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Former Shiv Sena MP Anandrao Adsul’s Request To Quash ED Summons In A Money Laundering Case Was Denied By The Bombay High Court [READ ORDER]

The Bombay High Court has dismissed a plea filed by Shiv Sena leader and former Member of Parliament Anandrao Adsul seeking quashing of the Enforcement Directorate (ED) proceedings against him in a money laundering case.

By: Himkiran Kaur Sethi, The Law School, University of Jammu

Adsul can use the statutory remedy of anticipatory bail, according to Justice Nitin Jamdar and SV Kotwal, and there is no need to interfere with the proceedings under Section 482 of the Code of Criminal Procedure.

“As regards the protection from arrest is concerned, the petitioner has a remedy under the CrPC. In these circumstances, the writ petition is rejected,” the Court ordered.

The Court also stated that it will refrain from making any comment on the merits of the petition to avoid jeopardizing Adsul’s alternative remedies.

“Considering that the Petitioner has a statutory remedy under section 438 of CrPC and any observation by us on the merits of the matter against the petitioner will prejudice the petitioner in case the petitioner approaches the competent court for anticipatory bail; we refrain from elaborating the same in this order. However, it cannot be said that there is no material against the petitioner,” the Court said.

Adsul has filed a challenge to the ED’s investigation into the suspected 980 Crore fraud at the City Co-operative Bank.

Surprisingly, the Economic Offences Wing of Mumbai Police had launched a case for criminal breach of trust, defrauding, and criminal conspiracy under the Indian Penal Code based on Adsul’s allegation regarding suspected irregularities in the loan distribution by City Co-operative Bank.

Later, the ED issued three summonses to Adsul in connection with the case, requiring him to attend in person or through a representative, but Adsul did not reply to all three summonses.

Adsul filed a complaint with the High Court, alleging coercion.

Adsul requested the following reliefs:

  • Copies of the Enforcement Case Information Report (ECIR);
  • Quashing ECIRs;
  • Quashing summons;
  • Prohibiting ED from issuing future summons;
  • Refraining from adopting any coercive action based on the ECIR.

Adsul also sought a non-coercive temporary remedy, which was denied by the High Court on October 1, 2021.

Adsul’s lawyer, Abhinav Chandrachud, said that Adsul had submitted the complaint and that the only reason the ED had not taken action against him was that he was hospitalized and would be detained soon after he was released.

Chandrachud made three major contributions to the prayers.

  1. The ED procedures were started when Ravi Rana, the husband of Navneet Kaur, a BJP MP, filed a complaint. The Bombay High Court had revoked and confiscated Rana’s caste certificate because it was obtained via “systematic fraud” in response to petitions, including one by Adsul, which was subsequently stayed by the Supreme Court.
  2. The proceedings should be invalidated on the grounds of ED’s mala fide and malice.
  3. Adsul is provided a copy of the ECIR for him to pursue proper legal actions. The summons also lacked sufficient information as to why Adsul was summoned.

ED’s attorney, Additional Solicitor General Anil Singh, objected to the petition, claiming that there were alternative legislative remedies available and that the Court’s exceptional authority was not warranted.

He also displayed court papers comprising statements taken in support of the Enforcement Case Information Report (ECIR).

The Court rejected Adsul’s argument, noting that no officer purportedly acting on Rana’s orders had been identified in the petition. 

“Merely by hinting that the husband of Navneet Kaur Rana belongs to the ruling dispensation, the requirement of establishing malafides as a legal ground is not satisfied,” the Court said.

The court found no other reason to intervene and halt proceedings under the PMLA after reaching this determination.

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Res Judicata Shall Apply To Execution Proceedings As Well: SC On 50-Year-Old Civil Suit [READ JUDGMENT]

A civil suit relating to the execution of a money decree was dragged for 50 years, in 5 installments. The Court announced the case fit to be included in the law school syllabus for students to get equipped with various provisions of the Civil Procedure Code, 1908 related to the execution of a decree.

By: Himani Khadai

The first suit in the case of Dipali Biwas vs. Nirmalendu Mukherjee & ors (LL 2021 SC 538) was filed for recovery of money (Rs. 3,000/-) in 1971 by Ms. Rama Rani Devi against Sasadhar Biswas. The Court directed the defendant to pay the amount of Rs. 3,000 in 6 installments. 

