Naveen Kumar vs State of Karnataka and another. Criminal Petition 7019/2020 decided on 22 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357230/1/CRLP7019-20-22-12-2020.pdf

Relevant paragraphs.: 8. It is stated that it is due to the large number of samples which are received, there being limited resources available for the Forensic Science Laboratory, that there is a delay in submitting the examination reports and the same is not intentional and therefore, Smt. Namitha Mahesh, learned HCGP would submit that the Forensic Science Laboratory has acted in the best possible manner with the limited resources, there are no errant officials as such no action is required to be taken, she further submits that all officers of FSL are working overtime to submit their reports.

9. It is further stated that the organisational set up of Forensic Science Laboratory in the State is that  there is an apex State Forensic Science Laboratory (SFSL) located in Bengaluru where 13 different Sections are functioning.

10. The State has also established five Regional  Forensic Science Laboratory (RFSL) in five Police Range headquarters viz Mysuru, Mangaluru, Davanagere, Belagavi and Kalaburgi, however, out  of 13 Sections a maximum of only two sections are functioning in as such, all the samples as regards  the remaining 11 other Sections are required to be sent to the SFSL for examination.

12. Apart from the above, it is stated  that the officers  of        the        Forensic                Science    laboratories     are    also required to travel to courts to depose  as  regards the reports authored by him or her.

13. There are 6994 cases which are pending  trial, on account of the reports from the FSL not having been received. There are more than 35738 samples pending examination. The shocking and unacceptable aspect is the time taken for submission of reports – a Norcotic matter takes 1 year, Computer/mobile/audio-video forensics takes about 1 and half year, a DNA test takes 1  and haf years, these being average time, as can be seen from the present case itself, it has taken 4 years for the report to be submitted. If the accused is in custody, the delay would result in a large number of undertrials being kept in jail during the pendency of the above report. On account of the delay in receipt of the aforesaid scientific reports, there is a  high social cost. If the report is received belatedly and the same does not support the case of the prosecution, many a time it could result in innocent persons being incarcerated. The other side of the coin is that the victim or victim’s family also suffers on account of such delay, not knowing what will  happen and when. Each accused has a right of speedy trial. The victim or the victim’s family also has a right to a speedy trial. An Accused has a right to an  expeditious trial, more so when he/she is in judicial custody. The said custody cannot be  extended merely on the ground that the FSL is unable to furnish the reports in time  and/or the number of FSL are lesser  than that required. Such a delay infringes on the right to life of an accused under Article 21 of the constitution of India. Delay by the FSL in providing a report whatever the reason may be is resulting in a situation which cannot be countenanced under law. In the case of an accused on bail, he/she continues to evade prosecution due to the delay in receipt of these reports. The effect of the delay in furnishing the reports not only delays the trial in a matter,  it is also possible that due to the said delay the sample may degrade or get  contaminated, thus negating the  very purpose of forensic examination. The details of samples being degraded or contaminated have not been provided. However, this would also be required to be looked into. It is needless to say that Forensic Evidence like DNA reports, chemical analysis reports, bioanalysis reports play a critical role in the investigation of serious crimes, like Murder, sexual assault cases, forgery etc.,. The delay in submitting forensic reports by FSL necessarily hampers the proceedings in a case. One of the biggest impediment to a speedy trial is the delay in the filing of FSL reports. Cases are adjourned  for  years due to non-receipt of these reports. Some cases are not even committed to the sessions court or special Court as the case may be due to non-receipt of the reports.

Guidelines are required to be issued as regards the time period in which a particular kind of sample would be examined and  report submitted to the concerned court, as regards future samples received. A monitoring system is required to be established to monitor the passage of the sample from the time it was collected to the date of submission of the report in Court. Apart from the above, a study as regards the latest equipment available, modernisation of the Laboratories, a process of the equipment to be updated from time to time is also to be put in place. From the data provided, it is also seen that many of these scarce human  resources spend unproductive man-days in travelling to the courts in far-flung places in Karnataka to depose in the matter. Thus bringing about one more inefficiency in the system. In the year 2018, 1135 man-days were lost, and in 2019, 1222 man-days were lost.

