EMPLOYEES’ STATE INSURANCE ACT, 1948 – Coverage – Determination – Number of employees Paras 2, 4, 10, 11, 16 Coverage under ESI Act depends on number of employees engaged – Petitioner contended only five workers engaged as per contract – Respondents relied on Form-I showing 27 employees – Held, determination of coverage requires proper verification of factual matrix.

 

EMPLOYEES’ STATE INSURANCE ACT, 1948 – Coverage – Determination – Number of employees

Paras 2, 4, 10, 11, 16

Coverage under ESI Act depends on number of employees engaged – Petitioner contended only five workers engaged as per contract – Respondents relied on Form-I showing 27 employees – Held, determination of coverage requires proper verification of factual matrix.

---

ESI ACT – Section 45A – Determination of contribution – Validity

Paras 11, 13, 17

Order passed under Section 45A determining contribution payable – Petitioner challenged as arbitrary and without proper verification – Held, such determination must be based on proper enquiry and supporting material.

---

NATURAL JUSTICE – Opportunity of hearing – Compliance

Paras 12, 17

Authorities issued C-18 notice and provided opportunity of hearing – However, subsequent material (certificate showing no work during relevant period) not properly considered – Held, effective opportunity requires consideration of relevant evidence.

---

ESI PROCEEDINGS – Adhoc assessment – Requirement of proper verification

Paras 4, 17

Adhoc coverage and assessment without verification of records – Petitioner contended improper exercise of power – Held, authorities must verify records before invoking statutory provisions.

---

WRIT JURISDICTION – Interference – Remand for fresh consideration

Paras 17, 18

Where ambiguity exists regarding liability and relevant documents not considered – High Court set aside impugned orders – Matter remanded for fresh adjudication after giving opportunity – Held, appropriate course is remand.

---

PROCEDURE – Fresh notice and enquiry

Para 18

Authority directed to issue fresh C-18 notice – Petitioner to appear with records – Authority to pass reasoned order after hearing – Held, ensures compliance with Section 45A and principles of natural justice. 

PASSPORT – Pending criminal proceedings – Refusal of passport – Legality Paras 1, 2 Passport authorities refused/withheld issuance of passport due to pendency of criminal proceedings – Issue covered by earlier common order – Held, pendency of criminal case alone is not a ground to deny passport.

 

PASSPORT – Pending criminal proceedings – Refusal of passport – Legality

Paras 1, 2

Passport authorities refused/withheld issuance of passport due to pendency of criminal proceedings – Issue covered by earlier common order – Held, pendency of criminal case alone is not a ground to deny passport.

---

PASSPORT ACT, 1967 – Section 10 – Scope – Consideration of application

Para 1 (extracted order)

Authorities directed to consider applications for issuance/re-issuance/renewal of passport under Section 10 of the Passports Act and Rule 12 of Passport Rules – Without reference to pending criminal proceedings – Held, decision to be taken in accordance with law.

---

CONSTITUTION OF INDIA – Articles 14, 19, 21 – Right to travel

Para 1 (relief), Para 1 (extracted order)

Denial of passport affects fundamental right to travel abroad – Subject to reasonable restrictions – Held, right can be balanced with conditions imposed by Court.

---

CRIMINAL PROCEEDINGS – Conditions for grant of passport

Para 1 (extracted order conditions i–vii)

Passport to be issued subject to conditions:
(i) undertaking not to leave country without court permission;
(ii) cooperation with trial;
(iii) submission of certified undertaking;
(iv) consideration by Passport Authority within stipulated time;
(v) deposit of passport before trial Court;
(vi) permission required for foreign travel – Held, safeguards ensure balance between individual rights and criminal process.

---

PRECEDENT – Binding effect of earlier common order

Paras 1, 2

Matter squarely covered by earlier common order in batch of writ petitions – Present writ petition disposed following same – Held, consistency in judicial approach maintained.

---

WRIT JURISDICTION – Article 226 – Direction to authorities

Paras 1, 2

High Court can direct statutory authorities to consider applications in accordance with law – Writ allowed on terms laid down in earlier judgment – Held, appropriate exercise of jurisdiction

Freezing of bank account – Power of police – Scope Paras 3, 5, 6, 7 Police directed bank to freeze petitioner’s account during investigation – Held, police have no independent authority to freeze bank accounts – Such power lies with jurisdictional Magistrate – Notice issued by police without statutory backing held illegal.

 

CRIMINAL PROCEDURE – Freezing of bank account – Power of police – Scope

Paras 3, 5, 6, 7

Police directed bank to freeze petitioner’s account during investigation – Held, police have no independent authority to freeze bank accounts – Such power lies with jurisdictional Magistrate – Notice issued by police without statutory backing held illegal.

---

CRIMINAL PROCEDURE – BNSS – Section 107 – Requirement of Magistrate’s order

Paras 3, 6, 8

Freezing of account must be pursuant to orders of jurisdictional Magistrate under BNSS – Investigating Officer required to approach Magistrate for appropriate orders – Held, direct action by police impermissible.

---

CRIMINAL LAW – Investigation – Seizure of money – Safeguards

Paras 4, 5, 9

Allegation that account contains proceeds of offence (extortion) – Even in such cases, due procedure must be followed – Held, investigation cannot bypass statutory safeguards for freezing accounts.

---

WRIT JURISDICTION – Article 226 – Interference with illegal freezing

Paras 1, 7, 8, 10

Writ petition maintainable against unauthorized freezing of bank account – High Court can set aside illegal action and restore operation of account – Held, interference justified.

---

INTERIM PROTECTION – Balancing investigation and rights

Para 9

While directing defreezing, Court protected investigation by restricting withdrawal of disputed amount – Petitioner permitted to operate account otherwise – Held, balanced approach adopted.

---

PRECEDENT – Binding nature of earlier High Court decisions

Para 6

Earlier decisions of High Court holding police lack power to freeze accounts followed – Held, consistent application of legal position.

MINES AND MINERALS – Illegal sand transportation – Seizure of vehicle – Legality Paras 3, 4, 7 Vehicle seized alleging transportation of sand without valid documents – Rule 9-B(19) of G.O.Ms.No.100 prescribes only penalty for such violations – Authorities cannot resort to seizure where rule provides only penal consequences – Held, seizure not justified in such cases.