However, the execution decree was not honored by the defendant, following which, the decree-holder filed an execution petition in 1975 for attachment of property (7450 sq. ft.) under ORDER XXI, Rule 54.  The sale proclamation was issued by the executing court on 16.07.1975, responding to which, the Judgment-Debtor (Sasadhar Biswas) filed an application assailing the sale proclamation issued by the executing court on the ground of material irregularity and fraud. But the same was dismissed on 03.09.1975.

Later, as a procedure of execution of a decree, an auction sale was held for the attached property (7450 sq. ft.) and a sum of Rs. 5500/- was offered as the highest bid. Furthermore, the money was deposited in the court.

1st Round of Litigation

The Judgment-Debtor filed an application in the year 1979, under ORDER XX1, Rule 90 with Section 152 of CPC, 1908 for setting the auction sale aside on the grounds of irregularities in the sale proclamation. All the petitions made by Judgment-Debtor were dismissed by the court.

Thus, the 1st round of litigation came to an end in 1992.

2nd Round of Litigation

The Judgment Debtor again filed a suit for a declaration that the auction sale was void. But this suit was also dismissed by the court on 02.12.1992.

3rd Round of Litigation

The Judgment-Debtor again filed a petition under ORDER XXI, Rule 29 for a stay of execution proceedings. However, the application of the judgment debtor was again dismissed for the third time.

On the other hand, a direction was given for the issue of a sale certificate to the auction purchaser in the terms of ORDER XXI, Rule 94. Following this, a sale certificate was issued on 08.02.1994 and duly registered. 

It was further challenged in the High court by the judgment-debtor. The High court eventually dismissed the revision petition by the order dated 05.09.2001. Therefore, the third round came to an end.

4th Round of Litigation

In the 4th round, the application was filed by the auction purchasers for delivery of possession of the land sold in execution of the decree which was allowed by the court on 15.03.2002.

Until then, the Judgment-debtor constructed a building on the same land sold in execution of the decree. The court directed the building to be demolished as it was constructed illegally. Such order of the court was challenged by the legal representatives of the Judgment debtor but the same was dismissed. 

It was further challenged before the High court and then before the Hon’ble Supreme Court (SLP). All subsequent petitions were further dismissed by the court on 10.01.2006.Thus, the fourth round of litigation came to a close.

5th Round of Litigation (Present)

The present petition was filed before the Executing Court under Section 47 of the Civil Procedure Code, 1908, on the ground that the mandate of ORDER XX1 of Rule 64 (such portion thereof as may see necessary to satisfy the decree, shall be sold) was not followed in the auction, and a jurisdictional error has crept in, which needs correction.

As the entire property sold cost more than the execution decree amount, so there was no need to include the entire property in the execution decree.

Such a petition was dismissed on 20.01.2007. Subsequently, a revision petition was also dismissed by the High court on 28.03.2008, on the grounds that this issue was never raised before, and cannot be allowed to raise now. 

In Dipali Biwas vs. Nirmalendu Mukherjee, the legal representatives of the Judgment debtor now appeared with an appeal before the Hon’ble Supreme Court against the order dated 28.03.2008. 

The Hon’ble Supreme Court gave a Judgment on 05.10.2021 expecting it to be the last round of litigation. The Supreme Court mentioned that “the Judgment debtor had enough opportunities to object to the inclusion of entire property when the order was passed under ORDER XXI, Rule 54, by taking advantage of amended clause (a) of the sub-rule (2) of rule 66 of ORDER XXI. Which talks about a part of the property that would be sufficient to satisfy the decree. But he failed to do that.”

Adding to this, the Hon’ble Supreme Court remarked that “the objection relating to ORDER XXI, Rule 64 was raised for the first time in the 5th round of litigation when they have exhausted almost all provisions available to judgment-debtor to stall execution.”

The Hon’ble Supreme Court called it “a case fit to be included in the syllabus of a law school as a study material for the students to get equipped with the various provisions of the code relating to execution.”

Hence,  the present appeal was dismissed by the Hon’ble Supreme Court. 

The Hon’ble Supreme Court struck down the issues raised by the appellant relating to the breach of ORDER XXI, Rule 64, mentioning that:

  1. The objections cannot be raised in installments. After failing to raise it in earlier 4 rounds of litigation, appellants cannot be permitted to raise it now.
  2. The present petition under Section 47 is barred by Res-Judicata (Section 11), as the first petition under the same Section 11 was filed by the original Judgment-debtor back on 02.09.1975.