Even if the said officer of the FSl is required to appear and depose in a particular manner, it will also be advisable to permit the said evidence to be led through video conference facilitating. It is immediately required to connect the FSL’s with the Courts in  a  similar manner as the jails are connected to the Court. This would save a large number of man-days lost on account of such unnecessary travel by the FSL officers. The trial Courts to permit the examination and or cross-examination of the FSL officers through video conferencing. The trial Court has to maintain a strict vigil  on adjournments being granted for the production of FSL reports, the trial Court ought to insist on the reports being  submitted at the earliest.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Azim Hasham Premji and others vs India Awake For Transparency. Writ Petition 10140/2020 decided on 18 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359290/1/WP10140-20-18-01-2021.pdf

Question: Whether any person can file a proceeding against the directors of a company and/or the company under Section 439(2) of the Act of 2013 ?

14.5 The requirement of prior sanction under the Prevention of Corruption Act is to protect an officer against unnecessary prosecution during the time that he was discharging his function as an officer of the State, in such situation it is mandated that prior sanction from the concerned authority has to be obtained which authority would apply its mind to the facts and come to a conclusion as to whether the proceedings are to be initiated or not.

14.6 The same in my opinion cannot be equated to authorised person under Section 439. There is a specific prohibition to the Court to take cognizance except upon a complaint in writing by the registrar, a shareholder of the company or a person authorised by the Central Government in that behalf.

14.7 Admittedly, the respondent is neither the Registrar nor a shareholder nor has he obtained any authorisation from the Central Government. Therefore, the respondent would not in my considered opinion have any locus to initiate penal proceedings under Section 439 of the Act of 2013 or even if he initiates any action, the court dealing with such a matter cannot take cognizance of such a complaint.

14.8 I Answer Point No.2 by holding that Act of 2013 being a Special enactment containing a specific embargo, the embargo is required to be given complete effect to by this Court. This Court cannot travel beyond the intention of the legislature and water down the requirements of Section 439. In view thereof, I am of the considered opinion that the finding of the Special Economic Court in its order dated 3.7.2017 was proper and correct. Section 19 of the Prevention of Corruption Act and Section 439 of Act of 2013 are not pari materia with each other.

15.1 In view of the above finding in respect of point No.2, it is but required that to initiate proceeding under Section 439(2) and/or if before the Court taking cognizance such matter arises than the court can take cognisance only on a complaint in writing by the Registrar or shareholder of the company or a person authorised by the Central Government in that behalf.

15.2 I answer Point No. 3 by holding that apart from the named persons a complaint can also be filed by a person authorised by Securities and Exchange Board of India in terms of the proviso (1) of Section 439(2) or the Official Liquidator in terms of Section 439(4), no other person can initiate any criminal proceeding against a

Compiled by S. Basavaraj, Advocate, High Court.

M/s. JSW Steel Limited vs Mysore Minerals Limited. Writ Petition 15190/2020 decided on 13 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf

HELD: The concept of “bar of limitation” on the one hand and the idea of “delay & latches” on  the  other  by  their very nature, are different from each other, although their successful invocation may arguably serve the same purpose in a litigation; the former absolutely bars the recourse to remedy; and the later may deny the remedy in the proceedings in question, the right to remedy being kept open for pursuit in other proceedings; prescription  of period of limitation for claiming legal remedies is normally the prerogative of the legislature, whereas, the ground of ‘delay & latches’ is a matter of discretion inhering the Courts; this discretion needs to be exercised in accordance with the rules of reason & justice, is beside the point; the right to remedy ordinarily commits legal suicide if the limitation period prescribed therefor lapses; no court/authority has discretion to entertain  the  claim  for  it’s grant; Sec.3(1) of the Limitation Act, 1963 dictates their rejection at the threshold, regardless  of  the  contention from the other side.

The delayed making of a Counterclaim  by way  of amendment of Written Statement is one thing and the making of a time barred Counterclaim by way of such amendments, is another; in treating the former, the court has discretion in the sense that it  may  grant  leave  to amend the Written Statement or refuse; in other words, a Written Statement can be amended even belatedly, for introducing a Counterclaim therein with the leave of court, provided that leave to amend is sought for within the statutory period of limitation; for that purpose, a Counterclaim shall be treated to be a suit by fiction of law; however, leave may be denied inter alia on the ground of ‘delay & latches’, even if the period of limitation has not expired; in such event, defendant may bring  a  separate  suit; this is one scenario.

The other scenario is: where a time barred Counterclaim is sought to be introduced by amendment to the Written Statement;  in such  a case,  no  leave can ever  be granted; Court has no discretion to entertain such a claim; in such matters, there is no discretion to disobey the mandate of law, namely, Sec.3(1) r/w 3(2)(b)(ii) of the Limitation Act; a time-barred Counterclaim  cannot  be made even if there is no ‘delay & latches’ in moving the application for amendment of pleadings; to put it shortly, time-barred claims cannot be the subject matter of  pleadings or their amendments.

