Shivnath Tripathi vs Registrar General High Court Of Delhi And Anr.

,,,,

Manmohan, J",,,,

The petition has been heard by way of video conferencing.,,,,

Present writ petition has been filed seeking directions to the respondents to modify answers to Question 7, Question 53, Question 78, and to delete",,,,

Question 134 of the Delhi Higher Judiciary Service Preliminary Examination (Objective Type) held on 2nd February 2020.,,,,

The impugned questions and the correct answers in bold are reproduced hereinbelow:-,,,,

Q.7. ‘A’ is married and is having one child. A’s husband ‘B’ does not live with her. ‘C’ on false promise to marry ‘A’,,,,

makes physical relationship with her and later refused to marry.,,,,

(1) ‘C’ has committee the offence of rape.,,,,

(2) ‘C’ has not committed the offence of rape.,,,,

(3) ‘C’ has committed the offence of sexual assault.,,,,

(4) ‘C’ has committed the offence under Section 494 of Indian Penal Code.,,,,

Q. 53 Company ‘A’ is the registered trademark holder of hte mark ‘VITE’ specifically in respect of pens. Company ‘B’ adopts,,,,

the name ‘VITE’ in respect of ink. The adoption by company ‘B’ constitutes,,,,

(1) Infringement,,,,

(2) Passing of,,,,

(3) Both infringement and Passing off,,,,

(4) Neither infringement nor passing offâ€​,,,,

“Q.78. While sentencing the accused in an offence under the Prevention of Corruption Act, 1998, the relevant criteria is",,,,

(1) Reformation,,,,

(2) Deterrence & Denunciation,,,,

(3) Both (1) & (2),,,,

(4) None of the aboveâ€​,,,,

“Q.134. A Decision rendered in a proceeding under Section 372, Indian Succession Act, 1925",,,,

(1) is summary in nature,,,,

(2) does not finally decide the rights of the parties,,,,

(3) does not bar the trial of the same question in any other proceedings between the same parties,,,,

(4) All of aboveâ€​,,,,

Petitioner states that for question no.78, the correct answer should be option “(3)â€. He submits that the Supreme Court in K. P. Singh vs. State",,,,

of Delhi [Criminal Appeal No. 1264 of 2015 (Arising Out of SLP (Crl.) No. 444 of 2015] while dealing with an offence punishable under Section 8 of,,,,

the Prevention of Corruption Act took note of ‘reformative’ aspect of punishment and consequently, according to him the punishment under",,,,

Prevention of Corruption Act is reformatory as well. He relies upon the judgment of the Supreme Court inB .G. Goswami vs. Delhi Administration,",,,,

(1974) 3 SCC 85.,,,,

Petitioner in person vehemently states that since there are two possible correct answers to question no. 78, the petitioner cannot be penalized. In",,,,

support of his submission, he relies upon the judgment of this Court in Sumit Kumar vs. High Court of Delhi and Anr. 2016 SCC OnLine Del 2818",,,,

wherein it has been held as under: -,,,,

“11. We have to apply the aforesaid standard or test when we examine the contentions of the two petitioners. In other words, only when we are",,,,

convinced that the answer key is “demonstrably wrong†in the opinion of a reasonable body of persons well-versed with the subject, will it be",,,,

permissible to exercise power of judicial review. Albeit, in cases where the answer key is indeed incorrect or more than one key to the answer could",,,,

be correct, the candidates should not be penalized for answers at variance with the key. The expression “demonstrably wrong†and the clapham",,,,

omnibus standard or test on the second aspect (i.e. more than one correct key) is noticeably the corner stone of the said principle. While applying the,,,,

said test, the Court should keep in mind that the answer key should be presumed as correct and should not be treated as incorrect on mere doubt.â€​",,,,

He further states that for question no.7, the correct answer should be option “(1)â€. He submits that the question of rape or no rape cannot be",,,,

decided on the given facts of the question as there may be different outcome of the case depending on age, income, economic status, demographic",,,,

status, social status or education of a woman. In support of his submission, he relies upon the judgments of the Supreme Court in Anurag Soni v. State",,,,

of Chhatisgarh, (2019) 13 SCC 1 and Pramod Suryabhyan Pawar v. State of Maharashtra & Anr., (2019) 9 SCC 608.",,,,

As far as question no.53 is concerned, he states that the correct answer should be “(1)â€, as mere registration of trade mark does not entitle a",,,,

person to a remedy of passing off as it is not stated in the Question that plaintiff company had any reputation or goodwill.,,,,

Sl. No.,Agenda,Minutes,,

,"T o consider the comments of

Examiners in respect of 04

questions challenged by Mr.

