Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2, 3, 4 – Ex-parte interim injunction – Remedy for defendant – Maintainability of appeal -- Since the interim injunction granted by the learned trial court is ex-parte, the defendant-appellant has a remedy to file application for vacating / recalling of ex-parte injunction order under Order 39 Rule 4 C.P.C – Appeal on behalf of defendant-appellant not maintainable and is liable to be dismissed.

(Para 11, 12)

A. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 20 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Family Courts Act, 1984 (66 of 1984), Section 7 -- Maintenance -- Family court has jurisdiction for trying cases both under Section 125 Cr.P.C. as well as under Section 20 of the Act of 1956.

(Para 50)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 20 – Family Courts Act, 1984 (66 of 1984), Section 7 -- Maintenance to major daughter u/s 125 Cr.P.c. granted by Family court – Challenge to – Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property -- Section 125 Cr.P.C. limits the claim of maintenance of a child until he or she attains majority -- Held, since the order has been passed by the family court which has jurisdiction to entertain the application u/s 125 Cr.P.C. as well as application under Sub-clause (3) of Section 20 of Act of 1956, no purpose will be served in interfering with the revision and relegating the daughter to move a fresh application before the same court under different provision of law i.e. Section 20(3) of Act of 1956 -- No interference is required with the order impugned.

(Para 36, 51-53)

Uttarakhand Annual Transfer for Public Servants Act, 2017 (Uttarakhand Act No. 1 of 2018), Section 18(4), 22(4) – Transfer of employee on administrative ground -- Adverse material has not been confronted to petitioner/ employee – Writ petitions disposed of by permitting petitioners to make representation to the Secretary, who shall look into the matter and take decision as per law within three weeks thereafter – Status quo, qua, posting of petitioners ordered to be maintained till then.

(Para 5-7)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Cheque bounce complaint – Examination of Handwriting expert – Application for -- Holder in due course -- Burdon of proof -- A burden lies heavy on the person issuing the cheque particularly the accused who does not dispute the authenticity of the signatures to furnish a justifiable explanation as to how such cheque came into the hands of the complainant -- Mere fact that body writing on the cheque in question has not been made by the accused would not offer any kind of defence to the accused – Trial court declined application --  No infirmity in the impugned order,  and the same is upheld.

(Para 1, 11, 12)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint – Cause of action -- At the time of considering the application under Order 7 Rule 11 CPC, only the averments of plaint are required to be considered, and no other material -- Averment made by the defendant in the written statement cannot be considered -- Cause of action to file the suit involves evidence, as the issue is a mixed question of fact and law – Trial Court dismissed the application -- No ground warranting any intervention.

(Para 9-11)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Constitution of India, Article 21 -- Bail – Right of -- “Bail is the Rule and Jail is an Exception” – Objective behind detention of a person is to ensure easy availability of an accused for trial, without any inconvenience, however, in case the presence of an accused can be secured otherwise, then detention is not compulsory -- Right to a speedy trial is one of the rights of a detained person -- Courts shall also take into consideration the fundamental precept of criminal jurisprudence, “the presumption of innocence”, besides the gravity of offence(s) involved.

(Para 13)

B. Indian Penal Code, 1860 (45 of 1860), Sections 148, 149, 307, 160, 323, 325, 201 – Arms Act, 1959 (54 of 1959), Sections 25, 27, 54, 59 --  Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Attempt to murder – Regular bail -- Though the petitioner was named in the FIR but no specific role attributed to him -- Weapon recovered from the petitioner is yet to be co-related with the injury suffered by the injured before the learned trial court -- Incarceration of about one year and the trial is yet to begin as no charges have been framed -- 27 prosecution witnesses cited in challan -- Trial would take a long time -- Victim is now hale and hearty -- Bail allowed.

(Para 17, 18)

Constitution of India, Article 226 -- Pension for her own service – Special family pension – Right of -- Clubbing of -- Benefit of special family cannot be rejected on the ground that she is getting pension on account of her retirement – It cannot be clubbed with special family pension to which she was entitled on account of death of her husband in a terrorist attack -- Respondent directed to release special family pension.

