark and laudable judgment leaves no one in doubt that second appeal is not to be dismissed merely on the ground of concurrent findings of two Courts (whether of dismissal or decreeing of the suit). All the courts must always keep this in mind while deciding on such cases! This would be certainly the right approach also! This would save them also from getting a rap on the knuckles by the top court!

While disagreeing with the Rajasthan High Court Bench at Jaipur for dismissing the second appeal filed by the appellant on the ground of concurrent findings, the Apex Court set aside the Rajasthan High Court Jaipur Bench order and remanded the matter to consider it afresh. Very rightly so! There can be no denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Death of Netaji Subhas Chandra Bose

One of the
greatest selfless leaders with vision during freedom movement was Netaji Subhas
Chandra Bose. It is believed that he died on 18 August 1945 (today’s date) after
his Japanese plane crashed in Japanese-occupied Formosa (now Taiwan). However,
many Indians refused to believe the circumstances of his death. Conspiracy theories appeared within hours of
his death and have persisted since then, keeping alive various myths. Whether
he died in plane crash or not but considering his date of birth, 23 January
1897 now his chance of survival is bleak.

Netaji Subhas with heart and soul was
Indian and he never tolerated any foreigner talking against Indians. In this
context an incident may be mentioned. He beat a British Professor E.F. Otten in
the Presidency College of Calcutta in 1916 for Prof Otten’s racist remark
against Indians and for this Subhas Chandra had to suffer also, however with
the intervention of Indian scholars and others, the matter was resolved. Subhas
Chandra was a brilliant student and his brilliancy may be assumed when he went
to England in 1919 to compete Indian Civil Service (as desired by his parents)
and subsequently in 1920, he came out fourth in order of merit with highest
mark in English but he was deeply disturbed by the Jallianwalla Bagh massacre
and left his Civil Service probation in midway and returned India. After
returning, Subhas Chandra joined Indian National Congress subsequently, he started
working under Deshbandhu Chittaranjan Das, whom he always respected as
political mentor. In those days Netaji and other youth leaders were in favour
of complete freedom but other leaders
were in favour of “dominion status
for India within the British rule” and this difference sharply cropped up
in 1928 Gauhati (now Guwahati) Session
of the Congress.

While Subhas Chandra Bose was Congress President
many admired him for his vibrant role and that is why he was elected President
of Indian National Congress for two consecutive terms but had to resign in the
mid of second term due to ideological difference with Gandhiji as Mahatma
Gandhi’s preferred candidate Pattabhi Sitaramaiah was defeated. Total votes pulled by Subhas Chandra were
1580 against 1375 by Sitaramaiah. Gandhiji was upset for his candidate’s defeat
and openly ventilated his dissatisfaction albeit
Subhas Chandra was democratically elected. It is believed that albeit Pattabhi Sitaramaiah was a Telugu person
hailing from southern part of India but many persons of southern region of
India voted in favour of Netaji Subhas. Anyhow, while Netaji was Congress
President many remarkable works were carried out under his leadership – one was
his initiative to keep Assam with India as then Muslim League leaders’ had
different game plan. In 1938, Assam was passing through a great political
turmoil as there was a serious political problem – Muslim League vs. Congress.
During that time, Gopinath Bordoloi invited Subhas Chandra Bose (President of
Congress that time) to visit Assam so that chaotic political situation is
settled. Subhas Chandra immediately rushed to Assam and strongly advocated the
formation of the ministry under the leadership of Gopinath Bordoloi. As a sequel, Assamese youths were happy and a
booklet on Subhas Chandra was published by some enthusiastic students of Cotton
College in 1939, under the umbrella of All Assam Progressive Youth Association
(AAPYA, formed that time). Further, they decided to invite Subhas Chandra Bose
to inaugurate the association, which he gladly accepted.

While Netaji Subhas Chandra Bose was Head of
Indian National Army (INA) or Azad Hind Fauj, Dr. (Mrs.) LakshmiSwaminathan met
him in Singapore and decided to join in the freedom movement as she was
impressed with the charismatic speech of Netaji Subhas. She as Captain Lakshmi headed a regiment called Jhansi Rani Laxmi
Bai Regiment. It was the first regiment
headed by a lady in Asia. Later on, she married to Colonel Prem Kumar Sahgal
(leading personality of INA) and subsequently known as Dr. Lakshmi Sahgal. From historical documents etc. it is evident
that Netaji’s contribution in freedom movement is immense. In this context Clement
Richard Attlee, who was the Prime Minister of the United Kingdom from 1945 to
1951 and the Leader of the Labour Party from 1935 to 1955 may be quoted, “Netaji
was the toughest challenge to the British Empire faced”.

Open Editorial Article contributed by

Dr. Shankar Chatterjee

Former Prof &Head (CPME)

NIRD &PR, Hyderabad-500 030, Telangana, India

E-mail: <shankarjagu@gmail.com>

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