ADVOCATEMMMOHAN: BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 – S. 482 ...

ADVOCATEMMMOHAN: BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 – S. 482 ...: advocatemmmohan AP HIGH COURT HELD THAT BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 – S. 482 – Anticipatory bail – Allegation of rape against p...

Police harassment – Summoning woman to police station without notice – Matrimonial dispute – Scope of judicial protection – Duty to follow due process – Cooperation with investigation – Liberty to approach Magistrate.

 

CONSTITUTION OF INDIA – Arts. 14, 19, 21 & 226 – Police harassment – Summoning woman to police station without notice – Matrimonial dispute – Scope of judicial protection – Duty to follow due process – Cooperation with investigation – Liberty to approach Magistrate.

Petitioner/wife alleged that after registration of Crime No.132/2026 under Section 85 BNS against her husband and in-laws arising out of matrimonial dispute, respondent police repeatedly summoned her to police station without issuance of notice and coerced her to withdraw criminal case – Allegation further that police authorities threatened false implication and unlawfully interfered with petitioner’s personal liberty under influence exerted by husband – Writ petition filed seeking protection against repeated oral summons and police harassment.

Held : Personal liberty guaranteed under Articles 14, 19 and 21 of Constitution cannot be interfered with except in accordance with procedure established by law. Police authorities, while conducting investigation, are obligated to strictly adhere to due process and cannot compel attendance of persons through informal or coercive methods inconsistent with statutory safeguards.

State, on instructions, submitted that Crime No.87 of 2026 had been registered at Mangalagiri Town Police Station and petitioner was contacted only for purpose of securing appearance of accused persons during investigation. It was further stated that petitioner failed to cooperate with investigation and did not respond to repeated phone calls made by Head Constable.

Recording said submission, High Court held that petitioner shall cooperate with investigation. Simultaneously, respondent police authorities were directed to scrupulously follow due process of law while securing presence of petitioner and to obtain permission from competent authority wherever required. Liberty was reserved to petitioner to approach jurisdictional Magistrate for appropriate relief.

Exercise of investigative powers must remain within constitutional limitations and police authorities are bound to ensure that manner of securing presence of persons does not transgress safeguards relating to dignity and personal liberty.

(Paras 2 to 5)

HELD

Police authorities cannot interfere with personal liberty of individual except by following procedure established by law and statutory safeguards governing investigation. (Paras 2 and 5)

Where investigation is pending in registered crime, person concerned is under obligation to cooperate with investigating agency. (Paras 4 and 5)

While securing presence of petitioner during investigation, police authorities are duty-bound to scrupulously adhere to due process of law and obtain necessary permission from competent authority wherever required. (Para 5)

Liberty can be granted to aggrieved person to approach jurisdictional Magistrate for appropriate protective relief in accordance with law. (Para 5)

RESULT

Writ Petition disposed of directing petitioner to cooperate with investigation and directing respondent police to follow due process of law while securing petitioner’s presence. Liberty granted to petitioner to approach competent Magistrate for appropriate relief.

 APHC010203032026

ADVOCATEMMMOHAN: Police interference in civil disputes – Personal l...

ADVOCATEMMMOHAN: Police interference in civil disputes – Personal l...: advocatemmmohan CONSTITUTION OF INDIA – Art. 226 – Police interference in civil disputes – Personal liberty – Oral enquiry without registrat...

CONSTITUTION OF INDIA – Art. 226 – Police interference in civil disputes – Personal liberty – Oral enquiry without registration of FIR – Public Grievance Redressal System (PGRS) complaint – Scope of police enquiry – Judicial protection against harassment – Due process of law.

Petitioner alleged that respondent police repeatedly called him to police station from March, 2026 at instance of third respondent in connection with business dispute relating to gold transactions, despite absence of any FIR or formal complaint – Case of petitioner that disputes regarding bullion transactions had already been amicably settled through mediation of Bullion Merchant Association and that third respondent was attempting to exert pressure in purely civil dispute – Writ petition filed seeking direction restraining police from summoning petitioner without valid complaint or lawful basis.

Held : Where dispute between parties essentially arose out of commercial/business transactions and no criminal case or FIR was shown to be pending against petitioner, repeated interference by police authorities without following due process would amount to unwarranted intrusion upon personal liberty.

On instructions, police authorities clarified before Court that petitioner was only sought to be contacted in relation to oral enquiry arising out of Public Grievance Redressal System (PGRS) petition and that petitioner was not presently required in connection with any criminal case. Recording said submission, High Court held that respondent authorities shall not interfere with petitioner’s daily life and personal liberty except in accordance with due process of law.

Exercise of police powers in matters bearing predominantly civil complexion must remain confined within statutory limits and cannot be employed as instrument of coercion in private disputes.