(Para 11)

Hindu Succession Act, 1956 (30 of 1956), Section 14 – Limited estate of lady – Property of female Hindu to be her absolute property -- Defendant no.1 was married in the year 1959-60, much after coming into force the Hindu Succession Act, 1956, on 17.06.1956 -- As such, her limited estate enlarges into absolute estate and she becomes full owner on the date of coming into force the Hindu Succession Act.

(Para 41)

A. National Investigation Agency Act, 2008 (34 of 2008), Section 22 – Court of Session -- Special Court – Power of -- Court of Session exercising jurisdiction of the Special Court u/s 22 Sub-section (3) of the NIA Act, can exercise all the powers that have been conferred on the Special Court under Chapter IV of the NIA Act.

(Part 31)

B. National Investigation Agency Act, 2008 (34 of 2008), Section 21, 22 – Unlawful Activities (Prevention) Act, 1967 (37 of 1967), Section 15, 16 – UAPA -- Rejection of bail by Session Court/ Special Court -- Orders passed by the Court of Session u/s 22(3) shall be appealable u/s 21 of the NIA Act -- An appeal would lie before the Division Bench of High Court.

(Para 3, 31, 32)

Uttarakhand Annual Transfer for Public Servants Act, 2017 (Uttarakhand Act No. 1 of 2018), Section 18(4), 22(4) – Transfer of employee on administrative grounds -- Petitioner never confronted with the complaint – Petitioners to move a representation to the Secretary -- Till the representation is decided, the impugned transfer order stayed.

(Para 3-7)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievably breaking down of marriage – Ground of -- Boggy of irretrievably breaking down of marriage cannot be used to the advantage of a party who is solely responsible for tearing down the marital relationship.

(Para 6)

Indian Penal Code, 1860 (45 of 1860), Section 420, 120B – Information Technology Act, 2000 (21 of 2000), Section 66(D) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Cheating – Regular bail -- Complainant had been cheated of an amount of Rs.3 lacs -- Amount of Rs.1,50,000/- received in the account of the petitioner – He is a first time offender, in custody since 15.12.2023 but only 02 of the 09 prosecution witnesses have been examined so far -- Trial of the case is not likely to be concluded anytime soon -- Bail allowed.

(Para 5, 8, 9)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 163A, 166 – Compensation in motor vehicle accident case – Rash and negligent driving – Proof of – Requirement of -- In the eventuality of the persons knocking the door of the Court, by way of filing of the petition u/s 166 of the Act, it is incumbent upon the claimants to establish, rashness and negligence, on the part of driver of the offending vehicle -- Proof of imputation of rashness and negligence, on the part of driver of offending vehicle, is a sine quo non, for sustaining the plea for grant of compensation, while assessing the loss of dependency etc.

(Para 14)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Rash and negligent driving – Proof of – FIR against the unknown driver – Appellants-claimants, ought to have examined the Investigating Officer, who recorded the statements of witnesses and nominated respondent No.1, as accused in a criminal case – FIR and report u/s 173 Cr.P.C. simply tendered into evidence -- It is required on the part of the appellants-claimants to lead evidence of its own, with regard to the factum of accident and to establish the rashness and negligence, on the part of the offending vehicle -- No such, evidence has been led -- No sustenance, as such, can be drawn from the contents of the FIR and report under Section 173 Cr.P.C -- Claim petition dismissed.

(Para 18-21)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 50 – NDPS -- Recovery from Bag – Compliance of Section 50 of NDPS Act – Requirement of -- If the recovery was not from the person and whereas from a bag carried by him, the procedure formalities prescribed u/s 50 of the NDPS Act was not required to be complied with.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Fraud – Pleading – Proof of -- Fraud when pleaded has to be pleaded with all the details and has to be proved beyond guilt -- Mere bald assertion made by the plaintiffs that the sale deed was result of fraud shorn of any particulars will not help the cause of the plaintiffs -- In order to make out a case of fraud an express allegation of fraud and all material facts in support of such allegations need to be pleaded with high degree of precision.

