List of Current Affairs

Source: Supreme Court 

Why in News?

• A bench of Chief Justice of India (CJI) DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra held that when a person is in custody for one offence nothing in CrPC precludes him from applying for anticipatory bail with respect to any other offence.           
• The Supreme Court held this in the case of Dhanraj Aswani v. Amar S. Mulchandani & Anr. 

What is the Background of Dhanraj Aswani v. S. Mulchandani & Anr. Case? 

• The Respondent was in custody and came to be arrested for offence in connection with ECIR No. 10 of 2021. 
• While in custody the respondent apprehended arrest in connection with CR No. 806 of 2019. 
• In such circumstances the Respondent pleaded for anticipatory bail.   
• The High Court in this case held that although the respondent was in custody with respect to one case that would not preclude him from applying for anticipatory bail with respect to any other case.  
• An appeal was filed against the above order. The issue for consideration of the Court is as follows: 
  • Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case? 

What were the Court’s Observations? 

• The Court first discussed the concept of anticipatory bail in detail. 
• The question that the Court first answered was whether a person already in custody can be arrested. 
• There are two ways by which a person already in custody may be arrested: 
  • No sooner than he is released from custody in connection with the first case, the police officer can arrest and take him into custody in relation to a different case. 
  • Even before he is set free from the custody in the first case, the police officer investigating the other offence can formally arrest him and thereafter obtain a Prisoner Transit Warrant (“P.T. Warrant”) under Section 267 of the CrPC from the jurisdictional magistrate for the other offence, and thereafter, on production before the magistrate, pray for remand; or 
  • Instead of effecting formal arrest, the investigating officer can make an application before the jurisdictional magistrate seeking a P.T. Warrant for the production of the accused from prison.  When the accused is produced before the Court in pursuance of P.T. Warrant the investigating officer will be at liberty to make a request for remand of the accused. 
• Thus, it can be said that a person can be arrested even when he is already in custody for some other offence.  
• Therefore, as a logical extension to the above if the accused can be arrested when he is in custody, he cannot be precluded from applying for anticipatory bail while he is in custody. 
• Thus, the Court reached the following conclusions: 
  • An accused can seek anticipatory bail for an offence only when he is not arrested in relation to that offence. 
  • No restriction can be read in Section 438 of CrPC for grant of anticipatory bail in relation to an offence when he is in custody for any other offence. The only restriction on the power of grant of anticipatory bail can be seen in Section 438 (4) and in some other statutes like the Act 1989 etc. 
  • When a person in custody apprehends arrest in a different offence (subsequent offence), all the rights conferred on the accused in relation to the subsequent offence are independently protected. 
  • The Court held that the right of an accused to protect his personal liberty under Article 21 of the Constitution with the aid of Section 438 of CrPC cannot be thwarted without a valid procedure established by law. 
  • The only pre-condition for exercise of power under Section 438 of CrPC is that the person should have a “reason to believe that he may arrested on an accusation of committing a non-bailable offence”.  

How Did the Concept of Anticipatory Bail Evolve?

What are the Changes Introduced in Section 482 of BNSS? 

• The factors to be considered while granting anticipatory bail have been omitted. 
• Clauses (1A) (1B) of Section 438 of CrPC have been omitted in BNSS. 
• Clause (2), (3), (4) of Section 438 of CrPC have been retained in the same form. 

Why are the Landmark Judgments on Anticipatory Bail? 