 

MINES AND MINERALS – Illegal sand transportation – Seizure of vehicle – Legality

Paras 3, 4, 7

Vehicle seized alleging transportation of sand without valid documents – Rule 9-B(19) of G.O.Ms.No.100 prescribes only penalty for such violations – Authorities cannot resort to seizure where rule provides only penal consequences – Held, seizure not justified in such cases.

---

MINES AND MINERALS – Rule 9-B(19) – Scope of penalty

Para 7

Rule 9-B(19) specifically provides graded penalties for illegal excavation/transportation – Does not contemplate seizure of vehicles – Held, authorities empowered only to levy penalty and not to detain vehicle.

---

CRIMINAL LAW – Seizure of property – Principle

Para 8

Reliance placed on Supreme Court decision holding that retention of seized vehicles serves no useful purpose – Vehicles should not be kept idle for long periods – Held, release of vehicle justified.

---

WRIT JURISDICTION – Article 226 – Relief of release of vehicle

Paras 1, 9

Writ petition maintainable challenging illegal seizure of vehicle – High Court can direct release subject to compliance with statutory requirements – Held, writ disposed with directions for release upon payment of penalty.

---

PROCEDURE – Conditional release of seized vehicle

Para 9

Authorities directed to:
(i) determine penalty under Rule 9-B(19);
(ii) permit payment by petitioner;
(iii) release vehicle upon production of receipt and ownership documents – Held, balanced approach ensuring compliance with law.

---

FUNDAMENTAL RIGHTS – Articles 14, 19(1)(g), 21

Para 1

Illegal seizure affecting right to livelihood and property – Action contrary to procedure established by law – Held, interference justified under Article 226. 

CIVIL PROCEDURE – Execution – Order XXI Rules 97 & 98 CPC – Obstruction – Police assistance Paras 1, 3, 12 Execution Court passed orders directing police aid to remove obstruction and deliver possession – Despite such orders, execution stalled – Held, police bound to assist Court Amin in execution proceedings – Directions issued to provide necessary aid.

 

CONSTITUTION OF INDIA – Article 226 – Writ of Mandamus – Police aid for execution of decree

Paras 1, 5, 12

Writ petition seeking direction to police to provide aid for execution of delivery warrant issued by civil court – Decree holder unable to obtain possession due to obstruction and police inaction – Held, High Court can issue mandamus directing police assistance to ensure execution of decree.

---

CIVIL PROCEDURE – Execution – Order XXI Rules 97 & 98 CPC – Obstruction – Police assistance

Paras 1, 3, 12

Execution Court passed orders directing police aid to remove obstruction and deliver possession – Despite such orders, execution stalled – Held, police bound to assist Court Amin in execution proceedings – Directions issued to provide necessary aid.

---

EXECUTION – Fruits of decree – Right of decree holder

Paras 3, 11

Decree holder entitled to enjoy fruits of decree – Execution frustrated by obstruction of judgment debtors and inaction of authorities – Held, denial of execution amounts to defeating judicial process.

---

POLICE DUTY – Assistance to Court – Scope

Paras 6, 7, 12

Police contended law and order constraints and staff shortage – However, obligation exists to assist execution of lawful court orders – Held, police cannot avoid duty on administrative grounds – Directed to provide protection.

---

EXECUTION – Obstruction by judgment debtors – Consequences

Para 12

If obstruction caused to Court officials or police during execution – Police at liberty to register criminal cases against offenders – Held, obstruction to execution invites penal consequences.

---

WRIT JURISDICTION – Enforcement of judicial orders

Paras 4, 5, 12

Persistent non-compliance of execution orders undermines rule of law – High Court intervention necessary to uphold efficacy of judicial process – Held, writ jurisdiction rightly invoked.

CRIMINAL PROCEDURE – Alternative remedy – Availability – Effect on writ jurisdiction Paras 5, 6 Where alternative efficacious remedy is available before jurisdictional Magistrate – Petitioner can file private complaint under Section 190 r/w Section 200 Cr.P.C. or corresponding provisions under BNSS – Held, writ petition not maintainable – Liberty granted to approach Magistrate.

 

CONSTITUTION OF INDIA – Article 226 – Writ of Mandamus – Non-registration of FIR

Paras 1, 3, 4

Writ petition filed seeking direction to police to register case based on complaint – Police conducted preliminary enquiry and found dispute to be civil in nature – Held, writ of mandamus for registration of FIR not warranted in such circumstances.

---

CRIMINAL PROCEDURE – Alternative remedy – Availability – Effect on writ jurisdiction

Paras 5, 6

Where alternative efficacious remedy is available before jurisdictional Magistrate – Petitioner can file private complaint under Section 190 r/w Section 200 Cr.P.C. or corresponding provisions under BNSS – Held, writ petition not maintainable – Liberty granted to approach Magistrate.

---

CRIMINAL PROCEDURE – Private complaint – Remedy for non-registration of FIR

Para 5

In case of non-registration of FIR – Remedy lies in filing private complaint before Magistrate – Magistrate may refer matter for investigation or take cognizance by recording sworn statements – Held, proper statutory remedy available.

---

CRIMINAL PROCEDURE – Preliminary enquiry – Police powers (BNSS)

Para 4

Complaint received through PGRS – Preliminary enquiry conducted under Section 173(3) BNSS – Police concluded dispute is civil in nature – Held, such enquiry permissible before registration in appropriate cases.

---

CONSTITUTION – Article 14, 19, 21 – Alleged violation

Para 1

Allegation of violation of fundamental rights due to non-registration of case – In view of availability of statutory remedy, no adjudication required – Held, writ disposed without examining merits.

---

WRIT JURISDICTION – Exercise of discretion – Refusal to entertain

Paras 5, 6

High Court declined to entertain writ petition in view of effective alternate remedy – Liberty granted to petitioner to pursue remedy before Magistrate – Held, writ disposed. 

ARBITRATION – Appointment of Arbitrator – Unilateral appointment by interested party – Invalidity Paras 30, 31, 32, 33, 43 Sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager – Said authority falls within categories of Seventh Schedule – Person ineligible to act as arbitrator cannot nominate another arbitrator – Held, unilateral appointment invalid – Arbitrator lacked inherent jurisdiction – Award void and non est.