(Para 10)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 67 -- Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 482 – NDPS – Anticipatory bail -- Confessional statement made by co-accused u/s 67 of NDPS Act is a very weak piece of evidence and cannot be a basis for the conviction of a person and has to be weighed very cautiously alongwith other piece of evidences -- No recovery effected from the possession of petitioner and has only been nominated as an accused subsequently on the disclosure statement of coaccused – Anticipatory bail allowed.

(Para 4, 5)

Constitution of India, Article 226 – Benefit of increments withdrawn from employee – Recovery of -- Petitioner is working as SS Master, which is a Class-III Post -- Benefit of the increments given in the year 2011, withdrawn in the year 2021 after a period of ten years – Held, no recovery can be made from the petitioner -- Any recovery done from the petitioner be refunded back to him within a period of eight weeks.

(Para 6-9)

A. Drugs and Cosmetics Act, 1940 (23 of 1940), Section 22, 27, 32 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 528 – FIR under Drugs Act -- Quashing of FIR -- Police did not have the powers to register an FIR or even conduct an investigation concerning offences u/s 27 of the 1940 Act -- FIR quashed.

(Para 10-15)

B. Indian Penal Code, 1860 (45 of 1860), Section 420 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 528 – Cheating -- Deliberate false representation with an intent to deceit, leading to the delivery of property, is an essential requirement to attract mischief of an offence u/s 420 of IPC -- Statements u/s 161 of the Cr.P.C. indicates that the petitioners offered injections at inflate prices without a valid licence aiming to deceive them -- However, there are no allegations of delivery or sale of actual property -- Thus, the essential elements to attract an offence under Section 420 of the IPC are missing – FIR quashed.

(Para 7, 15)

Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27, Section 100 – Application for additional evidence – Decision upon – Mandate of -- When an application under Order 41 Rule 27 CPC is moved during pendency of the appeal, it is incumbent on the part of the appellate Court to consider the same at the hearing of the appeal on merits so as to find out whether the documents for evidence proposed to be adduced have any relevance/ bearing on the issues involved or not -- Appellate Court directed to dispose of the application in accordance with law and then decide the appeal accordingly.

(Para 9, 10)

Constitution of India, Article 226 -- Dismissal from service – Acquittal in criminal case – Right to re-instatement -- In departmental proceedings petitioner found guilty of misappropriation of 80 Urea bags and embezzlement of Rs.29,656/- and award was passed against petitioner – No appeal/ revision filed against by petitioner – Held, acquittal from criminal proceedings does not automatically entitle an employee to reinstatement -- No ground to interfere with impugned dismissal order.

(Para 2-4)

A. Code of Civil Procedure, 1908 (V of 1908), Order 41, Order 42 Rule 1 – Appeal against appellate decree – Procedure -- Order XLI of the Code would apply to the appeals from the appellate decrees also, as contemplated in Rule-1, Order XLII of the said Code.

(Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 25, 27 – Appeal – Procedure -- Appellate Court cannot create a new case for the party, frame the issues and decide the issues without following the procedure contemplated under Order XLI of CPC.

(Para 12)

C. Code of Civil Procedure, 1908 (V of 1908), Order 41 – Appeal – Pleadings – It is well-settled principle of law that the Court cannot create any new case at the appellate stage for either of the parties, and the appellate court is supposed to decide the issues involved in the suit based on the pleadings of the parties.

(Para 14)

Indian Penal Code, 1860 (45 of 1860), Section 304B, 498A – Indian Evidence Act, 1872 (1 of 1872), Section 106, 113B -- Dowry death – Presumption – Onus of proof -- Deceased subjected to harassment and cruelty and death occurred within seven years of marriage sustaining 100% burn injuries inside her matrimonial home -- Onus was on the appellants/ accused to establish that it was not a dowry death -- Section 106 of the Evidence Act also put burden on the appellant no.1-husband who went to sleep with her in the same room, but escaped unscathed to explain as to how the death had occurred -- High Court arrived at the rightful conclusion reversing the judgment of acquittal passed by the trial Court and in convicting and sentencing the appellants.