(Paras 2 to 5)

HELD

Where no FIR or criminal proceedings are pending, police authorities cannot unnecessarily interfere with personal liberty of individual except by following procedure established by law. (Paras 4 and 5)

Business and financial disputes of civil nature cannot ordinarily be converted into instruments for repeated police intervention in absence of cognizable offence. (Paras 2 and 5)

Statement of police authorities before Court that petitioner was not required in any case and was contacted only in connection with PGRS enquiry recorded and acted upon by Court while granting protective direction. (Paras 4 and 5)

RESULT

Writ Petition disposed of directing respondent authorities not to interfere with petitioner’s daily life and personal liberty except by following due process of law. Pending miscellaneous applications closed.

MAHARASHTRA PROTECTION OF INTEREST OF DEPOSITORS (IN FINANCIAL ESTABLISHMENTS) ACT, 1999 – Ss. 2(c), 2(d) & 3 – “Deposit” – “Financial Establishment” – Scope and ambit – Loan transaction – Whether excluded from concept of deposit – Fraudulent default – Maintainability of proceedings under MPID Act – Distinction between civil dispute and statutory remedy under MPID Act – Failure of proceedings under IPC – Effect.

 APEX COURT HELD THAT 

MAHARASHTRA PROTECTION OF INTEREST OF DEPOSITORS (IN FINANCIAL ESTABLISHMENTS) ACT, 1999 – Ss. 2(c), 2(d) & 3 – “Deposit” – “Financial Establishment” – Scope and ambit – Loan transaction – Whether excluded from concept of deposit – Fraudulent default – Maintainability of proceedings under MPID Act – Distinction between civil dispute and statutory remedy under MPID Act – Failure of proceedings under IPC – Effect.

Appellants advanced aggregate amount of Rs.2.51 crores to respondents for business purpose on assurance of repayment with interest at 24% per annum payable quarterly – Respondents admitted receipt of amounts but failed to repay principal and interest – Appellants initiated civil proceedings, cheque dishonour proceedings and criminal proceedings under IPC which failed on ground that dispute was civil in nature – Thereafter appellants invoked provisions of Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 seeking action under Section 3 – High Court dismissed proceedings holding that transaction was merely “loan transaction”, respondents were not “financial establishments” and no cognizable offence under MPID Act was made out – Sustainability.

Held : Definition of “deposit” under Section 2(c) MPID Act is of widest amplitude and includes any receipt of money by any financial establishment to be returned after specified period with or without benefit in form of interest, bonus or profit. Legislature deliberately employed expansive expressions such as “any receipt of money”, “any financial establishment” and “in any other form” to cast broad protective net in favour of depositors. Definition is inclusive and not restrictive in nature.

Essential ingredients of “deposit” are (i) receipt of money by financial establishment, (ii) obligation to return such money after specified period or otherwise, and (iii) return with or without interest or other benefit. All these ingredients stood satisfied in present case since respondents admittedly received amounts from appellants with assurance of repayment together with quarterly interest.

Merely describing transaction as “loan” does not exclude it from ambit of “deposit” under Section 2(c). Nomenclature of transaction is irrelevant. Court must examine intrinsic attributes and substance of transaction and not label assigned to it. Even a loan transaction would amount to “deposit” if it satisfies statutory ingredients under MPID Act.

Definition of “financial establishment” under Section 2(d) is equally broad and includes “any person” accepting deposits under any arrangement or in any other manner. Private individuals receiving deposits and defaulting in repayment are also covered within expression “financial establishment”.

Failure of criminal proceedings under IPC or finding that dispute is civil in nature does not bar invocation of remedies under MPID Act. Proceedings under IPC and action under MPID Act operate in distinct statutory spheres with separate ingredients and objectives. Complaint under Section 3 MPID Act constitutes independent statutory remedy.

State of Maharashtra v. 63 Moons Technologies Ltd., relied on.

(Paras 5 to 6.8)

HELD

Definition of “deposit” under Section 2(c) MPID Act is intentionally broad and inclusive, comprehending any receipt of money to be returned after specified period with or without interest or other benefit. (Paras 5.2 to 5.4.5)

To constitute “deposit”, three elements are necessary: receipt of money by financial establishment, obligation to return money after specified period, and return with or without interest or benefit. (Paras 6 and 6.1)

Use of expression “loan transaction” is not determinative. Substance and attributes of transaction prevail over nomenclature and even loan transactions may fall within ambit of “deposit” under MPID Act. (Para 6.3)

Expression “financial establishment” includes any person accepting deposits in any manner and is not confined to organised financial institutions or public schemes alone. (Paras 5.2.2 to 6.2)

Failure to establish offences under IPC does not create embargo against proceedings under MPID Act since both remedies operate in distinct statutory domains. (Paras 6.4 to 6.7)

RESULT

Appeal allowed. Judgment of High Court set aside. Appellants held entitled to invoke Section 3 and pursue remedies under Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 against respondents.