Shivnath Tripathi in W.P. (C.) No.

7346/2020 titled “Shivnath

Tripathi vs. The Registrar General

High Court of Delhi & Anr.â€​","The Committee has gone through

the Answer keys and also perused

the comments of the Examiners in

respect of all the four questions

challenged by the petitioner in the

,writ petition. The view of the

Committee is as under:-

Q.7. ‘A’ is married and is

having one child. A’s husband

‘B’ does not live with her.

‘C’ on false promise to

marry ‘A’ makes physical

relationship with her and later

refused to marry.

(1) ‘C’ has committee the

offence of rape.

(2) ‘C’ has not committed

the offence of rape.

(3) ‘C’ has committed the

offence of sexual assault.

(4) ‘C’ has committed the

offence under Section 494 of

Indian Penal Code.

Decision

A s per answer key, the correct

answer is (2). The Committee is of

the opinion that this is the correct

option.

Reason

T h e prosecutrix is only

‘separated’ and not

‘divorced’ and an

inducement of marriage can only

be made to an unmarried or

divorced person. Here the

prosecutrix still maintains her

status as a married person.

This follows from the decision of

Supreme Court in Prashant Bhart

v. State (NCT of Delhi) reported as

(2013) 9 SCC 293, where it was

held as under:

“17 ...It is apparent from

irrefutable evidence that during

the dates under reference for a

period of more than one year and

eight months thereafter, she had

remained married to Lalji Porwal.

In such a fact situation, the

assertion made by the",,

,,,,

,,,,

,,,"complainant/prosecutrix, that the

appellant-accused had physical

relations with her, on the

assurance that he would marry

her, is per se false and as such,

unacceptable. She, more than

anybody else, was clearly aware of

that fact that she had a subsisting

valid marriage with Lalji Porwal.

Accordingly, there was no question

of anyone being in a position to

induce her into a physical

relationship under an assurance of

marriage...

The decisions of Anurag Soni v.

State of Chhatisgarh reported as",.

,,,"(2019) 13 SCC 1 and Pramod

Suryabhyan Pawar v. State of",

,,,"Maharashtra & Anr.,",

,,,(1)Infringement reported as (2019),

,,,"9 SCC 608 are not applicable in

this case as the issue of

‘promise to marry’ in

relation to a ‘subsisting

marriage’ was not before the

court.

“Q. 53 Company ‘A’ is

the registered trademark holder of

the mark ‘VITE’

specifically in respect of pens.

Company ‘B’ adopts the

name ‘VITE’ in respect of

ink. The adoption by company

‘B’ constitutes

(1) Infringement

(2) Passing of

(3) Both infringement and Passing

off

( 4 ) Neither infringement nor

passing offâ€​

Decision

A s per answer key, the correct

answer is (3). The Committee is of

the opinion that this is the correct

option. The reasoning for the same

is given below.

Reasons

The registered trademark of the

company is ‘VITE’ for Pens

Under Section 29(2)(a) of the

Trade Marks Act, 1999, if the

mark used by B is identical to the

registered trademark and the

goods and services are similar,

then the same could constitute

infringement. Pens and ink are

similar goods as these are cognate

and allied. They are sold via the

same trade channels and the class

of customers is also identical. The

use by B for mark ‘VITE’

for ink would also constitute

passing off of A’s goods as

those of B. Use by B of the mark

‘VITE’ could cause damage

to A’s reputation as also

A’s business and goodwill. The",

,,,,

,,,,

,,,"various preconditions for passing

off would also be satisfied in terms

o f the judgment in Cadila

Healthcare Ltd v. Cadila

Pharmaceuticals Ltd., 2001 PTC

300(SC) and in several other

decisions both of the Supreme

Court and the High Court.

“Q.78. While sentencing the

accused in an offence under the

Prevention of Corruption Act,

1998, the relevant criteria is

(1) Reformation

(2) Deterrence & Denunciation

(3) Both (1) & (2)

(4) None of the aboveâ€​

Decision

A s per answer key, the correct

answer is (2). The Committee is of

the opinion that this is the correct

option.