(Para 7-10)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 216 -- Charge-sheet can be amended/altered at any stage before pronouncement of judgment -- Either prosecution or accused can file application for amendment of charge and in case Court comes to conclusion that charge required to be amended then Court can suo moto amend charge-sheet at any stage before judgment is pronounced.

(Para 6)

B. Indian Penal Code, 1860 (45 of 1860), Section 406, 420 – Criminal breach of trust – Cheating -- Charge-sheet u/s 420 of IPC cannot be framed simultaneously along with offence u/s 406 of IPC.

(Para 7)

Constitution of India, Article 21, 226 -- Medical reimbursement -- Unapproved hospital -- Partial reimbursement at PGI rates – Son of the petitioner is handicapped, also a mentally challenged person suffering from severe abdominal pain/ emergency condition, shifted to the unapproved hospital and on the date of admission, he was operated upon and was discharged on the next day – Held, it would be inhuman to say employee should keep on searching the list of approved hospitals and should first go to an approved hospital or a government hospital by ignoring the developing pain and at the risk of life -- It would be not only perverse but it will also be violative of Right to Life guaranteed under Article 21 of the Constitution of India – Writ petition allowed -- Respondents directed to pay full medical reimbursement.

(Para 8-10)

A. Industrial Disputes Act, 1947 (14 of 1947), Section 25FF – Transfer of Undertaking/ Company – Retrenchment compensation – Requirement of -- In case service of the workman is not interrupted by such transfer and terms and conditions of service applicable after such transfer are not in any way less favourable to the workman and new employer is legally liable to pay to the workman, in the event of his retrenchment compensation on the basis his service has been continuous, there shall be no requirement of notice u/s 25-FF of the Act nor any compensation in lieu of retrenchment  -- Three conditions specified in the proviso are to be satisfied -- Employees can claim compensation against the transfer, if the three conditions remain unsatisfied.

(Para 16-20)

B. Industrial Disputes Act, 1947 (14 of 1947), Section 2(k) – Industrial dispute – Transfer of Undertaking -- Petitioner-company while making its worker apprised of the factum with regard to proposed transfer/sale, specifically assured workmen of the petitioner-company that upon transfer they would become workmen/employees of HFL-transferee company with continuity of service on the conditions which in aggregate would be similar and in any case would not be less favourable to the existing conditions on which they are employed with the petitioner -- No dispute exist interse petitioner and its workers – Merely by submitting demand notice, respondent-union cannot be permitted to claim that “industrial dispute” exist interse petitioner and workmen.

(Para 25-28)

C. Industrial Disputes Act, 1947 (14 of 1947), Section 2(k), 10(1) -- Industrial dispute -- Demand Notice – Reference – Duty of Authority -- Appropriate Government, while considering/ making reference in terms of Section 10(1) of the Act, requires to apply its mind to ascertain whether industrial dispute, if any, exists or not – Firstly, authority needs to form an opinion that industrial dispute exist, only thereafter, it can proceed to make reference -- Authority cannot delve into the merits of the dispute, but before arriving at a conclusion that industrial dispute exist, if any, in the parties, authority needs to form an opinion on the basis of material adduced on record by the parties.

(Para 29-38)

Constitution of India, Article 226 – Writ – Delay and laches – Seniority list challenged after 13 years – Petitioner is seeking entitlement to agitate his belated claim on the strength of directions issued by the Court in other case -- Assertion of petitioner that he has a fresh cause of action for filing the instant petition after judgment cannot be sustained -- Unexplained delay and laches in invoking Article 226 jurisdiction has repeatedly been held to be a serious impediment for grant of relief -- Claim of the petitioner suffers from delay and laches and cannot be entertained – Writ dismissed.