 

ARBITRATION – Appointment of Arbitrator – Unilateral appointment by interested party – Invalidity

Paras 30, 31, 32, 33, 43

Sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager – Said authority falls within categories of Seventh Schedule – Person ineligible to act as arbitrator cannot nominate another arbitrator – Held, unilateral appointment invalid – Arbitrator lacked inherent jurisdiction – Award void and non est.

---

ARBITRATION – Section 12(5) r/w Seventh Schedule – Ineligibility – Scope

Paras 25, 26, 33, 40, 41

Ineligibility under Section 12(5) arises by operation of law – Covers persons having direct/indirect relationship with parties – Such ineligibility extends to power of nomination – Mandate of arbitrator automatically terminates – Held, arbitrator becomes de jure incapable of acting.

---

ARBITRATION – Equal treatment of parties – Article 14 – Effect on arbitration clause

Paras 21, 23, 43

Clause enabling one party to unilaterally appoint sole arbitrator gives rise to justifiable doubts as to independence and impartiality – Violates principle of equal treatment – Such clauses held violative of Article 14 – Held, arbitration clause unenforceable to that extent.

---

ARBITRATION – Waiver – Section 4 vs Section 12(5) – Distinction

Paras 36, 37, 41, 42

Waiver under Section 4 relates to procedural non-compliance – Ineligibility under Section 12(5) can be waived only by express agreement in writing after disputes arise – Absence of such agreement – Held, no waiver – Section 4 not applicable to cure statutory ineligibility.

---

ARBITRATION – Express waiver – Requirement of written agreement

Paras 25, 36, 42

Right to object to appointment of ineligible arbitrator cannot be waived by implication – Requires clear and unequivocal express agreement in writing – Held, proviso to Section 12(5) not satisfied – Appointment remains invalid.

---

ARBITRATION – Jurisdiction – Inherent lack – Stage of objection

Paras 27, 28, 12

Objection to inherent lack of jurisdiction can be raised at any stage – Even in collateral proceedings such as execution or revision – Arbitrator lacking jurisdiction cannot render valid award – Held, objection maintainable.

---

ARBITRATION – Execution proceedings – Validity of award

Paras 2, 4, 7, 43

Execution initiated based on arbitral award – Where award itself is void due to lack of jurisdiction – Execution proceedings including attachment orders unsustainable – Held, liable to be set aside.

---

ARBITRATION – SARFAESI and Arbitration – Concurrent remedies

Paras 6, 8

Proceedings under SARFAESI Act and arbitration can proceed simultaneously – Remedies are cumulative and not mutually exclusive – Issue not pressed in view of settled legal position.

---

CIVIL REVISION – Article 227 – Scope of interference

Paras 2, 13, 43

High Court in exercise of supervisory jurisdiction can interfere where subordinate court acts without jurisdiction – Revision maintainable to correct jurisdictional error – Held, interference justified.

CIVIL PROCEDURE – Ministerial act vs judicial function Paras 15, 17, 18, 19 Where office is not satisfied with explanation for defects, matter cannot be indefinitely returned – Proper course is to place matter before Presiding Officer – Judicial determination required by passing speaking order – Held, issue must be decided judicially, not administratively.

 

CIVIL PROCEDURE – Execution – Order XXI Rule 58 CPC – Third party claim

Paras 3, 4, 5, 11

Third party claiming right over E.P. schedule property filed Execution Application under Order XXI Rule 58 CPC – Claim based on registered sale deed and possession – Prayer to exclude property from execution proceedings – Held, such claim requires adjudication by executing Court.

---

CIVIL PROCEDURE – Numbering of applications – Delay – Legality

Paras 12, 13, 14

Execution Application returned multiple times and kept unnumbered – Meanwhile execution proceedings continued – Such indefinite delay at numbering stage prejudicial to applicant – Held, improper practice.

---

CIVIL PROCEDURE – Ministerial act vs judicial function

Paras 15, 17, 18, 19

Where office is not satisfied with explanation for defects, matter cannot be indefinitely returned – Proper course is to place matter before Presiding Officer – Judicial determination required by passing speaking order – Held, issue must be decided judicially, not administratively.

---

CIVIL PROCEDURE – Return of plaint / application – Limitation on number of returns

Paras 16, 24

Guidelines prescribe that objections must be raised at once and return of plaint/application should not exceed three times – After third return, matter to be placed before Court – Piecemeal objections impermissible – Held, procedure mandatory for subordinate courts.

---

CIVIL PROCEDURE – Right to remedy – Duty of Court

Paras 18, 19

Claim of citizen must be adjudicated – Delay or inaction may render proceedings infructuous – Judicial order enables parties to avail further remedies – Held, Courts must ensure adjudication of claims.

---

EXECUTION – Auction proceedings – Protection of third party rights

Para 13

If execution proceeds without adjudicating third party claim, applicant would suffer irreparable injury – Held, necessary to decide claim before proceeding further with execution.

---

CIVIL PROCEDURE – Directions to subordinate courts

Paras 20, 24, 25, 26

Where application returned thrice – Office directed to list matter before Presiding Officer – Court to decide maintainability after notice – Execution proceedings to be suspended till decision – Directions issued to circulate guidelines to all Judicial Officers.

---

CIVIL REVISION – Scope – Article 227

Paras 2, 20

Revision maintainable against procedural inaction of subordinate court – High Court can issue directions to ensure proper exercise of jurisdiction – Petition disposed with directions without examining merits.

ARBITRATION – Appointment of Arbitrator – Unilateral appointment – Validity Paras 30, 31, 32, 33, 43 Sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager – Said authority falls within categories of Seventh Schedule – Person ineligible to act as arbitrator cannot nominate another arbitrator – Appointment of sole arbitrator held invalid – Arbitrator lacked inherent jurisdiction to pass award – Held, award without jurisdiction and non est.

 

ARBITRATION – Appointment of Arbitrator – Unilateral appointment – Validity

Paras 30, 31, 32, 33, 43

Sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager – Said authority falls within categories of Seventh Schedule – Person ineligible to act as arbitrator cannot nominate another arbitrator – Appointment of sole arbitrator held invalid – Arbitrator lacked inherent jurisdiction to pass award – Held, award without jurisdiction and non est.