Reasons

In Shanti Lal Meena v. State of

(NCT of Delhi) reported as (2015)

6 SCC 185, where in a case under

POC Act, after considering the

principles of sentencing policy and

past precedents, the Supreme

Court (Three Judge Bench) held as

under:

“20. As far as punishment for

offences under the PC Act is

concerned, we do not think that

there is any serious scope for

reforming the convicted public

servant. The moment he is

convicted, he loses his job. Hence,

there is no significance to the

theory of reformation of his

conduct in public service. The only

relevant object of punishment in

such cases is denunciation and

deterrence. That is the reason

Parliament has restricted the

judicial discretion in imposing

punishment.â€​

So far as decision in K.P. Singh v.

State (NCT of Delhi) reported as

(2015) 15 SCC 497 (Two Judge

Bench) is concerned, although the

view of V. Gopala Gowda, J. does

not refer to sentencing policy but

the concurring view of T.S.

Thakur, J. refers to it in following

words:

“10. Determining the adequacy

of sentence to be awarded in a

given case is not an easy task, just

as evolving a uniform sentencing

policy is a tough call. That is

because the quantum of sentence

that may be awarded depends

upon a variety of factors including

mitigating circumstance peculiar to

a given case. The Courts generally",

,,,,

,,,,

,,,"enjoy considerable amount of

discretion in the matter of

determining the quantum of

sentence. In doing so, the courts

are influenced in varying degrees

by the reformative deterrent and

punitive aspects of punishment,

delay in the conclusion of the trial

and legal proceedings, the age of

the accused, his physical/health

condition, the nature of the

offence, the weapon used and in

the cases of illegal gratification

the amount of bribe, loss of job

and family obligations of accused

are also some of the

considerations that weigh heavily

with the Courts while determining

the sentence to be awarded. The

Courts have not attempted to

exhaustively enumerate the

considerations that go into

determination of the quantum of

sentence not have the Courts

attempted to lay down the weight

that each one of these

considerations carry. That is

because any such exercise is

neither easy nor advisable given

the myriad situations in which the

question may fall for

determination. Broadly speaking,

the courts have recognised the

factors mentioned earlier as being

relevant to the question of

determining the sentence.

Decisions of this Court on the

subject are a legion. Reference to

some only should, however,

suffice.â€​

The above is a generalised view of

the parameters involved in award

of sentence in a criminal case. The

sentence was not reduced on the

aspect of reformation but on other

aspects including period of trial,

bribe amount and undergone

sentence.

The decision in B.G. Goswami v.

Delhi Administration reported as

(1974) 3 SCC 85 was again a

decision of a “Two Judge

bench’.

“Q.134. A Decision rendered in

a proceeding under Section 372,

Indian Succession Act, 1925

(1) is summary in nature

(2) does not finally decide the

rights of the parties

(3) does not bar the trial of the

same question in any other

proceedings between the same

parties

(4) All of the aboveâ€​

Decision

As per the answer key, the correct

answer is (4).The Committee is of

the opinion that this is the correct",

,,,,

,,,,

,,,"option. The reasoning for the same

is set out below:

Reasons

Proceedings under Section 372 of

the Indian Succession Act, 1925

for grant of succession certificate

is not for the purpose of

adjudication of any claims

between the legal heirs. Such

application is made under Section

A succession certificate

cannot be granted in respect of

any debt or security for which

letters of administration or probate

is required. Under Section 373,

the proceedings are summary in

nature. If there are any questions

of fact and law, which are

intricate and difficult to determine,

the District Judge only takes a

prima facie view as to which

person has the best title. Since the

proceedings are summary in

nature, Section 387 specifically

stipulates that there would be no

bar to conduct a trial on the same

question in any suit or

proceedings between the same

parties. Thus, the correct answer is

(4) i.e. All of the above.

Case Law

Section 372-Proceedings for grant

of Succession Certificate-Grant of

certificate of any decision made in

such proceedings will not bar any

party to the proceeding to raise

same issue in a subsequent suit.