(Para 11-23)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 20, 29 – NDPS -- Acquittal – Recovery of 1.25 kg of Charas in random check – As per Logbook entry, the police party was traveling during the relevant point of time towards a different destination -- This is also the evidence of DW-1 and 2 -- DW-1 is the SHO and DW-2 was the driver of the official vehicle -- All the witnesses belonged to the police department -- No independent witnesses to support the case of the prosecution -- Even the undisputed document marked and the statement given by the two police witnesses do not support the case of the prosecution -- Conviction set aside and the appellants acquitted.

(Para 5-9)

East Punjab Evacuee’s (Administration of Property) Act, 1947 (14 of 1947), Section 4, 6 -- East Punjab Displaced Persons Land Re-settlement Act, 1949 (Act 36 of 1949), Section 9 – Administration of Evacuee Property Act, 1950 (31 of 1950), Section 12 – Punjab Tenancy Act, 1887 (XVI of 1887), Section 5(1)(a) -- Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (8 of 1953), Section 2(f), 3 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Lease by Muslims before independence of India – Occupancy rights – Jurisdiction of civil court -- Plaintiffs were already in possession of the suit property much prior to the 1947 Act -- It is not case of State/ defendants-appellants that they ever took possession of the property in dispute by following the procedure as laid down in Section 6 of the Act -- As possession was never taken from the plaintiffs by following the procedure as laid down in Section 6 of the 1947 Act, therefore, said possession cannot be held to have become unauthorised.

-- Nothing on record to suggest that lease in favour of the plaintiffs was ever terminated by the custodian, in whom the property had been vested by virtue of Section 4 of the 1947 Act, by following the procedure laid down in Section 9 (2) of the 1949 Act -- It is not the case of the defendants-appellants that the present case fails under any of the categories mentioned at (a), (b) and (c) of Section 12 of the 1950 Act and as such, it is held that Section 12 of the Central Act of 1950 or Section 9 of the 1949 East Punjab Act did not affect the rights of the plaintiffs/ respondents as tenants on the suit land.

-- Plaintiffs being in possession of the suit land at least since 1914-15, without paying any rent to the owners and paying only the land revenue and cesses and the entry in the revenue record being “Bashra Malkan Bewajah Derina Kast”, therefore, there can be no doubt in holding that plaintiffs had acquired the occupancy rights.

-- Plaintiffs having acquired the occupancy rights in the suit land vested with the ownership rights in view of the provisions of Punjab Occupancy Tenants (Vesting of Proprietory Rights) Act, 1952.

-- It is only the Civil Court alone, which would have jurisdiction over the issue as to whether a person had acquired occupancy rights or not, and consequent to the acquiring of the occupancy rights, whether the ownership rights had vested in him or not.

(Para 13-27)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Limitation Act, 1963 (36 of 1963), Schedule - Article 54 -- Specific performance of contract – Limitation -- In the agreement dated 17.12.1989, it is specifically mentioned that the sale deed would be executed within one month from the date of the said agreement -- One month would expire on 16.01.1990, limitation period would be three years from the said date, which would expire on 16.01.1993 – Suit filed  in September, 1993 -- Suit liable to be dismissed on the ground of limitation alone – Advance of Rs. 80,000/- ordered to be returned to the plaintiffs along with 12% simple interest.

(Para 9-12)

Constitution of India, Article 14, 16 -- Recruitment and Promotion Rules, 1992, Rule 11 – Unequal promotion Quota – Principle of Intelligible defferentia -- Impugned Recruitment and Promotion Rules for the post of Deputy Director provide for 60% quota to the Principals promoted from the cadre of Headmasters and 40% to the Principals promoted from the cadre of Lecturers for being placed as Deputy Directors – No reasonable classification to the extent of providing unequal quota to the Principals promoted from the cadre of lecturers and Principals promoted from the cadre of Headmasters is in clear violative of Articles 14 and 16 of the Constitution -- Rule 11 as amended in 2005 quashed to that extent.