---

ARBITRATION – Section 12(5) r/w Seventh Schedule – Ineligibility – Effect

Paras 25, 26, 33, 41, 42

Ineligibility under Section 12(5) is statutory – Person having relationship covered under Seventh Schedule becomes de jure unable to act – Mandate of such arbitrator automatically terminates – Appointment by such ineligible person is ex facie invalid – Held, arbitrator had no jurisdiction.

---

ARBITRATION – Unilateral appointment – Article 14 – Equal treatment of parties

Paras 21, 23, 43

Clause permitting unilateral appointment of sole arbitrator gives rise to justifiable doubts as to independence and impartiality – Such unilateral power violates principle of equal treatment of parties – Held, violative of Article 14 of Constitution of India.

---

ARBITRATION – Waiver – Section 4 vs Section 12(5) – Distinction

Paras 36, 37, 41

Waiver under Section 4 relates to procedural non-compliance – Waiver of ineligibility under Section 12(5) requires express agreement in writing after dispute – In absence of such express written waiver, plea of waiver not sustainable – Held, no waiver in present case.

---

ARBITRATION – Express waiver – Requirement

Paras 25, 36, 42

Right to object to appointment of ineligible arbitrator cannot be waived by implication – Requires clear and unequivocal express agreement in writing – In absence of such agreement, statutory ineligibility continues – Held, proviso to Section 12(5) not attracted.

---

ARBITRATION – Jurisdiction – Inherent lack – Stage of objection

Paras 27, 28, 12

Objection to inherent lack of jurisdiction of arbitrator can be raised at any stage, including collateral proceedings – Even in execution or revision proceedings such plea maintainable – Held, objection permissible.

---

ARBITRATION – Execution of award – Validity

Paras 7, 32, 43

Execution proceedings based on award passed by arbitrator lacking jurisdiction – Such award being non est cannot be executed – Order of attachment founded on such award unsustainable.

---

ARBITRATION – SARFAESI and Arbitration – Concurrent remedies

Paras 6, 8

Arbitration proceedings and SARFAESI proceedings are cumulative remedies – Both can proceed simultaneously – One does not bar the other – Issue not pressed in view of settled law.

---

CIVIL PROCEDURE – Article 227 – Scope of interference

Para 2

Civil Revision Petitions under Article 227 maintainable to examine jurisdictional errors – Where order suffers from lack of jurisdiction, interference warranted.

---

Ratio

Unilateral appointment of sole arbitrator held invalid – Award without jurisdiction – No waiver – Execution proceedings unsustainable – Revisions liable to be allowed/set aside (as per final operative portion).

ADVOCATEMMMOHAN: CRIMINAL PROCEDURE – Section 313 Cr.P.C. – Admissi...

ADVOCATEMMMOHAN: CRIMINAL PROCEDURE – Section 313 Cr.P.C. – Admissi...: advocatemmmohan CRIMINAL LAW – Section 354 IPC – Outraging modesty – Conviction confirmed – Revisional jurisdiction – Scope Paras 1, 7, 8, ...

CRIMINAL LAW – Section 354 IPC – Outraging modesty – Conviction confirmed – Revisional jurisdiction – Scope

Paras 1, 7, 8, 9, 18

Conviction of the petitioner under Section 354 IPC by the trial Court and its confirmation by the appellate Court – Challenge in revision – Scope of interference by revisional Court is limited to cases of illegality, impropriety, perversity, or miscarriage of justice – Where both Courts below recorded concurrent findings based on evidence on record and no procedural irregularity or perversity is established, revisional Court would not interfere – Held, no justification to interfere – Revision dismissed.

---

EVIDENCE – Testimony of victim – Sufficiency – Corroboration

Paras 10, 11, 14, 15

Prosecution case primarily based on testimony of victim girl (P.W.2) – Statement of victim corroborated by P.Ws.1 and 3 – Minor discrepancies regarding description of act (touching entire body vs pressing particular part) explained and held not to be material contradictions – Evidence of victim found reliable – Held, testimony of victim sufficient to sustain conviction.

---

EVIDENCE – Non-examination of witnesses – Effect

Para 14

Non-examination of other students who allegedly accompanied the victim – At the time of incident, other students had already left the place – Held, non-examination not fatal to prosecution case where victim’s evidence is clear and reliable.

---

EVIDENCE – Ocular witnesses – Appreciation

Paras 10, 12

Trial Court disbelieved P.Ws.4 and 6 (alleged eye witnesses) – Appellate Court, however, considered their evidence and held that mere non-mention by victim does not render their testimony wholly unreliable – Conviction sustained even otherwise based on victim’s testimony and corroboration – Held, appreciation by appellate Court justified.

---

CRIMINAL PROCEDURE – Section 313 Cr.P.C. – Admission of presence

Para 11, 16

Accused admitted presence of victim at his shop at relevant time in statement under Section 313 Cr.P.C. – Such admission supports prosecution case regarding presence and opportunity – Held, strengthens prosecution version.

---

CRIMINAL LAW – Delay in FIR – Effect

Para 17

Delay in lodging FIR in case involving outraging modesty of minor girl in village setting – Social stigma, family prestige, and hesitation in reporting considered – Held, delay explained and does not vitiate prosecution case.

---

CRIMINAL LAW – Defence plea of false implication / counter blast

Paras 12, 16

Defence plea that case is counter blast to earlier incident – Evidence shows natural conduct of family reacting to incident – No material to disbelieve prosecution case – Held, defence not substantiated.

---

REVISION – Interference with concurrent findings

Paras 7, 8, 18, 19

Concurrent findings of trial and appellate Courts – No perversity, illegality, or miscarriage of justice – Revisional Court declined interference – Revision dismissed with direction to petitioner to surrender and undergo remaining sentence. 

Numbering of application — Office objections — Procedure — Execution Application filed by third party claimant seeking adjudication of right over E.P. schedule property was repeatedly returned by office without numbering — Held, when objections raised by office are not satisfied even after repeated representations, the office cannot indefinitely keep the matter unnumbered — Proper course is to place the matter before the Presiding Officer for judicial determination — Claim of party cannot be stifled at the threshold by administrative process. (Paras 12–18, 24)

 

Civil Procedure Code, 1908 — Order XXI Rule 58 — Execution — Third party claim — Numbering of application — Office objections — Procedure —

Execution Application filed by third party claimant seeking adjudication of right over E.P. schedule property was repeatedly returned by office without numbering — Held, when objections raised by office are not satisfied even after repeated representations, the office cannot indefinitely keep the matter unnumbered — Proper course is to place the matter before the Presiding Officer for judicial determination — Claim of party cannot be stifled at the threshold by administrative process.