Madhvi Amma Bhawani Amma

and Ors. Vs. Kunjikutty Pilla

Meenakshi Pillai and Ors C.A. No

1544 of 1990 Decided On:

27.04.2000, paras 13, 16, 19]

This sub-section [Section 373,

Indian Succession Act, 1925]

reveals two things, first

adjudication is in a summary

proceedings and secondly if the

question of law and fact are

intricate or difficult, it could still

grant the said certificate based on

his prima facie title. In other words

the grant of certificate under it is

only a determination of prima

facie title. This as a necessary

corollary confirms that it is not a

final decision between the parties.

So, it cannot be construed that

mere grant of such certificate or a

decision in such proceedings

would constitute to be a decision

on an issue finally decided

between the parties.

This leaves no room for doubt.

Thus any adjudication made under

Part X of this Act which includes

Section 373 does not bar the same

question being raised between the

same parties in any subsequent

suit or proceedings.","i

.

,,,,

,,,,

,,"So we have no doubt to hold that

any decision made in the

proceeding under Section 372, for

the grant of Succession Certificate

under the Indian Succession Act,

would not bar any party to the

said proceedings to raise the same

issue in a subsequent suit.

[Joginder Pal Vs. Indian Red

Cross Society and Ors. C.A. No

5664 of 2000 (Arising out of SLP

(C) No. 17208 of 1999) Decided

On: 29.09.2000]

hese Sections [373, 383 (e), 387,

Indian Succession Act, 1925]

make it clear that the proceedings

for grant of succession certificate

are summary in nature and that no

rights are finally decided in such

proceedings. Section 387 puts the

matter beyond any doubt. It

categorically provides that no

decision under Part X upon any

question of right between the

parties shall be held to bar the

trial of the same question in any

suit or any other proceeding

between the same parties. Thus

Section 387 permits the filing of a

suit or other proceeding even

though a succession certificate

might have been granted.

I n view of the above, the

Committee is of the opinion that all

the aforesaid four questions have

been correctly framed and answer

keys provided thereto are also

correct.

Registry is directed to place these

Minutes on record before the

Court.",,

(supra) without actually following the standard/test of judicial review discussed thereunder.,,,,

The Division Bench of this Court in the aforesaid judgment, after discussing several judgments of the Supreme Court on the same matter, held that",,,,

a candidate could not be penalized for answers at variance with the key only if the answer key was proven to be incorrect beyond doubt. However, it",,,,

is relevant to note that according to the said judgment, an answer key cannot be disregarded as being incorrect merely on a doubt. The Court had",,,,

reiterated the settled law that there is always a presumption of correctness regarding the answer key and it may be subject to judicial review only,,,,

when it is “demonstrably wrong†i.e. it must be such as no reasonable body of men well-versed in the particular subject would regard it as,,,,

correct.,,,,

In another case being High Court of Tripura vs. Tirtha Sarathi Mukherjee, (2019) 16 SCC 663 the Supreme Court has held as under:-",,,,

“23. ....... Even in the judgment of this Court in Ran Vijay Singh v. Rahul Singh (2018) 2 SCC 357 which according to the first respondent forms,,,,

the basis of the High Court's interference though does not expressly stated so, what the Court has laid down is that the Court may permit re-valuation",,,,

inter alia only if it is demonstrated very clearly without any inferential process of reasoning or by a process of rationalisation and only in rare or,,,,

exceptional cases on the commission of material error. ......â€​,,,,

(emphasis supplied),,,,

In the present case, the Examination-cum-Judicial Education and Training Programme Committee has considered the queries raised by the",,,,

petitioner at length and given detailed reasons as to why the impugned answer key is the single, objective, correct answer of the four options provided",,,,

in the exam. In our view, there is no other answer that can possibly be “correctâ€​.",,,,

This Court is also in complete agreement with the opinion and reasons given by the Committee in its minutes of meeting dated 19th November,",,,,

2020. The Committee has rightly concluded that the impugned questions have been correctly framed and answer keys provided thereto are also,,,,

correct.,,,,

The petitioner herein has based his arguments on mere conjectures and has failed to elucidate even a single valid ground to challenge the reasoning,,,,

given by the Committee. Therefore, the petitioner has failed to demonstrate that the impugned questions and answer keys are inherently incorrect or",,,,

manifest injustice has occurred in the present case.,,,,

Keeping in view the aforesaid factual and legal scenario, this Court finds no ground to interfere with the decision of the Committee as there is no",,,,

evidence of commission of any material error in the present case.,,,,

Consequently, the present writ petition, being bereft of merit, is dismissed.",,,,

The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail.,,,,