(Para 12, 17-20)

Constitution of India, Article 226 – Service matter -- Recovery of benefits already drawn – Permissibility of -- Ad-hoc appointment as Assistant Teacher (L.T Grade), on 20.09.1986 -- Services regularized on 07.08.1993 -- After calculating ad-hoc period Selection Grade was sanctioned on 20.09.1996 – By the impugned orders dated 08.12.2017 and 05.09.2019, respondent-State cancelled the payment of Selection Grade to the petitioner -- Writ petition disposed of, with the observations that the benefit, if any, granted to the petitioner shall not be recovered -- Amount of recovery made from the petitioner, if any, shall also be paid back to the petitioner.

(Para 2-8)

Code of Criminal Procedure, 1973 (2 of 1974), Section 82 -- Proclaimed offender – Quashing -- Proclamation u/s 82 Cr.P.C. was ordered to be issued for 04.11.2022 -- Proclamation warrant were fixed on 03.11.2022 at the house of the petitioner, public place and notice board of the Court -- On 04.11.2022, as one month’s time has not elapsed after the publication, the case was adjourned to 16.12.2022 awaiting the presence of the petitioner – Held, the trial Court could not extend the time by simply adjourning the case for awaiting the appearance of the petitioner and was mandatorily required to issue the proclamation against for publication thereof in accordance with the provisions of Section 82(2) Cr.P.C -- Apart from that, the proclamation was not read publicly in some conspicuous place in the town/ village in which the accused ordinarily resided and the proclamation was not duly published – Impugned order declaring petitioner as proclaimed offender set aside.

(Para 1, 6-8)

Service matter -- Family Pension – Right of wife – Deceased employee gave affidavit in favour of respondent no. 4/ brother’s wife for service benefits and family pension – Held, once the widow is claiming the family pension on the basis of the Rules, the Department cannot deny her benefit -- Family pension is to be admissible only to the claimants envisaged under the Rules, will not be governed by the affidavit issued by the employee concerned – Petitioner/ wife held entitled family pension and interest on the arrears @ 6% per annum.

(Para 5, 10, 15, 16)

Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9, Section 151 – Appointment of Local Commissioner – Suit for declaration -- No allegation in the plaint that defendants had encroached the suit land -- Suit itself was for declaration simplicitor that plaintiff had become owner of some portion of suit land by adverse possession & remaining portion of suit land by purchase -- It was for the plaintiff to prove his case by leading cogent evidence -- Plaintiff cannot be permitted to involve the Court in an exercise to hunt for evidence – Application dismissed.

(Para 1, 5)

Code of Civil Procedure, 1908 (V of 1908) -- Additional evidence in  Rebuttal -- The fact concerning which, additional evidence being sought to be led, was already pleaded in the plaint -- In fact, it was the foundational fact -- Plaintiffs were required to lead evidence in affirmative on the facts pleaded in the plaint -- They cannot be allowed to lead such evidence in rebuttal -- Application dismissed.

(Para 4, 5)

Code of Criminal Procedure, 1973 (2 of 1974), Section 82, 105 – Proclaimed person – Accused abroad -- Petitioner had left for England on 19.05.2019 and though the summons were issued vide order dated 19.04.2019, the same was not received back and thereafter, when the non-bailable warrants were issued against the petitioner vide order dated 06.06.2019, received back unserved with the report that she has gone to England -- A person cannot be said to “abscond” or “evade” the execution of warrant when he had gone to a distant place before the issue of the warrant – Impugned order was not passed in consonance with the mandate of Sections 82 & 105 of Cr.P.C. and is not sustainable in the eyes of law, set aside.

(Para 8-13)

Indian Penal Code, 1860 (45 of 1860), Section 306 – Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Abetment to suicide – Refusal to marry -- Anticipatory bail -- Neither there is any incident of provocation nor any instigation -- Mere refusal of the proposal for marriage does not attract the provisions of the offence u/s 306 IPC – Bail allowed.