Meanwhile, the court pointed out that before act 104 of 1976 came into force, Section 11 of the code was not applicable to execution proceedings. But under act 104 of 1976, Explanation VII was inserted under Section 11 of the code which included execution proceedings under the purview of section 11.

The Court also clarified that “under section 65, the property is deemed to be vested in the purchaser from the time when the property is sold. Not when the sale becomes absolute.”

The Court further added, “The sale becomes absolute under ORDER XXI, Rule 92(1) when the court grants certificate under Rule 94. After the application under rules 89, 90, or 91 is disallowed by the court.

The sale goes through these stages:

(i) Conduct of sale 

(ii) Sale becoming absolute (Rule 92 (1), ORDER XXI) 

(iii) Issue of sale certificate (Rule 94, ORDER XXI)

(iv) Delivery of Possession (Rule 95, ORDER XXI).

The appellant raised objection in the iv stage.” 

Therefore, the claim under ORDER 64 was rightly rejected by the High Court in the absence of merit.

News, Top Stories

The Requirements For Law And Order In Delhi Are Unique; An Experienced Police Officer Is Needed: HC On Rakesh Asthana’s Appointment As Police Commissioner [READ JUDGMENT]

The Delhi High Court has agreed with the Central Government’s position that the appointment of IPS officer Rakesh Asthana as the Delhi Police Commissioner is made strategically

By: Rashi Jain, SOA National Institute of Law

The Bench observed that “It ought to be kept in mind that Delhi, being the Capital of India, has a unique, special and specific requirement. It has witnessed several untoward incidences and extremely challenging law and order riots/crimes, which have an international implication, which the wisdom of the Central Government necessitated. The appointment of an experienced officer possessing diverse and multifarious experience of heading a large Para-Military Security Force apart from other factors,” observed the Division Bench of Chief Justice DN Patel and Justice Jyoti Singh while dismissing the plea. Against Asthana’s appointment as the DPC.”

The Bench further held that the Executive responsible for the National Capital’s law and order situation should have a reasonable discretion to choose an officer it deems more suited based on the officer’s career graph unless there is something terrible about the officer’s service career. It stated that Asthana is a career officer with approximately 37 years of experience in various positions who was found suitable by the Centre for an appointment as Delhi Police Commissioner on Inter-Cadre delegation from Gujarat Cadre to AGMUT Cadre by initially extending his service for one year beyond the date of his superannuation.

It observed “Learned counsels appearing for the Petitioner/Intervener have not been able to make out a case calling for interference in the decision of the Government or even remotely demonstrated that there is any blot in the service career of Respondent No.2, making him unsuitable for the post in question. Once this Court finds that the Central Government has the power, jurisdiction, and authority to grant relaxation of any of the provisions of the Guidelines issued on 28.06.2018 for Inter-Cadre deputation of All India Services officers and that the power has been exercised for valid and just reasons, we see no reason to interfere in the decision of granting Inter-Cadre deputation to Respondent No. 2.”

The Bench clarified that the Centre has the authority under Rule 3 of the Fundamental Rules to relax any Rule framed under the All-India Services Act, 1951.

Accordingly, any Regulation made thereunder if it is satisfied that the operation of such Rule/Regulation results in undue hardship in any particular case. In the instant matter, the Centre stated that most appropriate level officers in the AGMUT Cadre lacked the necessary experience for appointment as Delhi Police Commissioner.

It was added that “Keeping in mind the complexities and sensitivities in the Capital of the Country and the fact that no officer with appropriate seniority and the requisite experience was available in the AGMUT cadre, the relaxation provision was a call on, and extension of service was granted to Respondent No. 2.”

The Bench found that Rule 3 of Rules, 1960 certainly empowers the Central Government to relax the provisions of Rule 16(1) of Rules, 1958, to extend service to Respondent No.2. They also found merit in the reasons furnished by Respondent No. 1 for grant of relaxation or otherwise, based on its subjective satisfaction premised on objective considerations.

The Court also backed the Centre’s position that before Asthana’s appointment, the Central Government had recruited up to eight former Police Commissioners in Delhi using the exact mechanism since 2006. Those, however, have not been disputed in the past.