• Gurbaksh Singh Sibbia v. State of Punjab (1980) 
  • The applicant must show the “reason to believe” that he may be arrested. Specific events and facts must be disclosed to enable the Court to judge the reasonableness of belief or likelihood of arrest. 
  • The High Court or Court of Session must apply it’s mind to the question of anticipatory bail and must not leave it to the discretion of Magistrate under Section 437 of CrPC. 
  • Filing of First Information Report is not a condition precedent. 
  • Anticipatory bail can be granted so long as the person is not arrested in connection with that case/offence. 
  • When the person has been arrested in respect of an offence, he cannot be granted anticipatory bail for that offence. 
  • The normal rule is not to limit the operation of order in relation to period of time. 
• Sushila Aggarwal v. State (NCT of Delhi) (2020)  
  • An application for anticipatory bail should be based on concrete facts and not vague allegations. (FIR filing is not a condition precedent). 
  • It is advisable to issue notice on the anticipatory bail application to teh Public Prosecutor. 
  • Nothing in Section 438 of the CrPC compels or obliges courts to impose conditions limiting relief in terms of time. 
  • Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail or not. 
  • Once granted, anticipatory bail can continue after the filing of the chargesheet till the end of the trial. 
  • It should not be a “blanket order” and must be confined to a specific incident. 
  • The correctness of an order granting anticipatory can be considered by the Appellate or Superior Court.

Source: Supreme Court 

Why in News? 

Recently, the Supreme Court in the matter of Abhishek Banerjee and Anr. v. Directorate of Enforcement (2024) has held that matters related to summoning of person provisions of Prevention of Money Laundering Act, 2002 (PMLA) shall prevail over Code of Criminal Procedure, 1973 (CrPC). 

What was the Background of the Abhishek Banerjee and Anr. V. Directorate of Enforcement Case? 

• In the present case, First Information Report (FIR) was registered by the Central Bureau of Investigation (CBI), Respondent, for the offences under Section 120B and 409 of Indian Penal Code, 1860 and Section 13(2) read with Section  13(1)(a) of the PMLA. 
• It was alleged that alleged illegal excavation and theft of Coal taking place in the leasehold areas of Eastern Coalfields Limited (ECL) with the active connivance of certain employees of ECL. 
• Several summonses were served by the respondent (Enforcement Directorate) on the appellants to mark their personal presence along with the documents, but both the appellants did not comply with the summons. 
• The respondent replied to these summonses by requesting four weeks time to collect and collate the documents sought. The respondent was again summoned on the same day of reply which was challenged by him under Criminal Writ Petition before the Delhi High Court. 
• The appellant argued that the respondent only has the substantive power to issue summons under Section 50 of PMLA and the procedural powers to be exercised only in accordance with the provisions of CrPC. 
• The appellant also argued that the procedure of summoning was in violation of Article 20 and Article 21 of the constitution. 
• The respondent filed a Complaint against the Appellant No.2 in the Court of Chief Metropolitan Magistrate (CMM) under Section 190 (1)(a) read with Section 200 CrPC read with Section 63(4) PMLA, alleging the commission of the offence under Section 174 of IPC for non-compliance of the Summons. 
• Appellant No.2 sought an exemption application from personal appearances by presenting virtually before the court on the date of hearing.  
• The Learned CMM passed an Order allowing the exemption application for that day only and directed Appellant No.2 to remain personally present before the Court for the further proceedings. 
• The said order was also challenged by Appellant No.2 before the Delhi High Court. 
• It was argued by the Appellant No.2 that she cannot be compelled to make the physical presence in Delhi but only in Kolkata as Delhi is beyond the territorial limits of the place of cause of action. 
• The Delhi High Court dismissed both the appeals filed by the appellants. 
• Both the appellants then preferred an appeal before the Supreme Court. 

What were the Court’s Observations? 

