Whether Lower Court Can Refuse To Proceed With The Trial After Expiry of 6 Months if HC Has Not Vacated The Stay

 Whether Lower Court Can Refuse To Proceed With The Trial of Case After Expiry of 6 Months if High Court Has Not Vacated The Stay

We are constrained to point out that in our directions contained in the

judgment delivered in Criminal Appeal Nos. 1375-1376 of 2013 [Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. vs. Central Bureau of Investigation] and, in particular, para 35, it is stated thus:

“35. … …. In cases where stay is granted in future,

the same will end on expiry of six months from the

date of such order unless similar extension is

granted by a speaking order. The speaking order must

show that the case was of such exceptional nature

that continuing the stay was more important than

having the trial finalized. 

The trial Court where

order of stay of civil or criminal proceedings is

produced, may fix a date not beyond six months of

the order of stay so that on expiry of period of

stay, proceedings can commence unless order of

extension of stay is produced.”

Learned Additional Chief Judicial Magistrate, Pune, by his

order dated 04.12.2019, has instead of following our judgment in

letter as well as spirit, stated that the Complainant should move

an application before the High Court to resume the trial. The

Magistrate goes on to say: “The lower Court cannot pass any order

which has been stayed by the Hon’ble High Court, Bombay with due

respect of ratio of the judgment in Asian Resurfacing of Road

Agency Pvt. Ltd. & Anr. (supra).” 

We must remind the Magistrates

all over the country that in our pyramidical structure under the

Constitution of India, the Supreme Court is at the Apex, and the

High Courts, though not subordinate administratively, are certainly

subordinate judicially. This kind of orders fly in the face of

para 35 of our judgment. We expect that the Magistrates all over

the country will follow our order in letter and spirit. Whatever

stay has been granted by any court including the High Court

automatically expires within a period of six months, and unless

extension is granted for good reason, as per our judgment, within

the next six months, the trial Court is, on the expiry of the first

period of six months, to set a date for the trial and go ahead with

the same.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

MISCELLANEOUS APPLICATION NO. 1577 OF 2020

IN

CRIMINAL APPEAL NOS. 1375-1376 OF 2013

Whether Delay in Delivery of Reasoned Judgment Violates Article 21 of the Constitution

Whether Delay in Delivery of Reasoned Judgment Violates Article 21 of the Constitution

The Report was submitted by the Registrar

(Judicial) stating that the order was Pronounced on

21.01.2020 being Only The Operative Portion and the

Reasons were received by the Registry only on 09.10.2020

after almost 9 Months. It was uploaded on the same

date.

9. On the Aforesaid Short Ground, without even looking

at any other aspect, we issued Notice Returnable for

today and Stayed the Operation of the Impugned Order.

10. We must note with regret that the counsel extended

through Various Judicial Pronouncements including the

one referred to aforesaid appear to have been ignored,

more Importantly where Oral Orders are Pronounced. In

case of Such Orders, it is expected that they are either

dictated in the Court or at least must follow

immediately thereafter, to facilitate Any Aggrieved

Party to seek Redressal from the Higher Court. The

Delay in Delivery of Judgments has been observed to be a

Violation of Article 21 of the Constitution of India in

Anil Rai’s case (supra) and as stated aforesaid, the

problem gets aggravated when the operative portion is

made available early and the reasons follow much later.

11. It cannot be countenanced that between the date of

the Operative Portion of the Order and the Reasons

Disclosed, there is a Hiatus Period of 9 Months!

This is much more than what has been observed to be The

Maximum Time Period for Even Pronouncement of Reserved

Judgment as per Anil Rai’s case (supra).

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL N O.3564/2020

 

Supreme Court Guidelines for Speedy Disposal of Execution Of Decree

Supreme Court Guidelines for Speedy Disposal of Execution of Decree

 All Courts dealing with Suits and Execution Proceedings shall

Mandatorily follow the below-mentioned directions:

1. In suits relating to delivery of possession, the court

must examine the parties to the suit under Order X in

relation to third  party interest and further exercise the power under

Order XI Rule 14 asking parties to disclose and produce

documents, upon oath, which are in possession of the parties

including declaration pertaining to third party interest in

such properties.

3. In appropriate cases, where the possession is not in

dispute and not a question of fact for adjudication before the

Court, the Court may appoint Commissioner to assess the

accurate description and status of the property.

4. After examination of parties under Order X or

production of documents under Order XI or receipt of

commission report, the Court must add all necessary or

proper parties to the suit, so as to avoid multiplicity of

proceedings and also make such joinder of cause of action in

the same suit.

5. Under Order XL Rule 1 of CPC, a Court Receiver can be

appointed to monitor the status of the property in question

as custodia legis for proper adjudication of the matter.