M/s. JSW Steel Limited vs Mysore Minerals Limited. Writ Petition 15190/2020 decided on 13 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf

Note: The kind of law reporting by few agencies in the recent past has reached the level of sensationalism. Headings are crafted in such a way as to receive sharp reactions on the social network. Few judges are targeted for their judgments. In the guise of Articles by legal experts and retired judges, a particular ideology is being propagated. These agencies are sponsored by groups having direct political nexus. The photos accompanying article are sometimes obnoxious. Recently a politician with criminal conviction and another one with charge sheet in criminal cases are shown along with Supreme Court Judges. Law reporting is reduced to the level of TRP gaining television channels. The Karnataka High Court has recently dealt with the related issue regarding flawed reporting as follows in the above named judgment.

“Flawed method of law-reporting and its inherent dangers: It is high time that some  strict norms are laid down  for regulating the mode and method of law reporting; there are several agencies in the country which have their own uncertain and varying ways of reporting the judgments of constitutional courts; the pattern of law report does not match with that of the original judgment on record; the paragraphs in the reported judgments at times do  not  match with the paragraphs in the original; not rarely, even paraphrasing of some parts of original judgments  by  the law reporting agency, is also noticed when rulings are cited by the lawyers; all this puts both Bar and the  Bench  to  some avoidable difficulty in ascertaining the law laid down and its scope; there is a lurking risk of the editorial notes that are interjected in the body of judgments reported, being inadvertently construed as part of the ratio;  this  is not a happy thing to happen; much deliberation in this regard is not needed.“

M/s. JSW Steel Limited vs Mysore Minerals Limited. Writ Petition 15190/2020 decided on 13 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf

Relevant paragraphs: 1. Petitioner being the plaintiff in a money suit in Com.O.S.No.7213/2012 is at the door steps of the  Writ  Court for assailing the order dated 10.11.2020 a copy whereof is at Annexure-A whereby the learned LXXXII  Addl. City Civil Judge, Bengaluru, having allowed respondent-defendant’s application in I.A.No.IV filed  u/o  VI  Rule 17 r/w  Sec.  151  of CPC, 1908 has  accorded leave  to amend the Written Statement for incorporating a Counterclaim therein; the respondent having  entered  caveat through it’s counsel, opposes the Writ Petition.

4.A The question whether a Counterclaim can be filed separately after the filing of the Written Statement or can  be introduced by way of amendment to the already filed Written Statement, subject to compliance of requisites and save with all just exceptions, is no longer res integra vide Ashok Kumar Kalra vs Wind Cdr Surendra Agnihotri and others (2020) 2 SCC 394.

Questions for determination:

(i) whether leave to incorporate the time- barred Counterclaim by way of amendment to the Written Statement can be granted u/o VI Rule 17 of CPC, 1908 … ? and

(ii) whether Court granting leave to amend the Written Statement for taking up a Counterclaim  can relax the period of limitation prescribed for filing the same, by invoking the doctrine of relation back … ?

4F(a) The concept of “bar of limitation” on the one hand and the idea of “delay & latches” on  the  other  by  their very nature, are different from each other, although their successful invocation may arguably serve the same purpose in a litigation; the former absolutely bars the recourse to remedy; and the later may deny the remedy in the proceedings in question, the right to remedy being kept open for pursuit in other proceedings; prescription  of period of limitation for claiming legal remedies is normally the prerogative of the legislature, whereas, the ground of ‘delay & latches’ is a matter of discretion inhering the Courts; this discretion needs to be exercised in accordance with the rules of reason & justice, is beside the point; the right to remedy ordinarily commits legal suicide if the limitation period prescribed therefor lapses; no court/authority has discretion to entertain  the  claim  for  it’s grant; Sec.3(1) of the Limitation Act, 1963 dictates their rejection at the threshold, regardless  of  the  contention from the other side.

4F(a) The delayed making of a Counterclaim  by way  of amendment of Written Statement is one thing and the making of a time barred Counterclaim by way of such amendments, is another; in treating the former, the court has discretion in the sense that it  may  grant  leave  to amend the Written Statement or refuse; in other words, a Written Statement can be amended even belatedly, for introducing a Counterclaim therein with the leave of court, provided that leave to amend is sought for within the statutory period of limitation; for that purpose, a Counterclaim shall be treated to be a suit by fiction of law; however, leave may be denied inter alia on the ground of ‘delay & latches’, even if the period of limitation has not expired; in such event, defendant may bring  a  separate  suit; this is one scenario.