• The Supreme Court observed that: 
  • Provisions of Section 65 of PMLA states that PMLA shall prevail when there is any inconsistency with the provisions of CrPC and PMLA. 
  • Provisions of Section 71 states that PMLA shall have an overriding effect over all other laws. 
  • Section 4(2) and Section 5 of CrPC were also considered to check the applicability of PMLA over CrPC. 
  • Section 160 of CrPC was also taken into consideration which states that the provisions of CrPC not to be applied on all the aspects where information is to be derived relating to the matters of money laundering. 
• The Supreme Court further observed that there are inconsistencies between Section 50 of PMLA and Section 160 of CrPC as: 
  • Section 50 of PMLA is a gender-neutral provision while Section 160 of CrPC is not. 
  • Section 50 of PMLA deals with the investigation while Section 160 of CrPC deals with only inquiry. 
  • Section 50 of PMLA cannot be hit by Article 20(3) of the Constitution while the evidence collected under Section 160 of CrPC cannot be produced as a proof but only for special purpose when read with Section 162 of CrPC. 
  • The Supreme Court also considered the PMLA Rules, 2005 regarding summoning of the person. 
• The Supreme Court also noted that as per Section 50 of PMLA : 
  • Clause (3) all the persons so summoned shall be bound to attend in person or through authorized agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required. 
  • Clause (4) every proceeding shall be a judicial proceeding. 
• The Supreme Court also noted that as per Section 63 of PMLA: 
  • Clause (4) states that a person who intentionally disobeys any direction issued under section 50 shall also be liable to proceed against under section 174 of IPC. 
  • Considering the above observations made by the Supreme Court, the Court dismissed the appeals filed by the appellants. 

What is Section 50 of PMLA? 

• Powers of authorities regarding summons, production of documents and to give evidence, etc. 
  • It details the powers of authorities in issuing summons, producing documents, and giving evidence.  
  • It equates the director's powers to those of a civil court under the Code of Civil Procedure, 1908, for matters like discovery and inspection, enforcing attendance, compelling production of documents, and issuing commissions. 
    • Section 50(2) empowers the Director and other officers to summon any person during any investigation or proceedings under the PMLA. Rule 2(p) and Rule 11 of PML Rules, 2005 further specify these powers. 
    • Section 50(3) mandates that all summoned persons must attend in person or through authorized agents, state the truth upon examination, and produce required documents. 
    • Section 50(4) deems every proceeding under Section 50(2) and Section 50(3) as a judicial proceeding as per Sections 193 and 228 of the Indian Penal Code, 1860. 
    • Section 50(5) allows any officer referred to in Section 50(2) to impound and retain any records produced before him in any proceedings under Act 15 of 2003. There are safeguards in place to prevent misuse of this power.

What is the Case Referred in the Abhishek Banerjee and Anr. V. Directorate of Enforcement Case? 

• Vijay Madanlal Choudhary v. Union of India (2022):  
  • In this case the Supreme Court held that power of arrest, attachment and search and seizure are conferred on the Enforcement Directorate. 
  • It was held that Section 160 of CrPC was also taken into consideration which states that the provisions of CrPC not to be applied on all the aspects where information is to be derived relating to the matters of money laundering. 

Source: Delhi High Court  

Why in News? 

The Delhi High Court has ruled that an order under Section 9 of the Arbitration and Conciliation Act, 1996, based on a settlement agreement, is enforceable as a decree under Section 36 of the Code of Civil Procedure, 1908 (CPC). This decision clarifies that such orders can be executed like decrees, ensuring they hold the same legal weight for enforcement purposes. 

• Justice C. Hari Shankar held in the matter of Anand Gupta & Anr. v. M/S. Almond Infrabuild Private Limited & Anr (2024).    

What was the Background of Anand Gupta & Anr. v. M/S. Almond Infrabuild Private Limited & Anr. ? 