ARBITRATION AND CONCILIATION ACT, 1996 – S. 7(5) – Arbitration agreement by incorporation – Reference to earlier agreement – Distinction between “mere reference” and “incorporation by reference” – Development Agreement containing arbitration clause – Permanent Alternate Accommodation Agreements subsequently executed – Clause providing that all terms and conditions of earlier Development Agreement shall form part of later agreements and all clauses shall be binding – Whether arbitration clause incorporated – Scope. Developer entered into Development Agreement with Co-operative Housing Society containing arbitration clause under Clause 36 – Subsequently entered into Permanent Alternate Accommodation Agreements with individual society members – Later agreements contained Clause 14 providing that all terms and conditions of Development Agreement shall be construed to form part of said agreements and all clauses thereof shall be binding on parties – Members instituted proceedings before Consumer Commission – Developer invoked arbitration clause and sought appointment of arbitrator under Section 11 of Arbitration Act – High Court dismissed applications holding that arbitration clause in Development Agreement was not specifically incorporated into later agreements and that mere reference to earlier agreement was insufficient under Section 7(5) – Sustainability.

 

APEX COURT HELD THAT 

ARBITRATION AND CONCILIATION ACT, 1996 – S. 7(5) – Arbitration agreement by incorporation – Reference to earlier agreement – Distinction between “mere reference” and “incorporation by reference” – Development Agreement containing arbitration clause – Permanent Alternate Accommodation Agreements subsequently executed – Clause providing that all terms and conditions of earlier Development Agreement shall form part of later agreements and all clauses shall be binding – Whether arbitration clause incorporated – Scope.

Developer entered into Development Agreement with Co-operative Housing Society containing arbitration clause under Clause 36 – Subsequently entered into Permanent Alternate Accommodation Agreements with individual society members – Later agreements contained Clause 14 providing that all terms and conditions of Development Agreement shall be construed to form part of said agreements and all clauses thereof shall be binding on parties – Members instituted proceedings before Consumer Commission – Developer invoked arbitration clause and sought appointment of arbitrator under Section 11 of Arbitration Act – High Court dismissed applications holding that arbitration clause in Development Agreement was not specifically incorporated into later agreements and that mere reference to earlier agreement was insufficient under Section 7(5) – Sustainability.

Held : Section 7(5) of Arbitration and Conciliation Act recognises arbitration agreement by incorporation where contract in writing refers to another document containing arbitration clause and such reference demonstrates intention to make arbitration clause part of contract. Distinction exists between “mere reference” to another document and “incorporation by reference”. Where parties merely refer to another document for limited purpose, arbitration clause therein does not automatically become part of later contract. However, where later agreement expressly stipulates that all terms and conditions of earlier agreement shall form part of later agreement and all clauses thereof shall bind parties, intention to bodily import entire earlier agreement, including arbitration clause, stands unequivocally established.

Clause 14 of Permanent Alternate Accommodation Agreements clearly manifested intention of parties to incorporate Development Agreement “body and soul” into later agreements. This was not limited or contextual reference but complete assimilation of earlier agreement into subsequent contracts. Consequently, arbitration clause contained in Clause 36 of Development Agreement stood validly incorporated into later agreements by operation of Section 7(5).

High Court erred in holding that specific reiteration of arbitration clause in subsequent agreements was necessary. Once parties consciously agreed that all clauses of earlier agreement would bind them, arbitration clause automatically became enforceable against society members who were parties to later agreements.

M.R. Engineers and Contractors Pvt. Ltd. v. Som Datt Builders Ltd. and NBCC (India) Ltd. v. Zillion Infraprojects Pvt. Ltd., followed.

(Paras 8 to 13)

HELD

Section 7(5) contemplates incorporation of arbitration clause from one document into another where written contract clearly demonstrates intention to adopt terms of earlier document as part of later agreement. (Paras 8 and 9)

Distinction must be maintained between mere reference to another document and incorporation by reference. In case of incorporation, terms and conditions of referred document stand bodily lifted into later contract including arbitration clause, unless inconsistent. (Para 9)

Where later agreements expressly provided that all terms and conditions of Development Agreement shall form part of subsequent agreements and all clauses thereof shall bind parties, arbitration clause in Development Agreement stood incorporated into subsequent agreements. (Paras 11 and 12)

High Court committed error in treating Clause 14 as mere general reference and in holding that separate arbitration clause was necessary in Permanent Alternate Accommodation Agreements. (Para 13)

RESULT

Appeals allowed. Impugned order of High Court set aside. Sole Arbitrator appointed under Section 11 of Arbitration and Conciliation Act, 1996 to adjudicate disputes between parties.