10 February 2025 - Legal Updates

1. Non-Registration of FIR: Orissa High Court Clarifies BNSS Procedure via Magistrate to be Followed

Case Title: Swarnalata Jena vs. State of Odisha & Ors.

Date of Order: 3rd February, 2025

Coram: Hon’ble Mr. Justice Gourishankar Satapathy 

The Orissa High Court has recently ruled that a Magistrate must hear submissions of the police officer when they refuse to register a First Information Report (FIR). This Court mandates that the Magistrate consider the police officer’s reasons for refusal, along with the complainant’s affidavit to the Superintendent of Police, and ensure a proper inquiry before ordering an investigation.

The ruling came in response to a petition from an individual whose FIR was not registered, leading her to directly approach the High Court instead of the judicial Magistrate.

Law Applicable in case of non-registration of FIR

The Court underscored that the proper legal recourse for non-registration of an FIR is through the Magistrate, as provided under Chapter XIII of the Bharatiya Nagarik Suraksha Sanhita.

• Under Section 173(4) of BNSS, if an officer in charge of a police station refuses to record information about a potential crime, the person aggrieved by such refusal can send the details in writing by post to the Superintendent of Police. If the Superintendent of Police is satisfied that the information indicates a cognizable offense, he shall either investigate the case himself or order a subordinate police officer to investigate the matter, following the procedures outlined in BNSS. If no action is taken then the aggrieved person can apply to a Magistrate for further action.
• Section 175(3) of BNSS, empowers the Magistrate to order an investigation on the application of the aggrieved persons whose complaint has been refused by the police to register it as an FIR, provided the aggrieved persons satisfies the Magistrate to direct for an investigation.

No writs for non-registration of FIR

The High Court also stated that the aggrieved persons should follow the legal route through Judicial Magistrate and shall not directly reach the High Court in matters relating to non-registration of FIRs.

The Court referred to the Supreme Court’s ruling in Sakiri Vasu vs. State of Uttar Pradesh & Ors., which advises High Courts to limit the use of writ petitions or petitions under Section 482 Cr.P.C. when an FIR hasn’t been registered, or when the police fail to properly investigate a case after the FIR has been filed. The Supreme Court had emphasized that individuals should seek remedies through the Magistrate under Section 156(3) of the Criminal Procedure Code (Cr.P.C.) [Section 175(3) of BNSS] instead of directly approaching the High Court.

Mandatory Process of Law

After reviewing established legal principles, the Court considered the Supreme Court’s recent judgment in Om Prakash Ambadkar vs. State of Maharashtra & Ors., 2025. In this case, the Supreme Court highlighted key differences between Section 156(3) of the Cr.P.C. and Section 175(3) of the BNSS. The Court outlined three major changes introduced by Section 175(3) of the BNSS2:

1. The requirement of making an application to the Superintendent of Police upon refusal by the officer in charge of a police station to lodge the FIR has been made mandatory, and the applicant making an application under Section 175(3) is required to furnish a copy of the application made to the Superintendent of Police under Section 173(4), supported by an affidavit, while making the application to the Magistrate under Section 175(3).
2. The Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR.
3. The Magistrate is required to consider the submissions of the officer in charge of the police station as regards the refusal to register an FIR before issuing any directions under Section 175(3).

Conclusion

Following the preceding legal principles, the High Court emphasized that a Magistrate must consider the concerned police officer’s arguments, and apply judicial reasoning when evaluating both the complaint and the police officer’s submission. This ensures that any order directing an investigation is well-reasoned and justified.

2. Employee Disabled During Service Entitled To Continued Salary, Benefits, Supernumerary Post, And Interest On Withheld Dues

Case Title : Narinder Kaur vs. State of Punjab and others

Date of order: 30th January, 2025

Coram: Hon’ble Mr. Justice Aman Chaudhary

In a significant ruling, the Punjab & Haryana High Court addressed the rights of employees who acquire a disability during their service. The Court held that such employees are entitled to continued salary, benefits, and placement in a supernumerary post, ensuring that they are not deprived of their entitlements. Furthermore, the Court emphasized the importance of compensating employees for withheld dues by directing the payment of interest on these amounts.

Factual Background of the Matter

• The petitioner was appointed as an E.T.T. Teacher at Govt. Primary School, Sodhi Nagar, Ferozepur, on September 11, 2016. On March 8, 2017, she met with an accident while riding an Activa en route to school, which resulted in her inability to resume work. She was left 90% permanently disabled, with her lower body, legs, arms, and hands no longer functioning, rendering her unable to even sign the certificate dated January 22, 2019, issued by the Civil Hospital, Ferozepur; the certificate was instead thumb-marked. Despite this, her mental state remained unaffected.
• The petitioner’s financial condition was dire, and she was entirely dependent on her family as she was bedridden. She was on medical leave without pay since March 8, 2017, and this led to her probation period remaining incomplete. On December 27, 2021, the District Education Officer (SS), Ferozepur, wrote to the Director of the Education Department, recommending the employee’s case for the release of her salary, urging sympathetic consideration. The letter referenced instructions from a Government of India document stating that government employees who become incapable during service are entitled to financial benefits or salary. However, the request was denied by the respondents.
• In response to this denial, the employee filed a writ petition, seeking a directive to the respondents for the payment of her salary and all other applicable benefits from the date of her accident.