(Paras 12–18, 24)

---

Practice & Procedure — Ministerial acts vs judicial function —

Held, scrutiny by office is administrative in nature — Once objections are not resolved, decision on maintainability must be taken by Court through a speaking order — Office cannot assume adjudicatory role.

(Paras 15–17)

---

Access to justice — Delay at numbering stage — Effect —

Held, indefinite return of pleadings results in denial of access to justice and may render proceedings infructuous, especially when execution proceedings are continuing — Litigant cannot be left remediless due to procedural bottlenecks at filing stage.

(Paras 18, 22–23)

---

Court procedure — Limitation on number of returns —

Held, as per procedural guidelines, objections shall not be raised piecemeal and returns should not exceed three times — If objections persist, matter must be placed before Court for orders.

(Paras 16, 24)

---

Execution proceedings — Protection of third party rights — Interim safeguard —

Held, where third party claim petition is pending consideration, continuation of execution proceedings may cause irreparable injury — Execution proceedings liable to be suspended till adjudication of maintainability of claim petition.

(Paras 13, 20(ii)–(iii))

---

Directions —

Held, office directed to list Execution Application before Presiding Officer within one week — Court to decide maintainability after notice to parties on day-to-day basis — Execution proceedings to remain suspended till such decision.

(Para 20)

---

Administrative directions — Judicial discipline —

Held, Registrar (Judicial) directed to circulate order and guidelines to all judicial officers to prevent indefinite returns and ensure proper procedural compliance.

(Paras 25–26)

---

RATIO DECIDENDI

When objections raised by the office to a pleading are not resolved despite repeated returns, the matter must be placed before the Presiding Officer for judicial determination, as the office cannot indefinitely withhold numbering or assume an adjudicatory role, and such procedural delays cannot defeat a litigant’s right to have his claim decided in accordance with law.

Unilateral appointment of sole Arbitrator — Ineligibility — Jurisdiction — Arbitration award passed by sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager — Such appointing authority having direct interest in dispute falls within ineligibility under Seventh Schedule — Held, a person who is ineligible to act as Arbitrator is equally ineligible to nominate another Arbitrator — Unilateral appointment of sole Arbitrator is invalid and violative of Article 14 — Arbitrator lacked inherent jurisdiction to adjudicate dispute — Award is non est and without jurisdiction. (Paras 31–34, 43)

 

Arbitration and Conciliation Act, 1996 — Section 12(5) r/w Seventh Schedule — Unilateral appointment of sole Arbitrator — Ineligibility — Jurisdiction —

Arbitration award passed by sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager — Such appointing authority having direct interest in dispute falls within ineligibility under Seventh Schedule — Held, a person who is ineligible to act as Arbitrator is equally ineligible to nominate another Arbitrator — Unilateral appointment of sole Arbitrator is invalid and violative of Article 14 — Arbitrator lacked inherent jurisdiction to adjudicate dispute — Award is non est and without jurisdiction.

(Paras 31–34, 43)

---

Arbitration — Award — Executability — Lack of inherent jurisdiction —

Held, where Arbitrator lacks inherent jurisdiction due to statutory ineligibility under Section 12(5), the award itself is void and incapable of execution — Execution proceedings based on such award are unsustainable.

(Paras 32–34, 43)

---

Arbitration — Section 4 — Waiver — Scope — Distinguished from Section 12(5) —

Plea that petitioner waived objection by not participating in arbitration — Held, waiver under Section 4 applies only to procedural irregularities — Ineligibility under Section 12(5) is a matter of law and cannot be waived except by express agreement in writing after disputes arise — Absence of such express agreement → no waiver — Section 4 has no application.

(Paras 36–42)

---

Arbitration — Section 12(5) Proviso — Express waiver — Requirement —

Held, waiver of ineligibility must be by clear, unequivocal written agreement after disputes arise — Mere silence or non-objection does not amount to waiver — Statutory ineligibility cannot be cured by implication.

(Paras 36, 42)

---

Arbitration — Jurisdictional objection — Stage —

Held, objection relating to inherent lack of jurisdiction of Arbitrator can be raised at any stage, including in collateral proceedings and execution — Such defect strikes at root and is not curable.

(Paras 27, 12, 43)

---

Arbitration — SARFAESI proceedings — Co-existence —

Held, arbitration proceedings and SARFAESI proceedings are cumulative remedies and can proceed simultaneously — However, said issue not pressed in present case.

(Para 8)

---

Result / Directions —

Held, unilateral appointment of Arbitrator invalid — Award suffers from lack of jurisdiction — Consequential execution proceedings including attachment order liable to be set aside — Parties at liberty to proceed in accordance with law.

(Para 43)

---

RATIO DECIDENDI

A unilateral appointment of a sole arbitrator by an interested party or its official, who is statutorily ineligible under Section 12(5) read with the Seventh Schedule, renders the arbitrator devoid of inherent jurisdiction, and consequently the arbitral award is void, non est and incapable of execution, such defect not being curable by implied waiver under Section 4 and capable of being raised at any stage.

Outraging modesty of minor girl — Appreciation of evidence — Conviction — Criminal Revision Case filed challenging concurrent findings of conviction under Section 354 IPC by trial Court and appellate Court — Prosecution case based primarily on testimony of victim girl supported by evidence of her parents — Held, testimony of victim, if found reliable and corroborated by surrounding circumstances, is sufficient to sustain conviction even in absence of independent witnesses — Non-examination of other witnesses not fatal when evidence of victim is cogent and trustworthy. (Paras 14–15)

 

Indian Penal Code, 1860 — Section 354 — Outraging modesty of minor girl — Appreciation of evidence — Conviction —

Criminal Revision Case filed challenging concurrent findings of conviction under Section 354 IPC by trial Court and appellate Court — Prosecution case based primarily on testimony of victim girl supported by evidence of her parents — Held, testimony of victim, if found reliable and corroborated by surrounding circumstances, is sufficient to sustain conviction even in absence of independent witnesses — Non-examination of other witnesses not fatal when evidence of victim is cogent and trustworthy.