4F(c) The other scenario is: where a time barred Counterclaim is sought to be introduced by amendment to the Written Statement;  in such  a case,  no  leave can ever  be granted; Court has no discretion to entertain such a claim; in such matters, there is no discretion to disobey the mandate of law, namely, Sec.3(1) r/w 3(2)(b)(ii) of the Limitation Act; a time-barred Counterclaim  cannot  be made even if there is no ‘delay & latches’ in moving the application for amendment of pleadings; to put it shortly, time-barred claims cannot be the subject matter of  pleadings or their amendments; a careful perusal of the Written Statement and the subject amendment application filed by the respondent, leaves no  manner  of  doubt  that the Counterclaim in  question  is  hopelessly  time-barred and a right not to be Counterclaimed has accrued to the petitioner-plaintiff.

The respondent’s contention that he has already laid the foundation for the filing of Counterclaim in the original Written Statement itself, pales into insignificance since what the law of limitation  bars  is  the  remedy and  not the grounds on which it is founded; in  other  words, even if the respondent had taken up all the grounds in his Written Statement as filed originally, a prayer for counter decree cannot be belatedly superadded once the same becomes time-barred.

In the above circumstances, this Writ Petition is entitled to succeed and accordingly it does; a Writ of Certiorari issues quashing the impugned order; the subject application of the respondent seeking leave to amend the Written Statement for introducing the Counterclaim is dismissed.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Manish Kumar v. Union Of India And Another. WRIT PETITION(C) NO.26 OF 2020 decided on 19/01/2021
Judgment Link:
https://main.sci.gov.in/supremecourt/2020/583/583_2020_33_1501_25559_Judgement_19-Jan-2021.pdf

Factual antecedents. The challenge is to Sections 3, 4 and 10 of the Insolvency and Bankruptcy Code (Amendment) Act 2020. Section 3 of the impugned amendment amends Section 7(1) of the Insolvency and Bankruptcy Code, 2016. Section 4 of the impugned amendment incorporates an additional Explanation in Section 11 of the Code. Section 10 of the impugned amendment inserts Section 32A in the Code.

HELD: The impugned amendments are upheld. However, this is subject to the following directions, issued under Article 142 of the Constitution of India:
i. If any of the petitioners move applications in respect of the same default, as alleged in their applications, within a period of two months from today, also compliant with either the first or the second proviso under Section 7(1), as the case may be, then, they will be exempted from the requirement of payment of court fees, in the manner, which we have detailed in the paragraph just herein before.
ii. Secondly, we direct that if applications are moved under Section 7 by the petitioners, within a period of two months from today, in compliance with either of the provisos, as the case may be, and the application would be barred under Article 137 of the Limitation Act, on the default alleged in the applications, which were already filed, if the petitioner file applications under Section 5 of the Limitation Act, 1963, the period of time spent before the Adjudicating Authority, the Adjudicating Authority shall allow the applications and the period of delay shall be condoned in regard to the period, during which, the earlier applications filed by them, which is the subject matter of the third proviso, was pending before the Adjudicating Authority.
iii. We make it clear that the time limit of two months is fixed only for conferring the benefits of exemption from court fees and for condonation of the delay caused by the applications pending before the Adjudicating Authority. In other words, it is always open to the petitioners to file applications, even after the period of two months and seek them benefit of condonation of delay under Section 5 of the Limitation Act, in regard to the period, during which, the applications were pending before the Adjudicating Authority, which were filed under the unamended Section 7, as also thereafter.

Compiled by Sumana Chamarty, Advocate, Daksha Legal.

Pampapathi vs The State of Karnataka. Criminal Appeal 100346/2016 and connected appeals decided on 22 December 2020. Justice B.A. Patil and Justice M.I. Arun.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358937/1/CRLA100127-17-22-12-2020.pdf

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Shriram Properties Pvt Ltd vs State of Karnataka and others. Writ Petition 47747/2017 and connected matters decided on 19 January 2021. Justice Aravind Kumar and Justice B.A. Patil.

HELD: We uphold the validity of the Constitutional validity of the Karnataka Land Grabbing Prohibition Act, 2011. The evidence admitted in civil court can be admitted in the Special Court.

