DNA a serious matter, should not be lightly reported
The learned magistrate committed error in directing for conducting DNA test on insufficient grounds and material. The Investigation Authorities have not completed the investigation and as roving and fishing enquiry, they cannot be permitted to conduct DNA test on the appellant. It is further submitted that respondent No.2 is claimed to be an office bearer of fake association who due to personal illwill against the appellant has lodged FIR questioning the caste certificate of the appellant. It is submitted that there is an enactment viz. The Andhra Pradesh (SC, ST and BCs) Regulation of Issue of Community Certificates Act, 1993 under which there is a provision for cancellation of false community certificate, provision of penalty and other relevant provisions. The FIR lodged by respondent No.2 was an act of malice and it was with an intent to harass the appellant.
The FIR was lodged where the allegation against the appellant was obtaining a false caste certificate of Scheduled Caste with a further allegation that he originally belonged to ‘Telanga’ caste. The appellant was arrested on 11.1.2016 and on 13.1.2016 itself, the SHO submitted an application in the Court of Additional Junior Civil Judge for permitting conducting of DNA test on which impugned order was passed. The impugned order itself noted the following submission :
“The learned APP submitted that the investigation not yet completed and material evidence yet to be collected and also police custody is required to complete the investigation. Further contended that the DNA test in between the accused No.1 and mother of the accused No. 1 alongwith family members of the accused No.1 is most required to prove the blood relationship in between the accused No.1 and mother of parental relatives of the accused No.1. Hence, the learned APP request the Court to allow the petition for examine respondent/accused for DNA test.”
There can be no dispute to the right of police authorities to seek permission of the Court for conducting DNA test in an appropriate case. In the present case, FIR alleges obtaining false caste certificate by the appellant by changing his name and parentage. The order impugned itself notices that investigation is not yet completed and material evidence are yet to be collected. The police authorities without being satisfied on material collected or conducting substantial investigation have requested for DNA test which is nothing but a step towards roving and fishing enquiry on a person, his mother and brothers. It is a serious matter which should not be lightly to be resorted to without there being appropriate satisfaction for requirement of such test.
Hon’ble Ashok Bhushan and Navin Sinha, JJ., have held that it is the submission of learned Counsel for the respondent that section 53, Cr. P.C. empowers the police authorities to request a medical practitioner to conduct examination of a person. There cannot be any dispute to the provision empowering police authorities to make such a request. Present is a case where without carrying out any substantial investigation, the police authorities had jumped on the conclusion that DNA test should be obtained. It was too early to request for conduct of DNA test without carrying out substantial investigation by the police authorities. The Additional Junior Civil Judge also failed to notice that in the investigation conducted by the Investigation Authority no such materials have been brought on the basis of which it could have been opined that conducting DNA test is necessary for the appellant on his mother and two brothers.
We, thus, are of the view that the order passed by the Additional Junior Civil Judge was unsustainable. The High Court committed error in not setting aside the said order in exercise of its inherent jurisdiction under section 482, Cr. P.C.
Kathi David Raju v. State of A.P., 2019 (201) AIC 1 SC.
Arbitration Act, 1996 applicable to all arbitral proceedings
The Act of 1996 has come into force with effect from 22.8.1996. Section 85 of the Act of 1996 expressly repeals the provisions of the Arbitration Act, 1940. Thus, the Act of 1996 would be applicable to all arbitral proceedings which have commenced on or after the said Act came into force. Para 7-A of section 24 of the U.P. Amendment Act was an amendment to the First Schedule o Arbitration Act, 1940. This amendment was introduced by the U.P. Act No.57 of 1976. The provisions of the Arbitration Act, 1940 including the State amendment will have no application to the proceedings commenced after coming into force of the Act of 1996.
Section 31(7)(b) of the Act of 1996, before its amendment by Act 3 of 2016, which has come into force with effect from 23.10.2015, is relevant for the purpose of this case, empowers the Arbitrator to award pre-award and post-award interest.
Hon’ble Arun Mishra, S.A. Nazeer and M.R. Shah, JJ., have held that section 31(7)(b) of the Act of 1996 clearly mandates that, in the event the Arbitrator does not give any specific directions as regards the rate of interest on the amount awarded , such amount ‘shall’ carry interest @18% p.a. from the date of award till the date of payment. Since the Arbitration Act, 1940 has been repealed by way of section 85 of the Act of 1996, the Schedule to the Arbitration Act, including the State amendment, also stands repealed. The only exception is provided in sub-section (2)(a) of section 85 where a proceeding which had commenced when the Arbitration Act of 1940 was in force and continued even after coming into force of the Act of 1996, and all parties thereto agreed for application of the old Act of 1940. Therefore, the provisions of Arbitration Act, 1940 including the State amendment namely para 7-A of section 24 of U.P. Amendment Act will have no application to the proceedings commenced after coming into force of the Act of 1996.