Contention of the Parties

The employee argued that she had acquired a disability during her service, leaving her in a dire financial situation and completely dependent on her family as she remained bedridden. In contrast, the respondent claimed that the monthly salary had been paid in relation to the claim from the date of the accident.

Findings of the Court

• The P&H High Court noted that employers must be sensitive to the hardships faced by employees who, unfortunately, meet with an accident. The Court emphasised that such situations should have been prevented by the State, as it is a welfare state. Additionally, the Court pointed out that while the respondents claimed the monthly salary was being paid, they failed to provide any justification for this action.
• The High Court referred to the case of Ram Kumar vs. State of Haryana and others, which involved similar circumstances. In that case, an employee working as a Multi Purpose Health Worker had suffered a road accident, resulting in a head injury and a coma. He was declared 100% disabled, yet no salary was paid to him. The Court ruled that the respondents were obligated to release all arrears of salary along with all consequential benefits.
• The High Court further referred to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which stipulates that any employee who acquires a disability during their service should be transferred to another post with the same pay scale and service benefits. If it is not possible to transfer the employee to another post, a supernumerary post should be created to ensure that the employee receives the same salary they were earning before becoming disabled, up to the age of superannuation.
• The Court also relied on the judgment of J.S. Cheema vs. State of Haryana, where the Coordinate Bench of the Punjab & Haryana High Court held that if any amount belonging to an employee had been withheld or used by the Department, the employee would be entitled to receive interest on the retained amount.

Disposing of the petition, the High Court concluded that the money which rightly belonged to the employee was in the custody of the State and was being used by it, therefore the employee will also be entitled to interest along with salary and all the consequential benefits.

3. Court Having Jurisdiction Over The Seat of Arbitration Entitled to Entertain Petition Under Section 34 Of The Arbitration Act

Case Title: M/s MECON Limited vs. M/s K.C.S. Pvt. Ltd.

Date of order: 4th February, 2025

Coram: Hon’ble Mr. Justice Sanjay Kumar Dwivedi 

The Jharkhand High Court reinforcing the importance of the “seat” in determining jurisdictional competence in arbitration matters, has affirmed that a petition under Section 34 of the Arbitration and Conciliation Act lies before the Court with jurisdiction over the “seat” of arbitration. This declaration clarifies the legal venue for challenging arbitral awards, anchoring it to the location designated for the arbitration proceedings. The ruling

Brief Facts of the Case

• A dispute arose between the petitioner and the opposite party, leading to the invocation of an arbitration clause.
• An award was passed, which was later challenged by the petitioner before the Commercial Court in Ranchi under Section 34 of the Arbitration Act. The opposite party contested the maintainability of the Section 34 petition, arguing that since the arbitrator had been appointed by the Orissa High Court, the Courts in Orissa should have jurisdiction to hear the petition, as per Section 42 of the Arbitration Act.
• After hearing both parties, the Commercial Court dismissed the Section 34 petition on the grounds of non-maintainability.

Contentions Raised by the Petitioner

• The petitioner argued that a Court exercising power under Section 11 of the Arbitration and Conciliation Act, 1996, cannot be considered a “Court” for the purposes of Section 42 of the Act. It was further contended that Section 42 has no relevance to applications filed under Section 11(6) of the Act, and that the mere invocation of Section 11(6) by the Orissa High Court cannot shift jurisdiction to the Orissa Courts.
• The petitioner also emphasised that the seat of arbitration, as expressly specified in the contract, is Ranchi. Therefore, under the Act, 1996, an application for setting aside the arbitral award is maintainable only before the Courts in Ranchi.
• The petitioner in support of his contention cited the Supreme Court’s ruling in Hindustan Construction Company Limited v. NHPC Limited & another (2020), where it was held that once the seat of arbitration is designated, it becomes an exclusive jurisdiction clause, meaning that only the Courts where the seat is located have jurisdiction over the proceedings.

Arguments Advanced by the Respondent

• The respondent argued that under Section 21 of the Act, 1996, proceedings commence from the date an application is made, and as such, Section 42 applies, attracting the jurisdiction of the Court where the application is filed.
• The respondent further pointed out that Section 2(1)(e) of the Act defines “Court,” and under Section 42, once an application is filed, that Court has exclusive jurisdiction over the arbitral proceedings. They contended that the learned Commercial Court had rightly passed its order based on this.
• Additionally, the respondent referred to the Division Bench’s direction from the Orissa High Court, which stipulated that arbitration proceedings were to take place at the Mediation Centre in Cuttack. However, due to the arbitrator’s inability to conduct proceedings in Orissa, the proceedings were held in Ranchi, leading to the conclusion that the Orissa Court had exclusive jurisdiction.