• In 2014, Almond Infrabuild Private Limited & Anr. (Respondents) launched a Group Housing Residential Project called "ATS Tourmaline." 
• The project operated under a guaranteed buyback and subvention scheme, offering investors residential units with an option to exit after 33 to 36 months. 
• The buyback terms stipulated that Respondent 1 would repurchase units at ₹1,500 per sq. ft. above the initial booking price of ₹8,000 per sq. ft. 
• Anand Gupta and Anuradha Vinod Gupta (Petitioners) invested in the project and executed a Memorandum of Understanding (MOU) with Respondent 1 on 26^th  March 2014. 
• Clause 8 of the MOU detailed the buyback and subvention scheme, including provisions for interest payments and indemnification. 
• On 15th December 2016, Petitioner 1 expressed intent to exercise the buyback option, requesting confirmation and payment by March 2017. 
• Respondent 1 initially confirmed the binding nature of the MOU but later suggested alternative options or requested more time for compliance. 
• As the payment deadline of 1thApril 2018 approached, the Petitioners sought information about the payment schedule but received no response. 
• By January 2019, the Respondents had defaulted on EMI payments to the bank. 
• On 1 April 2019, the Petitioners sent a detailed legal notice alleging fraud and default on buyback obligations, demanding payment of the buyback amount, accrued interest, and repayment of outstanding bank loans. 
• Due to non-compliance with their demands, the Petitioners filed an application under Section 96 of the Arbitration and Conciliation Act, 1996, as per the dispute resolution clause in the MOU. 
• The matter was subsequently settled through mediation facilitated by the Delhi High Court Mediation and Conciliation Centre, resulting in Settlement Agreements. 
• The current petitions before the Delhi High Court seek enforcement of these Settlement Agreements, which contain identical terms for resolving the disputes between the parties. 

What were the Court’s Observations? 

• The High Court, relying on the precedent set in Angle Infrastructure Pvt Ltd v Ashok Manchanda, held that an order based on a settlement agreement reached through mediation, while not an award or decree per se, is executable under Section 36 of the CPC in the same manner as a decree. 
• The Court rejected the Respondents' objection to the execution petition's maintainability, affirming that the principle established in Angle Infrastructure remains applicable despite the enactment of the Mediation Act, 2023. 
• Addressing the issue of territorial jurisdiction, the Court distinguished between the execution of arbitral awards and court orders, holding that the execution petition was maintainable before the High Court as it was the court that passed the original order. 
• The Court found the terms of the Settlement Agreement to be clear and unambiguous, rejecting the Respondents' argument that their obligations were contingent on the sale of the apartment. 
• Given the Respondents' failure to adhere to their financial obligations under the Settlement Agreement, the Court held them jointly and severally liable for the total settled amount along with interest at 18% per annum. 
• The Court ordered the Respondents to deposit the entire amounts payable to the petitioners within two weeks and attached the agricultural properties offered as collateral until full payment of dues. 
• The Court applied the same reasoning and conclusions to multiple related petitions with identical issues of fact and law, allowing them in terms of the judgment rendered in OMP (Enf) (Comm) 148/2021. 

What is Section 9 of the Arbitration and Conciliation Act, 1996? 

• Timing of Application:  
  • Section 9 allows a party to apply for interim measures before the commencement of arbitral proceedings, during the proceedings, or after the arbitral award is made but before its enforcement under Section 36. 
• Jurisdiction:  
  • The application for interim measures must be made to a court, which has the power to grant such measures as it deems appropriate. 
• Types of Interim Measures:  
  • The court may grant various types of interim measures, including:  
    • Appointing a guardian for a minor or person of unsound mind for arbitration purposes. 
    • Preserving, providing interim custody, or ordering the sale of goods that are the subject matter of the arbitration agreement. 
    • Securing the amount in dispute in the arbitration.  
    • Detaining, preserving, or inspecting any property or thing that is the subject matter of the dispute.  
    • Authorizing entry upon land or building for inspection or evidence gathering purposes.  
    • Granting interim injunctions or appointing receivers.  
    • Any other interim measure of protection that the court considers just and convenient. 
• Court's Powers:  
  • The court has the same powers for making orders under Section 9 as it does for any proceedings before it. 
• Time Limit for Commencing Arbitration: 
  •  If the court grants an interim measure before the commencement of arbitral proceedings, the arbitration must begin within 90 days from the date of the order, or within such further time as the court may determine. 
• Restriction on Court's Intervention:  
  • Once the arbitral tribunal is constituted, the court shall not entertain an application under Section 9, unless it finds that the remedy provided under Section 17 (interim measures ordered by arbitral tribunal) would not be efficacious. 
• Scope of Interim Measures:  
  • The court has broad discretion to grant any interim measure it deems just and convenient, allowing for flexibility in addressing the specific needs of each case.