(Para 4, 5)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Indian Penal Code, 1860 (45 of 1860), Section 376 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 -- POCSO – Rape -- Bail to juvenile in conflict with law/ CCL – Right of -- Penetrative sexual assault on minor prosecutrix --  Word “shall”, suggests that normally, prayer, if any, made for grant of bail deserves to be allowed -- No material worth credence was ever adduced on record by the prosecution to suggest that in the event of CCL being enlarged on bail, he may not only come in contact of hardened criminals but may again indulge in such activities – Principle of non-stigmatizing semantics is required to be followed -- Bail allowed with conditions.

(Para 8-18)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 22 – Code of Criminal Procedure, 1989 (XXIII of 1989), Section 437, 439 -- NDPS – Commercial quantity -- Regular bail – Inventory report not signed by accused -- A person who conducts search is supposed to sign the recovery memo -- Drug Inspector has conducted search, but the recovery memo not signed by him – Bail allowed.

(Para 2, 7, 8)

Uttarakhand Annual Transfer for Public Servants Act, 2017 (Uttarakhand Act No. 1 of 2018), Section 13(6) – Constitution of India, Article 226 -- Transfer of employee --  Petitioner is feeling difficulty in serving at Government ITI Dugadda, he wants to be transferred at a suitable place particularly in District Haridwar and made a representation -- Writ petition disposed of, respondent No.2 directed to take a decision on petitioner’s representation by a speaking and reasoned order, within a period of one week.

(Para 2-6)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 18, 18(b), 29 – Constitution of India, Article 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS – Commercial quantity – Regular bail –  Trial delayed due to the repeated and continuous non-appearance of the prosecution witnesses, the State cannot justifiably oppose the prayer of the petitioner for bail -- Petitioner in custody since 13.09.2022, there is no foreseeable conclusion to the trial in the near future -- Court deemed it appropriate to allow the petition by dispensing with the conditions of Section 37 of the NDPS Act -- Petitioner admitted to bail.

(Para 7-9)

Punjab Civil Services (Punishment and Appeal) Rules 1970, Rule 2.2 (b) -- Disciplinary proceedings after retirement – Permissibility of -- No disciplinary proceedings could have been initiated after 2 years of the retirement --  Petitioner retired from service on 31.03.2020 and the chargesheet being served upon him on 02.05.2022 relating to an incident related to the year 2014 – Held, respondent-State did not had jurisdiction to serve a chargesheet, the same is set aside.

(Para 2, 10)

Indian Penal Code, 1860 (45 of 1860), Section 304B, 34 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 378 -- Dowry death – Appeal against acquittal -- Parents-in-law -- They were residing separately and had no occasion to harass the deceased -- Difficult to believe the prosecution case that parent-in-paw used to harass the deceased on account of dowry soon before her death – Learned Trial Court had taken a reasonable view while holding that the complicity of the parents-in-law of the deceased was not established based on the evidence led before it – High Court will not interfere with the same even if an alternative view is possible – Appeal dismissed.

(Para 30-33)

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002), Section 13(2)(4), 14, 26D, 26E -- Secured Debt – Red entry/ Lien by Excise and Income Tax department – Right of – SARFAESI proceedings initiated – Petitioner-Bank is not only a secured creditor but has created the first charge over the property in question as far as back in the year, 2013 – Excise and Taxation Department got entered a report dated 09.07.2015 and Income Tax Department got entered report dated 05.02.2018 in revenue record -- Held, once the petitioner is a secured creditor and has moreover created the first charge over the property, then obviously, it has the first right to realise its dues – Writ petition allowed, respondents directed to remove the red entry qua the property in question.