6. The Court must, before passing the decree,

pertaining to

7. delivery of possession of a property ensure that the

decree is unambiguous so as to not only contain clear

description of the property but also having regard to the

status of the property.

8. In a money suit, the Court must invariably resort to

Order XXI Rule 11, ensuring immediate execution of decree

for payment of money on oral application.

9. In a suit for payment of money, before settlement of

issues, the defendant may be required to disclose his assets

on oath, to the extent that he is being made liable in a suit.

The Court may further, at any stage, in appropriate cases

during the pendency of suit, using powers under Section 151

CPC, demand security to ensure satisfaction of any decree.

10. The Court exercising jurisdiction under Section 47 or

under Order XXI of CPC, must not issue notice on an

application of third-party claiming rights in a mechanical

manner. Further, the Court should refrain from entertaining

any such application(s) that has already been considered by

the Court while adjudicating the suit or which raises any

such issue which otherwise could have been raised and

determined during adjudication of suit if due diligence was

exercised by the applicant.

11. The Court should allow taking of evidence during the

execution proceedings only in exceptional and rare cases

where the question of fact could not be decided by resorting

to any other expeditious method like appointment of

Commissioner or calling for electronic materials including

photographs or video with affidavits.

12. The Court must in appropriate cases where it finds the

objection or resistance or claim to be frivolous or mala fide,

resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant

compensatory costs in accordance with Section 35A.

13. Under section 60 of CPC the term “…in name of the

judgment- debtor or by another person in trust for him or on

his behalf” should be read liberally to incorporate any other

person from whom he may have the ability to derive share,

profit or property.

14. The Executing Court must dispose of the Execution

Proceedings within six months from the date of filing, which

may be extended only by recording reasons in writing for

such delay.

15. The Executing Court may on satisfaction of the fact that

it is not possible to execute the decree without police

assistance, direct the concerned Police Station to provide

police assistance to such officials who are working towards

execution of the decree. Further, in case an offence against

the public servant while discharging his duties is brought to

the knowledge of the Court, the same must be dealt

stringently in accordance with law.

16. The Judicial Academies must prepare manuals and

ensure continuous training through appropriate mediums to

the Court personnel/staff executing the warrants, carrying

out attachment and sale and any other official duties for

executing orders issued by the Executing Courts.

43. We further direct all the High Courts to reconsider and

update all the Rules relating to Execution of Decrees, made under

exercise of its powers under Article 227 of the Constitution of

India and Section 122 of CPC, within one year of the date of this

Order. The High Courts must ensure that the Rules are in

consonance with CPC and the above directions, with an

endeavour to expedite the process of execution with the use of

Information Technology tools. Until such time these Rules are

brought into existence, the above directions shall remain

enforceable.

SC Issues Guidelines for Cheque Bounce Cases - Asks Govt To Amend Laws

The SC said that over the years, Courts have been inundated with Cheque Bounce Complaints which could not be decided within a reasonable period and “this gargantuan pendency of complaints … has had an adverse effect in disposal of other criminal cases.”

To ensure speedy disposal of more than 35 lakh Cheque Bounce Cases pending in Various Courts, the Supreme Court on Friday gave a number of directions, including asking the Government to amend the laws to allow clubbing of multiple trials in cases filed for a same transaction against anyone.

To avoid multiplicity of proceedings and to reduce the burden on the Docket of the Criminal Courts, a 5-Judge Constitution Bench led by Chief Justice S.A. Bobde recommended that “Suitable Amendments” be made in the Negotiable Instruments Act for provision of one trial against a person for multiple offences under Section 138 committed within a period of 12 months.

Of the 2.31 crore pending criminal cases, 35.16 lakh relate to dishonoured cheques. The reason for the backlog of cases, according to amici curiae, is that while there is a steady increase in complaints every year, the rate of disposal does not match the rate of institution of complaints.

The SC said that over the years, courts have been inundated with cheque bounce complaints which could not be decided within a reasonable period and “this gargantuan pendency of complaints … has had an adverse effect in disposal of other criminal cases.”

Stating that undue delay in service of summons is the main cause for the disproportionate accumulation of complaints under Section 138 before the courts, the judges requested the high courts to issue practice directions to the trial courts to treat service of summons in one complaint pertaining to a transaction as deemed service for all complaints filed before the same court relating to dishonour of cheques issued as part of the transaction.

It directed that the HCs may issue practice directions to the magistrates to record cogent and sufficient reasons before converting summary trial to summons trial in exercise of power under the second proviso to Section 143 of the Act. Even the examination of witnesses should be permitted on affidavit and only in exceptional cases, the magistrate may examine the witnesses personally, it said.

On March 5 last year, the top court had registered a suo motu case and decided to evolve a concerted and coordinated mechanism for speedy disposal of such cases. It had appointed senior advocate Siddharth Luthra and advocate K Parameshwar as amici curiae.