(Paras 14–15)

---

Evidence — Minor contradictions / omissions — Effect —

Held, minor variations in statements of witnesses regarding manner of occurrence do not amount to material contradictions — Such variations are natural and do not discredit prosecution case when core allegation remains consistent — Explanation of appellate Court accepting such variation upheld.

(Para 15)

---

Evidence — Sole testimony of victim — Sufficiency —

Held, in offences relating to outraging modesty, conviction can be based on sole testimony of victim if it inspires confidence — Corroboration, though desirable, is not mandatory in every case.

(Paras 14–15)

---

Criminal Procedure — Delay in lodging FIR — Effect —

Held, delay in lodging FIR in offences involving sexual misconduct, particularly in rural background, is not fatal — Social stigma, family honour and hesitation are relevant factors — Delay satisfactorily explained.

(Para 17)

---

Revisional jurisdiction — Sections 397 & 401 CrPC — Scope — Concurrent findings —

Held, revisional Court will not interfere with concurrent findings of fact unless findings are perverse, illegal or result in miscarriage of justice — Reappreciation of evidence is limited — Where courts below have properly appreciated evidence, no interference warranted.

(Paras 8–9, 18)

---

Directions / Result —

Held, revision dismissed — Conviction and sentence affirmed — Petitioner directed to surrender before trial Court to serve remaining sentence, failing which coercive steps to follow.

(Paras 19)

---

RATIO DECIDENDI

Conviction for an offence under Section 354 IPC can be sustained on the credible testimony of the victim supported by surrounding circumstances, and in the absence of perversity or illegality, concurrent findings of the courts below cannot be interfered with in revisional jurisdiction, particularly when delay in FIR and minor discrepancies are satisfactorily explained.

Revisional jurisdiction — Order taking cognizance — Scope of interference — Criminal Revision Case filed challenging order of Magistrate taking cognizance against petitioners/accused Nos.3 and 4, though they were deleted from charge sheet by police — Trial Court, on application of de facto complainant, took cognizance against all accused based on material on record including sworn statement — Held, order taking cognizance is not a final adjudication and is based on prima facie satisfaction — Revisional Court cannot interfere at such stage when material discloses prima facie case. (Paras 3–5)

 

Criminal Procedure Code, 1973 — Sections 397 & 401 — Revisional jurisdiction — Order taking cognizance — Scope of interference —

Criminal Revision Case filed challenging order of Magistrate taking cognizance against petitioners/accused Nos.3 and 4, though they were deleted from charge sheet by police — Trial Court, on application of de facto complainant, took cognizance against all accused based on material on record including sworn statement — Held, order taking cognizance is not a final adjudication and is based on prima facie satisfaction — Revisional Court cannot interfere at such stage when material discloses prima facie case.

(Paras 3–5)

---

Criminal law — Cognizance — Power of Magistrate —

Held, Magistrate is not bound by opinion of investigating agency and can take cognizance against persons not charge-sheeted if material on record discloses their involvement — Sworn statements and complaint material can be relied upon for such purpose.

(Para 5)

---

Revisional jurisdiction — Disputed questions of fact —

Held, issues involving appreciation of evidence or disputed facts cannot be adjudicated at the stage of revision against order taking cognizance — Such matters are to be examined during trial.

(Para 5)

---

Criminal proceedings — Stage of cognizance — Scope —

Held, at the stage of taking cognizance, Court is required only to see whether prima facie case is made out — Detailed examination of merits or defence is impermissible.

(Para 5)

---

Directions — Expeditious trial —

Held, trial Court directed to dispose of main case expeditiously, preferably within a period of three months, without granting unnecessary adjournments.

(Para 6)

---

RATIO DECIDENDI

An order taking cognizance based on prima facie material, including sworn statements, cannot be interfered with in revisional jurisdiction merely because the accused were not charge-sheeted, as the Magistrate is competent to take cognizance independently of the police report and disputed factual issues are to be adjudicated at trial.

Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 528 — Modification of bail conditions — NDPS Act offences — Onerous conditions — Financial incapacity — Scope — Criminal Petition filed seeking relaxation/modification of conditions imposed while granting bail in NDPS case — Petitioners contended that conditions imposed by trial Court were onerous and incapable of compliance due to financial constraints, resulting in continued detention despite grant of bail — Held, where bail conditions are excessively burdensome and defeat the very grant of bail, Court is justified in modifying such conditions to make them workable — Bail conditions must be reasonable and not illusory. (Paras 2–4)

 

Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 528 — Modification of bail conditions — NDPS Act offences — Onerous conditions — Financial incapacity — Scope —

Criminal Petition filed seeking relaxation/modification of conditions imposed while granting bail in NDPS case — Petitioners contended that conditions imposed by trial Court were onerous and incapable of compliance due to financial constraints, resulting in continued detention despite grant of bail — Held, where bail conditions are excessively burdensome and defeat the very grant of bail, Court is justified in modifying such conditions to make them workable — Bail conditions must be reasonable and not illusory.

(Paras 2–4)

---

Bail — Conditions — Reasonableness —

Held, conditions imposed while granting bail should not be so onerous as to render the order of bail ineffective — Financial incapacity of accused is a relevant consideration in determining appropriateness of bail conditions.

(Paras 2–4)

---

NDPS Act — Bail — Modification —

Held, notwithstanding seriousness of offence under NDPS Act, once bail is granted, conditions imposed must be capable of compliance — Court can relax or modify such conditions without disturbing the order granting bail.

(Para 4)

---

Bail — Modification vs grant — Distinction —

Held, modification of bail conditions does not amount to fresh grant of bail but is an adjustment of terms to ensure effective implementation of earlier order.

(Para 4 — implicit)

---

Directions —

Held, condition modified by directing petitioners to execute bond of Rs.1,00,000/- each with two sureties — Remaining conditions imposed by trial Court to continue.

(Paras 4–5)

---

RATIO DECIDENDI

Bail conditions must be reasonable and capable of compliance, and where conditions imposed are excessively onerous resulting in continued detention despite grant of bail, the Court is empowered to modify such conditions to make the bail effective, without disturbing the original order granting bail.

ADVOCATEMMMOHAN: Bharatiya Nagarik Suraksha Sanhita, 2023 — Section...