(Para 5, 6, 11-13)

Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of minor child – Sisters of deceased wife -- Natural father – Right of -- Child, who lost her mother at tender age, cannot be deprived of the company of her father and natural brother -- At the relevant time, the appellant had no other option but to look upon the sisters of his deceased wife to nurture his infant child -- Merely because of the unfortunate circumstances faced by the appellant as a result of which, respondent Nos. 5 and 6 were given the temporary custody of the minor child and only because they  looked after her for few years, the same cannot be a ground to deny the custody of the minor child to the appellant, who is her only natural guardian -- Respondent Nos. 5 and 6 directed to handover the custody of the minor child forthwith – Meeting rights given for every Wednesday between 04:00 pm and 06:00 pm.

(Para 13-17)

Hindu Marriage Act, 1955 (25 of 1955), Section 9, 13 – Divorce – Decree of restitution of conjugal rights – Appellant did not agree to cohabitation –  Upon failure of cohabitation for a period of one year after grant of decree of restitution of conjugal rights, the respondent held entitled to dissolution of the marriage.

(Para 6)

Indian Penal Code, 1860 (45 of 1860), Section 375 Exception 2, 294, 376(2)(n), 377, 498A, 506 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Rape/ Unnatural offence – Husband and wife – Second marriage without divorce -- Quashing of FIR -- As per the amended definition of section 375 (2013), if offender and victim are husband and wife then consent is immaterial and no offence u/s 375 is made out and as such there is no punishment u/s 376 of IPC -- There is repugnancy in the situation when everything is repealed u/s 375 then how offence u/s 377 would be attracted if it is committed between husband and wife.

-- Marriage was solemnized between petitioner and complainant as per Adivasi customs and approval to second marriage for tribes and considered its legal sanctity, the marriage of the petitioner even though divorce from first wife did not take place, cannot be considered to be illegal act on the part of the petitioner as also respondent No.2 has admitted that she is the wife of the petitioner.

-- Petitioner is not punitive for the offence punishable u/s 376(2)(n) and Section 377 of IPC -- For constituting offence u/s 498-A IPC, there is no allegation of any demand of dowry -- For other offences i.e. Sections 294 and 506 of IPC, no date, place and time has been disclosed and as such the complaint is a malicious prosecution as there was inter se dispute between husband and wife.

Petition allowed, FIR quashed.

(Para 11-22)

A. Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 – Recovery suit -- Attachment of property before judgment -- Provision contained in Order 38 Rule 5 CPC is an extraordinary provision and a drastic one -- It is not the provision to be adopted as a matter of course --  Provision has to be invoked with utmost caution and circumspection -- It has to be invoked only when there is cogent material on record for the Court to believe possible mischief at the hands of defendant with an intent to defeat or to obstruct the execution of decree yet to passed.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 – Recovery suit -- Attachment of property before judgment – Substitution with another property -- Trial Court after being satisfied with the evaluation of the property allowed the substitution – Evaluation of which is sufficient to secure the interest of the plaintiff – No reason to interfere – Revision dismissed.

(Para 11, 12)

Indian Stamp Act, 1899 (2 of 1899), Section 33, 35 -- Suit for specific performance – Insufficient stamp on agreement – Penalty of 10 times – Trial court imposed 10 times penalty -- Imposition of penalty to the extent of ten times, is not mandatory and discretion lies with the authority -- Parties entered into agreement to sell, without having knowledge of the amendment carried out by the State of Punjab -- Petitioner-plaintiff shall be liable to pay the deficient stamp duty, along with equivalent amount of penalty, within a period of 30 days. Amit Kumar’s case 2022(3) Law Herald 2472 relied – Revision allowed.

(Para 1, 13-17)

Code of Criminal Procedure, 1973 (2 of 1974). Section 145, 146 – Issue of possession – Decree of civil court – Effect of -- Proceedings u/s 145/146 Cr.P.C. pertain to the factum of possession of a party and not the right to possess which is to be determined by the Civil Court -- Once the factum of possession and right to possess both have been adjudicated upon by the appropriate Civil Court, the question of initiation of proceedings under Sections 145/146 Cr.P.C. does not arise.

(Para 12, 13)