Observations Made by the High Court

• The Court initially addressed the issue of whether a writ petition under Articles 226/227 is maintainable in this case. It observed that while the power of writ is not to be exercised routinely, it can be invoked when a party is left without any remedy and no alternative options are available, as upheld by the Supreme Court in Bhaven Construction vs. Sardar Sarovar Narmada Nigam Ltd. (2022).
• In this case, the petitioner had withdrawn an appeal under Section 37 of the Act, meaning that no final order had been passed by the Court. Therefore, the writ petition was deemed maintainable, as the petitioner would suffer grave injustice if left without a remedy.
• On the merits of the case, the Court examined the arbitration clause and the proceedings before the Orissa High Court. It observed that the seat of arbitration was clearly designated as Ranchi, and the arbitration proceedings were also conducted there. The Court noted that under a combined reading of Sections 2(6) and 20 of the Act, if the parties fail to agree on the place of arbitration, they may authorize an entity to determine the venue. However, such a decision does not carry the character of adjudicating a dispute, nor does it constitute an award.
• The Court also cited the Supreme Court’s ruling in State of West Bengal vs. Associated Contractors, (2015), which clarified that under Section 2(1)(e) of the Act, an application under Section 11 is not considered a “Court” as defined by the Act. Similarly, in Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, (2022), the Supreme Court held that Section 42 does not apply to applications under Section 11(6), which must be made before a High Court unless the earlier application was also made there
• The Court further stated that just because an application for the appointment of an arbitrator under Section 11 was filed before the Orissa High Court, it does not mean the parties have agreed to surrender jurisdiction to the Orissa High Court. Referring to the Supreme Court’s decision in Indus Mobile Distribution Private Limited v. Datawind Innovations Pvt. Limited (2017), the Court highlighted that once the seat is designated, it becomes akin to an exclusive jurisdiction clause. In this case, the parties had consensually chosen Ranchi as the venue for arbitration, and once the seat is determined, the Court at that location holds jurisdiction over the arbitration proceedings.
• The Court further emphasized that merely because the Arbitrator was appointed by the Orissa High Court with the parties’ consent, it did not negate the jurisdiction of the Ranchi Court, especially since the Section 11 application was not decided by the Orissa High Court, as per the aforementioned judgments. Additionally, the Supreme Court in BGS SGS SOMA JV v. NHPC Limited (2020) clarified that when the place of arbitration is designated in the agreement as the “venue,” the term “venue” refers to the “seat” of the arbitration proceedings.
• Based on these observations, the Court set aside the impugned order and restored the petition under Section 34 of the Act. 

The Court at the outset addressed the argument whether writ under Article 226/227 is maintainable in the present case. The Court observed that although the power of writ is not to be exercised in a routine manner, it can be exercised when the party is remediless and there is no alternative remedy available with the party as held by the Supreme Court in Bhaven Construction v. Sardar Sarovar Narmada Nigam Ltd. (2022).

In the present case, an appeal under section 37 of the Act was withdrawn by the petitioner therefore it cannot be said that a final order came to be passed by the Court. Hence, the writ in such circumstances would be maintainable as grave injustice would be caused to the party if it is left remediless.

Coming to the merits of the case, the Court after pursuing the arbitration clause and proceedings before the Orissa High Court observed that the seat of arbitration is clearly at Ranchi and arbitration proceedings were also conducted at Ranchi.

The Court observed that on a conjoint reading of sections 2(6) and 20 of the Act, it becomes clear that if the parties do not agree on the place of arbitration, they may authorise an entity to determine the venue. However, such a decision would not partake the character of adjudication of a dispute so as to clothe it with the character of an award.

It also noted that the Supreme Court in State of West Bengal v. Associated Contractors,(2015) held that the purpose of the Court in light of Section 2(1)(e), an application under Section 11 is not a Court as defined under Section 2(1)(e).

Similarly, the Supreme Court in Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, 2022 held that ”section 42 cannot possibly have any application to an application under Section 11(6), which necessarily has to be made before a High Court, unless the earlier application was also made in a High Court.”

Based on the above, the Court said that just because an application under section 11 of the Act seeking appointment of the arbitrator was filed before the Orissa High Court, the parties cannot be said to have surrendered jurisdiction to the High Court of Orissa.

In Indus Mobile Distribution Private Limited v. Datawind Innovations Pvt. Limited,(2017) the Supreme Court held that the moment the seat is designated, it is akin to an exclusive jurisdiction clause.

The Court observed that ”in the present case, the parties with consent have chosen further venue at Ranchi and at the moment the seat is determined, the Court is having jurisdiction of that seat and it will regulate the arbitration proceeding.”

It further observed that once the seat is chosen by the parties in terms of the contract/agreement, the Court at that place will have jurisdiction.Merely because with consent of the parties, the Arbitrator has been appointed by the Hon’ble Orissa High Court, that cannot be a ground that Ranchi Court is not having jurisdiction as Section 11 application is not decided by the Court, as has been held in the aforesaid judgments.

The Court noted that the Supreme Court in BGS SGS SOMA JV v. NHPC Limited,(2020) held that whenever any designation of a place of arbitration is mentioned in the agreement as an arbitration clause being the “venue” of the arbitration proceedings, the expression “arbitration proceedings” would make it clear that the “venue” is really the “seat” of the arbitral proceedings.

Accordingly, the impugned order was set aside and the petition under section 34 of the Act was restored.