Location of Land Grabbing Courts in capital city is onerous. Transferring of cases taking jurisdiction of the Civil Court without any reasons is not correct. Hence we direct the Special Court to re examine the transfer of cases.

Special Court to take note of the observations made in this Judgment and deal with cases individually. Petitioners may apply to the Special Court for dismissal or dropping of the proceedings. Till the adjudication is done, demolition of the building or forcible taking possession is not to be done.

Mandamus issued to constitute additional courts preferably in all districts.

Observations of the Court will be updated soon.

S. Basavaraj, Advocate, Daksha Legal.

The latest Standard Operating Procedure issued by the Karnataka High Court on 18 January 2021 withdraws the relaxation made to the dress code of the Advocates. The Advocates are expected to follow normal dress code with effect from 1st February 2021.

Read the SOP Notification PDF

M.B.Adinarayana vs The State of Karnataka and others. Writ Petition 2073/2020 and connected matter decided on 4 January 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/312451/1/WP2073-19-04-01-2020.pdf

Relevant paragraphs: 1 and 5. The question which arises for consideration in both the petitions is whether the Karnataka Parliamentary Secretaries Salaries, Allowances and Miscellaneous Provisions Act,  1963 (for short ‘the said Act of 1963) as amended by the Karnataka Parliamentary Secretaries Allowances (Amendment)  Act,  1999 is constitutionally valid? The said Act of 1963 empowers the Hon’ble Chief Minister to appoint Parliamentary Secretaries from amongst the members of the Karnataka Legislative Assembly and the Karnataka Legislative Council.  The basic challenge is on the ground that the State Legislature lacked the legislative competence to make the said Act.   The other challenge is on the ground that for all intents   and purposes, the Parliamentary Secretaries are on par with the Ministers and the said Act enables the Hon’ble Chief Minister to cross the ceiling on number of Ministers prescribed under Article 164 (1-A) of the Constitution of India. Therefore, the said Act infringes the aforesaid Constitutional provision. These  are broadly the two main grounds on which challenge has been incorporated.

11. It is true that there is no specific provision under the said Act, which specifically lays down that the Parliamentary Secretaries shall be entitled to the status of Hon’ble Ministers or Ministers of State or Deputy Ministers to whom, the Hon’ble Governor administers the oath of office on the advice of the Hon’ble Chief Minister. But, the said Rules show that there is hardly any difference between the role of a Deputy Minister or a Minister of State without independent charge and a  Parliamentary Secretary. The most of the duties and functions of Parliamentary Secretaries are akin to the Legislative duties of a Deputy Minister or a Minister of State without independent charge.  The drastic amendments made by the amendment Act  of 1999 makes the intention of the Legislature  very  clear.  Firstly, as stated earlier, by the amended Act, a provision was made for the first time that the  Parliamentary Secretaries shall  be entitled to the salaries and allowances equivalent to the salaries and allowances admissible to the Hon’ble Ministers.

Judgment of the Supreme Court in Bimolangshu Roy (dead) through Lrs –vs- State of Assam and another (2018) 14 SCC 408) relied on.

19. The Apex Court has held that the State Legislature has no competence to enact a law providing for appointment of Parliamentary Secretaries. Moreover, the said  Act does not confer any privileges on the members of both Houses as legislators qua Legislature.

24. There is another aspect of the case based on the provisions of Article-164 (1-A) of the Constitution. We have already held in paragraph-11 above that there is hardly any difference between the role of a Deputy Minister and a Parliamentary Secretary. On a conjoint reading of the various provisions of the said Act and the said Rules, we have already come to the above conclusion, which shows that for all intents and purposes, the office of the Parliamentary Secretaries has trappings of the post of Hon’ble Ministers of State without independent charge or at least Hon’ble Deputy Ministers. The said Act will work as a devise available to the Hon’ble Chief Minister to appoint the members of the  Legislative  Assembly and Legislative Council of his choice as parliamentary Secretaries, who cannot be made as Ministers  due  to constraints of Article 164(1-A). This will completely defeat and nullify the upper ceiling limit imposed by Article 164(1-A) of the Constitution of India on number of Ministers. Hence, even otherwise, the said enactment is ultra vires the constitutional mandate in Article 164(1-A).

We hold that the State Legislature of Karnataka had no legislative competence to enact the Karnataka Parliamentary Secretaries Salaries, Allowances and Miscellaneous Provisions Act, 1963 as amended by Act No. 7 of 1999.

Compiled by S. Basavaraj, Advocate, Daksha Legal.