In this context, the High Court stated

“It is a settled law that where a contemporaneous and practical interpretation or practice has stood unchallenged for a considerable length of time, it would be a useful guide for proper construction/interpretation of the provisions of a Statute or Executive Instructions. Therefore, applying the principle of contemporanea expositio, a procedure has been followed by the Central Government since 2006. With the clear understanding as aforesaid and appointments of as many as 8 Commissioners of Police, Delhi have been made following the statutory regime under the Delhi Police Act, 1978. It is read with Transaction of Business of GNCTD Rules, 1993, which has withstood the test of time, without any demur/objection/challenge in any Court or Forum of law, the same gains weightage.”

Rakesh Asthana, Delhi Police Commissioner, is a 1984-batch Gujarat cadre IPS officer who assumed the position of Delhi Police Commissioner in July 2021. However, four days before his retirement, the Ministry of Home Affairs issued an order extending his employment initially for one year beyond the date of his superannuation on 31.07.2021. Asthana’s appointment had many obstacles on multiple grounds, including that it took place just four days before his retirement. 

This was in direct violation of the Hon’ble Supreme Court’s decision in Prakash Singh & Others v. Union of India, wherein it was held that the Union Public Service Commission (UPSC) should, to the extent possible, consider only officers with two years of service remaining for such appointments.

The Centre had argued, among other things, that the case’s final operative orders applied only to the State for the appointment of DGPs and not to the Union Territories.

News, Top Stories

Advocates Requiring a Firearm License for Safety Are Engaging in a Dangerous Practice That Is Not in the Best Interests of the Noble Profession: Allahabad HC [READ ORDER]

While dismissing the plea, the High Court observed that if there is a threat in the Advocate’s mind, the entire basis of the nobleness of the profession will fall

By Rashi Jian, SOA National Institute of Law

Recently, it has been observed that the general trend of an Advocate obtaining a handgun license without justification is deplorable and is not in the best interests of the noble profession of the Advocate.

The Bench of Justice Saurabh Shyam Shamshery stated that requiring an Advocate to obtain a handgun license for personal and professional safety would be extremely risky.

Briefly, the Court was considering the appeal of an Advocate, Ram Milan, against the judgment of the Weapon Licence Authorities as his application for a firearm license was refused by both the Licensing Authority and the Appellate Authority because he lacked the necessary grounds for issuance.

Essentially, the Advocate applied for a firearm license for a revolver under Section 13 of the Arms Act, 1959 r/w the Arms Rules, 2016 for his personal and professional safety because an attempt was made on his life and that some residents attempted to molest his female family members by breaking into his home.

He cited two FIRs and contended that a handgun license was required since he was compelled to travel for his job and for his personal and professional safety.

On the other hand, the state’s Standing Counsel contended that there was no evidence on file showing that the petitioner was a victim of a crime or that he had a legitimate need for a handgun license.

Additionally, he maintained that it is well established that in the absence of any justifiable ground, the subjective satisfaction of the Licensing Authority cannot be interfered with by the writ jurisdiction.

The Court noted that there was no documentary proof on record establishing that the petitioner was, in fact, an Advocate. Additionally, the Court was unaware of the current state of criminal cases.

Further, the Court noted that the subjective satisfaction of the Licensing Authority could not be interfered with by the Court under the writ jurisdiction if there is no foundation for such satisfaction or if the reason for satisfaction is based on suppositions and conjectures.

The Court stated that the Licensing Authority considered the reasons above based on available evidence in this case. It was determined that the petitioner’s case did not fall within the categories mentioned above and thereafter, denied the petitioner’s application for a handgun license.

Notably, while emphasizing that the profession of an advocate is a respectable one, the Court observed that the prevailing trend toward possessing a firearms license by an Advocate without a compelling explanation is inexcusable. Additionally, emphasizing that if such applications are permitted without any solid, a day will come when every Advocate will be required to carry an arm inside the Courthouse. 

The Court observed “In case there is a threat in the mind of Advocate, the entire basis of the nobleness of the profession would fall. Every Advocate has a weapon of his legal arguments with bullets of judgments passed by High Courts and Supreme Court in support of his submission, which is enough to provide safety to his professional and client and is sufficient to demand justice from the Courts. Normally they do not need a firearm for their professional safety.”