ADVOCATEMMMOHAN: Bharatiya Nagarik Suraksha Sanhita, 2023 — Section...: advocatemmmohan Bharatiya Nagarik Suraksha Sanhita, 2023 — Sections 480 & 483 — Bail — NDPS Act offences — Remand — Non-extension — Disc...

Bharatiya Nagarik Suraksha Sanhita, 2023 — Sections 480 & 483 — Bail — NDPS Act offences — Remand — Non-extension — Discrepancy in filing of charge sheet — Effect —

Criminal Petition filed seeking regular bail in respect of offences under Section 20(b)(ii)(C) read with Sections 8(c) and 25 of NDPS Act — Petitioners contended that though prosecution claimed filing of charge sheet within statutory period, no charge sheet was actually filed within time and remand was not validly extended — Prosecution relied on CCTNS record showing earlier filing of charge sheet — Report called for from trial Court revealed discrepancy regarding date of filing of charge sheet and absence of material showing extension of remand beyond a particular date — Held, where statutory period has elapsed and there is no judicial order extending remand for a relevant period, continued custody becomes legally unsustainable — Petitioners entitled to be enlarged on bail.

(Paras 5–6)

---

NDPS Act — Bail — Effect of procedural lapses —

Held, notwithstanding seriousness of offence under NDPS Act, failure to comply with mandatory procedural requirements relating to remand and filing of charge sheet entitles accused to bail — Procedural safeguards cannot be diluted.

(Paras 5–6)

---

Criminal procedure — Remand — Necessity of judicial order —

Held, remand of accused must be supported by valid judicial orders — In absence of extension of remand for a specific period, detention of accused during such period is without authority of law.

(Para 6)

---

Charge sheet — Discrepancy in records — Effect —

Held, where there is inconsistency between official record and prosecution claim regarding date of filing of charge sheet, and matter requires detailed examination, benefit must enure to accused at bail stage.

(Para 5)

---

Bail — Conditions —

Held, petitioners enlarged on bail subject to conditions including execution of bond, furnishing sureties, periodic appearance before police, non-tampering with evidence and restriction on leaving jurisdiction.

(Para 7)

---

RATIO DECIDENDI

Where there is no valid judicial order extending remand for a relevant period and there exists discrepancy regarding filing of charge sheet, continued detention of the accused becomes unlawful, entitling them to be released on bail notwithstanding the nature of the offence under the NDPS Act.

Partition suit — Interlocutory application under Order XXXIX Rules 1 & 2 CPC — Delay in disposal — Direction for expeditious consideration — Civil Revision Petition filed seeking direction to trial Court to dispose of interlocutory application filed for grant of temporary injunction in partition suit — Suit and injunction application filed in year 2021 remained pending without disposal for considerable period — Held, interlocutory applications, particularly those seeking temporary injunction, require prompt adjudication as delay defeats the very purpose of interim relief — High Court justified in exercising supervisory jurisdiction to direct time-bound disposal without entering into merits. (Paras 2–3)

 

Constitution of India — Article 227 — Supervisory jurisdiction — Partition suit — Interlocutory application under Order XXXIX Rules 1 & 2 CPC — Delay in disposal — Direction for expeditious consideration —

Civil Revision Petition filed seeking direction to trial Court to dispose of interlocutory application filed for grant of temporary injunction in partition suit — Suit and injunction application filed in year 2021 remained pending without disposal for considerable period — Held, interlocutory applications, particularly those seeking temporary injunction, require prompt adjudication as delay defeats the very purpose of interim relief — High Court justified in exercising supervisory jurisdiction to direct time-bound disposal without entering into merits.

(Paras 2–3)

---

Civil Procedure Code, 1908 — Order XXXIX Rules 1 & 2 — Temporary injunction — Nature and object —

Held, relief of temporary injunction is intended to preserve subject matter of suit and prevent irreparable injury during pendency of proceedings — Non-disposal of such application for long period renders remedy ineffective.

(Para 2 — context of relief sought)

---

Judicial delay — Interlocutory applications — Effect —

Held, prolonged pendency of interlocutory application, especially relating to alienation or alteration of property, may result in irreversible consequences and frustrate adjudication in suit — Courts are expected to dispose of such applications expeditiously.

(Paras 2–3)

---

Article 227 — Scope of interference —

Held, High Court can exercise supervisory jurisdiction to ensure expeditious disposal of pending proceedings where subordinate Court fails to act within reasonable time — Such direction does not amount to interference on merits.

(Para 3)

---

Directions —

Held, trial Court directed to dispose of interlocutory application within a period of six weeks from date of receipt of order.

(Para 3)

---

RATIO DECIDENDI

Undue delay in deciding an interlocutory application for temporary injunction defeats the purpose of interim relief, and in such circumstances the High Court can, in exercise of its supervisory jurisdiction under Article 227, direct the trial Court to dispose of the application within a fixed time without entering into merits.

Order I Rule 10 — Impleadment of parties — Necessary and proper party — Test — Held, a party can be impleaded only if he is a necessary or proper party to the suit — A necessary party is one without whom no effective decree can be passed, and a proper party is one whose presence is required for complete and effective adjudication — Where no relief is claimed against proposed party and no cause of action is pleaded, such party cannot be impleaded. (Paras 6–7)

 

Constitution of India — Article 227 — Supervisory jurisdiction — Interference with order refusing impleadment — Scope —

Civil Revision Petition filed challenging order of trial Court dismissing application for impleadment of proposed defendant in suit for cancellation of gift deed and permanent injunction — Trial Court held that proposed party was neither necessary nor proper party — Held, order does not suffer from any illegality, perversity or jurisdictional error — Interference under Article 227 not warranted.

(Paras 5, 8–9)

---

Civil Procedure Code, 1908 — Order I Rule 10 — Impleadment of parties — Necessary and proper party — Test —

Held, a party can be impleaded only if he is a necessary or proper party to the suit — A necessary party is one without whom no effective decree can be passed, and a proper party is one whose presence is required for complete and effective adjudication — Where no relief is claimed against proposed party and no cause of action is pleaded, such party cannot be impleaded.

(Paras 6–7)

---

Suit for cancellation of gift deed — Parties — Scope —

Held, in a suit for cancellation of a gift deed, only parties to the document or persons claiming under them are necessary parties — A third person not connected with execution or benefit of the document is neither necessary nor proper party.