The SC had sought the Centre’s view on creating additional courts to deal with cheque bounce cases. However, the Centre, through the Department of Financial Services (DFS), had dismissed the suggestion. Instead of setting up additional special courts, the DFS had suggested measures like capping the maximum number of hearings.

Can A Court Issue A Non-Bailable Warrant If A Summons Were Issued On WhatsApp

 

Can a court issue a non-bailable warrant against the accused in a criminal case if a summons were issued to him on Whatsapp?

 The Crl.M.C is filed aggrieved by the non-bailable warrant issued against the petitioner. The specific case put forth by the petitioner is that the summons, alleged to have been sent through WhatsApp to his mobile phone, had never reached him, as he has not downloaded the WhatsApp application on his phone.

4. The above provisions do not provide for service of summons

through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons.

6. In the case at hand, the summons is stated to have been

issued through WhatsApp, which is not an accepted mode of service.

As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANOOP JACOB Vs STATE OF KERALA

Crl.M.C.No.1658 of 2021

Dated this the 9th day of April, 2021

PRESENT

 MR.JUSTICE V.G.ARUN

The petitioner is the 1st accused in C.C.No.134 of 2021 on the

files of the Additional Chief Judicial Magistrate (Special Court for Cases

related to MPs/MLAs), Ernakulam. The offences alleged are under

Sections 143, 147, 149, 269, 271 and 188 of IPC, Section 118(e) of the

Kerala Police Act and Sections 4(2)(a), 4(2)(e) and 5 of the Kerala

Epidemic Disease Ordinance, 2020. The Crl.M.C is filed aggrieved by

the non-bailable warrant issued against the petitioner. The specific

case put forth by the petitioner is that the summons, alleged to have

been sent through WhatsApp to his mobile phone, had never reached

him, as he has not downloaded the WhatsApp application on his

phone.

2. In view of the contentions, it may be apposite to have a look at

Section 62 of Cr.P.C, dealing with mode of service of summons;

“62. Summons how served.

(1) Every summons shall be served by a police officer, or

subject to such rules as the State Government may make in this

behalf, by an officer of the Court issuing it or other public

servant.

(2) The summons shall, if practicable, be served personally

on the person summoned, by delivering or tendering to him one

of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if

so required by the serving officer, sign a receipt therefor on the

back of the other duplicate.”

3. Going by Section 65 of Cr.P.C, if service could not be effected

as provided under Section 62, the serving officer shall affix one of the

duplicates of the summons to the conspicuous part of the house or

homestead in which the person summoned ordinarily resides.

Thereafter, the court should make such enquiries as it thinks fit and

either declare the summons to have been duly served or order fresh

service in such manner as it considers proper. As per Rule 7 of the

Criminal Rules of Practice, Kerala, summons issued to the accused and

witnesses shall ordinarily be signed by the Chief Ministerial Officer of

the Court and the words “By order of the Court” shall invariably be

prefixed to the signature of the Ministerial Officer.

4. The above provisions do not provide for service of summons

through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, it may be

pertinent to note the insertion of Section 144 in the Negotiable

Instruments Act (for short, 'the Act') for the purpose of overcoming the

delay in serving summons on the accused in complaints under Section

138 of the Act. Section 144, providing for service of summons by

speed post or by approved courier service, was inserted by Act 55 of

2002. In Indian Banks Assn. v. Union of India [(2014) 5 SCC 590],

the Honourable Supreme Court alerted the Magistrates about the need to adopt a pragmatic and realistic approach while issuing process and

had directed to issue summons by post as well as by email. Later, in

Meters & Instruments (P) Ltd. v. Kanchan Mehta [(2018) 1 SCC

560], the Apex Court observed that in complaints under Section 138, it may be desirable for the complainant to give his bank account number and if possible, the email ID of the accused. Recently, in Makwana Mangaldas Tulsidas V. State of Gujarat [(2020) 4 SCC 695], it has

been held that the Banks are bound to provide the requisite details by

developing an information sharing mechanism, where the Banks can

share all the requisite available details of the accused, who is the

account holder, with the complainant and the Police for the purpose of

execution of process.

6. In the case at hand, the summons is stated to have been

issued through WhatsApp, which is not an accepted mode of service.

As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.

In the result, the Crl.M.C is disposed of permitting the petitioner

to appear before the Additional Chief Judicial Magistrate's Court

(Special Court for Cases related to MPs/MLAs), Ernakulam in

C.C.No.134 of 2021 and to move an application for bail. In such event, the bail application shall be considered on the same day, deeming the petitioner to have appeared on summons. In order to provide an opportunity for the petitioner to appear before the court below and seek bail, the non-bailable warrant issued against him shall be kept in abeyance for a period of four weeks.