Before dismissing the plea, the Court clarified that the Advocate is not barred from applying for a firearm license and that their application is evaluated under the requirements of the Arms Act, 1959, read with the Arms Rules, 2016.

News, Top Stories

7 High Court Judges Transferred: Another Reshuffle In Higher Judiciary

The transfer of the second set of High Court Judges has taken place for the second time since the last week. The Ministry and Collegium hold a firm belief to take this significant step

By: Disha Rani, Mody University, Sikar, Rajasthan 

Union Law and Justice Minister, Shri Kiren Rijiju, stated along with his ministry and tweeted: “In exercise of the power conferred under Constitution of India, President Ram Nath Kovind, in consultation with Chief Justice of India N.V. Ramana, is pleased to transfer seven Judges in different High Courts of the country.”

The transfer of seven Judges to different High Courts of the country was approved and notified by the Central Government on Monday, October 11, 2021. The recommendations were transferred by the Supreme Court Collegium, led by Chief Justice N.V. Ramana, to the Central Government last month, dated September 17, 2021.  

Timeline:

  • On September 17, 2021,  the Collegium sent over 100 recommendations for appointments, transfers, and re-transfers in various High Courts to the Central Government for approval.
  • On October 5, 2021, the Centre had notified about the transfer of 15 High Court Judges from 11 High Courts. 
  • On October 9, the Centre had acquainted about the appointment of new Chief Justices for 13 High Courts by way of transfer of elevation, where eight judges got elevated as Chief Justices, and five transferred to High Court. 

The tremendous step towards the reshuffle was orchestrated by the Supreme Court Collegium led by Chief Justice N.V. Ramana. Moreover, the shuffle took place triply in the last ten days. 

Chief Justice Ramana has emphasized that his Collegium is on the warpath to fill up the long-pending vacancies in the High Courts and urged the Central Government to work together with the judiciary to decide the recommendations. 

One being asked, Law and Justice Minister Kiren Rijiju told TOI that his ministry has been clearing all files of appointments “in record time,” and both the SC collegium and the Government are “on the same page” on filling up pending vacancies.

List of  13 High Court Judges that were shuffled on October 9, 2021:

  1. Justice Ranjit V. More appointed as Chief Justice of Meghalaya High Court 
  2. Chief Justice Satish Chandra Sharma from Karnataka High Court to the Chief Justice of Telangana High Court
  3. Justice Prakash Srivastava of Madhya Pradesh High Court to the Chief Justice of Calcutta High Court 
  4. Chief Justice R.V. Malimath of Himachal Pradesh High Court to the Chief Justice of Madhya Pradesh High Court
  5. Justice Ritu Raj Awasthi appointed as Chief Justice of Karnataka High Court
  6. Chief Justice Prashant Kumar Mishra of Chhattisgarh High Court to the Chief Justice of Andhra Pradesh High Court
  7. Justice Aravind Kumar appointed as the Chief Justice of the Gujarat High Court
  8. Chief Justice Indrajit Mahanty from Rajasthan High Court to Tripura Chief Justice
  9. Chief Justice Mohammad Rafiq of Madhya Pradesh to the Chief Justice of Himachal Pradesh High Court
  10. Chief Justice Biswanath Somadder from Meghalaya High Court to the Chief Justice of Sikkim High Court
  11. Chief Justice A.K. Goswami from Andhra Pradesh High Court to the Chief Justice of Chhattisgarh High Court
  12. Chief Justice A.A. Kureshi from Tripura High Court to the Rajasthan High Court
  13. Chief Justice Rajesh Bindal from Calcutta High Court to Chief Justice of Allahabad High Court

List of judges reshuffled on October 11, 2021:

  1. Justice Rajan Gupta from Punjab and Haryana HC to Patna HC 
  2. Justice T.S. Sivagnanam from Madras HC to Calcutta HC 
  3. Justice Sureshwar Thakur from Himachal Pradesh HC to Punjab & Haryana HC 
  4. Justice P.B. Bajanthri from Karnataka HC to Patna HC 
  5. Justice Sanjeev Prakash Sharma from Rajasthan HC to Patna HC 
  6. Justice T. Amarnath Goud from Telangana HC to Tripura HC 
  7. Justice Subhash Chand from Allahabad HC to Jharkhand HC

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