(Para 6)

---

Suit for injunction — Necessary parties —

Held, in a suit for injunction, only those persons against whom interference is alleged and against whom cause of action is disclosed are necessary parties — Absence of pleadings alleging interference by proposed party disentitles impleadment.

(Para 7)

---

Pleadings — Absence of cause of action — Effect on impleadment —

Held, where plaint does not disclose any cause of action against proposed defendant and no amendment is sought to introduce such plea, impleadment application is liable to be rejected.

(Para 7)

---

Directions / Result —

Held, Civil Revision Petition dismissed — Order refusing impleadment confirmed.

(Para 9)

---

RATIO DECIDENDI

Impleadment of a party under Order I Rule 10 CPC is permissible only when such party is necessary or proper to the adjudication of the dispute, and where no relief is claimed, no cause of action is pleaded, and the proposed party has no connection with the subject matter of the suit, refusal to implead does not warrant interference under Article 227.

Partition suit — Preliminary decree — Delay in final decree proceedings — Application for appointment of Advocate Commissioner — Direction for expeditious disposal — Civil Revision Petition filed seeking direction to trial Court to dispose of application filed for passing final decree in partition suit — Preliminary decree passed in year 2017 and application under Order XX Rule 18 CPC for division of properties by metes and bounds remained pending for several years without effective progress — Held, once preliminary decree is passed, it is incumbent upon trial Court to proceed with final decree proceedings without undue delay — Prolonged pendency defeats rights of parties and purpose of decree — High Court justified in issuing direction for time-bound disposal. (Paras 4–5)

Constitution of India — Article 227 — Supervisory jurisdiction — Partition suit — Preliminary decree — Delay in final decree proceedings — Application for appointment of Advocate Commissioner — Direction for expeditious disposal —

Civil Revision Petition filed seeking direction to trial Court to dispose of application filed for passing final decree in partition suit — Preliminary decree passed in year 2017 and application under Order XX Rule 18 CPC for division of properties by metes and bounds remained pending for several years without effective progress — Held, once preliminary decree is passed, it is incumbent upon trial Court to proceed with final decree proceedings without undue delay — Prolonged pendency defeats rights of parties and purpose of decree — High Court justified in issuing direction for time-bound disposal.

(Paras 4–5)

---

Civil Procedure Code, 1908 — Order XX Rule 18 — Partition — Final decree proceedings — Duty of Court —

Held, after passing preliminary decree in partition suit, Court is required to take necessary steps for division of property by metes and bounds and pass final decree — Failure to proceed with such steps for long period amounts to procedural lapse warranting supervisory intervention.

(Para 5)

---

Judicial delay — Pre-2017 matters — High Court circular — Binding effect —

Held, as per High Court circular directing priority disposal of pre-2017 cases, trial Courts are under obligation to take up such matters on priority and report progress — Non-compliance with such administrative directions justifies intervention under Article 227.

(Para 5)

---

Partition proceedings — Appointment of Advocate Commissioner —

Held, where application for appointment of Advocate Commissioner is filed for effecting division of property in terms of preliminary decree, Court must act promptly to ensure completion of final decree proceedings.

(Para 4–5)

---

Directions —

Held, trial Court directed to dispose of application for final decree within fixed time frame, preferably within three months where steps are completed, and otherwise within six months after following due procedure.

(Para 5)

---

RATIO DECIDENDI

After passing a preliminary decree in a partition suit, the trial Court is under a duty to promptly proceed with final decree proceedings, and prolonged delay in adjudicating applications for division of property by metes and bounds warrants supervisory intervention under Article 227 to ensure time-bound disposal in accordance with law and administrative directions.

Arbitration and Conciliation Act, 1996 — Sections 34 & 36 — Arbitral award — Execution — Stay application pending — Effect — Civil Revision Petition filed challenging order of executing court proceeding with execution of arbitral award despite pendency of application seeking stay of award under Section 34 read with Section 36(2) — Held, in terms of Section 36(2), an arbitral award is executable as a decree unless stayed by a competent court — However, where an application seeking stay of the award is filed and kept pending for considerable time, the same must be decided expeditiously to avoid prejudice and to ensure that proceedings under Section 34 are not rendered infructuous. (Para 8)

 

Arbitration and Conciliation Act, 1996 — Sections 34 & 36 — Arbitral award — Execution — Stay application pending — Effect —

Civil Revision Petition filed challenging order of executing court proceeding with execution of arbitral award despite pendency of application seeking stay of award under Section 34 read with Section 36(2) — Held, in terms of Section 36(2), an arbitral award is executable as a decree unless stayed by a competent court — However, where an application seeking stay of the award is filed and kept pending for considerable time, the same must be decided expeditiously to avoid prejudice and to ensure that proceedings under Section 34 are not rendered infructuous.

(Para 8)

---

Execution proceedings — Arbitral award — Pendency of stay application — Balancing of rights —

Held, continuation of execution proceedings in absence of stay is legally permissible, but when stay application is pending without adjudication, Court must balance equities between parties by directing expeditious disposal of stay application and regulating execution proceedings appropriately.

(Paras 6, 8–10)

---

Delay in disposal — Stay application — Effect —

Held, non-disposal of stay application filed along with Section 34 petition for long period defeats purpose of challenge to award and may cause irreversible consequences — Courts are required to decide such applications at earliest.

(Paras 6, 8)

---

Interim protection — Conditional stay — Execution proceedings —

Held, pending disposal of stay application, execution proceedings can be stayed subject to conditions to safeguard interests of decree-holder — In present case, stay of execution granted subject to deposit of one-third of decretal amount.

(Para 10)

---

Civil Procedure Code, 1908 — Section 115 — Revisional jurisdiction — Scope —

Held, revisional jurisdiction can be exercised to correct procedural imbalance where subordinate court proceeds with execution without consideration of pending stay application, thereby affecting fairness of proceedings.

(Paras 8–10)

---

Directions —

Held, court dealing with Section 34 petition directed to decide stay application within four weeks — Execution proceedings stayed till such decision, subject to deposit condition.

(Paras 9–10)

---

RATIO DECIDENDI

An arbitral award is executable in the absence of a stay under Section 36(2), but where an application for stay is pending, the court must ensure its expeditious disposal and may regulate execution proceedings by granting conditional stay so as to balance the rights of both parties and prevent the challenge under Section 34 from being rendered infructuous.