In the instant case, though the agreement was earlier to the date of coming into force of the Act of 1996, the proceedings admittedly commenced on 27.10.1999 and were conducted in accordance with the Act of 1996. If that be so, para 7-A of section 24 of the U.P. Amendment Act has no application to the case at hand. Since the rate of interest granted by the Arbitrator is in accordance with section 31(7)(b) of the Act of 1996, the High Court and the District Judge were not justified in reducing the rate of interest by following the U.P. Amendment Act.
Shahi and Associates v. State of U.P., 2019 (201) AIC 3 SC
On failure to pay instalments, action to be taken
This appeal arises out of the order passed by the High Court of Punjab and Haryana in CWP No. 19200 of 2008 in and by which the High Court has set aside the order of eviction passed against the appellant and directing the amount of `40,000/- deposited by him be returned to the respondent so as to enable him to use the amount in paying the outstanding dues of lease of the commercial booth allotted to the respondent.
It is seen from the record that the allotment of commercial booth No. 254, Sector -20D, Chandigarh was made to the respondent on 26.12.1996. As per the terms and conditions of the allotment, the appellant being the lessee was required to deposit the balance 75% within.
In the present case, after the allotment, the respondent has paid only the initial payment and has not paid the first, second and third instalments and the ground rent which fell due and inspite of several opportunities, respondent has not paid the amount. When the respondent has consistently defaulted in payment of the premium/instalments, it is open to the competent authority to take action in accordance with the law. When the value is stated to be above `26 lakhs in the year 2015, the appellant Administration cannot be asked to part with the land at the same rate as in the year 1996. Without keeping in view of the default committed by the respondent, the High Court was not right in setting aside the order of cancellation of allotment and directing the respondent to receive the outstanding dues. Since the allotment was made way back in 1996, the respondent cannot insist upon the payment of the then market value in the year 1996.
As on the date of impugned order of the High Court dated 26.7.2012, the respondent has paid only an amount of `1, 02,000/-. As seen from the order of the Chief Administrator, Chandigarh dated 20.8.2008, despite the statement made before the Estate Officer that the respondent is ready to deposit the balance, the amount has not been paid. In compliance of the order of this Court dated 26.3.2019, the respondent is said to have deposited `1,50,000/- with the Chandigarh Administration. On direction from this Court, the learned Counsel appearing for the appellant has filed an affidavit stating that as on 31.8.2015, an amount of ` 1,91,114/- on account of ground rent and interest and a sum of ` 2,735/- on account of service tax are due. In the affidavit filed on 19.8.2015, it is stated that as on the date, as per the collector rate, current market value of the booth is `26,35,772/- plus `48,576/- (construction charges) and the total is `26,84,348/-. On further direction from this Court, the learned Counsel appearing for the Chandigarh Administration has submitted that as on 2010, the then current market value of the booth was `12,77,950/-.
Hon’ble Mrs R. Banumathiand A.S. Bapanna, JJ., have held that since the allotment of the respondent was of the year 1996 and considering the fact that the respondent has already deposited an amount of `1,02,000/-, it would not be appropriate to direct the respondent to pay the current market value of the booth. In order to maintain balance between the interest of the appellant Administration and also the interest of the respondent –allottee and in the interest of justice, it would be appropriate to adopt the value of the booth as in 2010. Considering the facts and circumstances of the case and also the fact that the respondent has already deposited an amount of `1,02,000/-, we deem it appropriate to direct the respondent to pay the then market value of the booth as of 2010 i.e., `12,77,950/- . The learned Counsel appearing for the respondent has submitted that the respondent has so far paid an amount of `2,72,969/- which is inclusive of the property tax. Since the respondent claims to have been in enjoyment of the booth over the years, the property tax paid by him cannot be adjusted against the amount payable by the respondent. The amount of `10,25,950- (that is `12,77,950/- less ` 2,52,000- amount already paid by the respondent) is payable by the respondent.
The respondent is granted six months time to pay the amount of `10,25,950/- (`12,77950/- less `2,52,000/-). On such deposit, the appellant –Administration shall confirm the allotment in favour of the respondent and execute the necessary documents in favour of the respondent at the expense of the respondent. On failure to deposit the amount within the period of six months, the appellant – Administration shall proceed with the respondent for eviction in accordance with.
Chandigarh Administration v. Hari Ram, 2019 (201) AIC SC