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3. Heard finally by consent of the learned Counsel for both
the parties.
4. Being aggrieved by the judgment passed by Railway
Claims Tribunal, Member (Judicial) and Member (Technical)
Nagpur Bench, Nagpur, in Claim Application No. OA
(Iiu)/NGP/2011/335 on 23/08/2013 dismissing the claim of the
appellants for Rs.8,00,000/- along with interest form the date of
5. The original applicant has filed the Claim Application on
account of death of her father namely Shri Suraj Ganvir in an
untoward incident. On 14/04/2011 deceased was travelling from
Gondia to Wadsa by passenger train by purchasing valid railway
ticket for Gondia to Wadsa. As there was heavy rush of the
passengers in the train and the deceased was standing near the
door of the coach, when the train reached in between Hirdamali to
Pindkepar at KM No. 1020/12-13, the deceased fell down from
running train and sustained injuries and died on the spot.
6. The respondent railway has resisted the claim application
by filing the written statement and stated that it is not untoward
incident and the deceased was not bonafide passenger of the train.
7. The Tribunal observed that the deceased was not a bona
fide passenger as no ticket was found with him and held that the
claimant had made false claim and railway is not responsible for
the incident. It is also held that the present incident is not covered
within the term “untoward incident”, as defined under Section
123(c)(2) of the Railways Act. Hence, dismissed the claim of the
8. It is the contention of the appellant that the deceased was
travelling by passenger train from Gondia to Wadsa fell down from
the running train and died on the spot. The learned Tribunal erred
in not considering that railway ticket has been lost in an untoward
incident and specifically contended that the burden lies on railway
to prove that deceased was ticketless passenger. The learned
Counsel for the appellant relied on the following citations :
reported in AIR 2007, SC 1474.
2. Union of India Vs. Prabhakaran Vijayan Kumar and
others, reported in 2008 ACJ 1895.
3. Union of India Vs. Rina Devi reported in AIR 2018 SC
9. It is the contention of the learned Counsel for the
respondent that the deceased was neither a bona fide passenger,
nor fell down from the train in question, the alleged incident took
place due to sole negligent, careless and wrong act on the part of
the deceased, the alleged incident is not covered under Section 123
& 124 of the Railways Act, 1989 and the present appellant-claimant
is not the dependant on the deceased as she is married daughter
therefore the Railway Administration is not liable to pay any
compensation to the appellant.
10. I have perused the records and considered the
submissions advanced by the learned Counsel for the respective
parties. The questions for consideration are whether the present
appellant is the ‘dependant’ on the deceased, whether the deceased
was a ‘bonafide passenger’ and whether his death was caused in an
‘untoward incident’.
11. Admittedly there was no railway ticket found for the
journey from Gondia to Wadsa at the time of preparing of spot
panchanama and during the inquest panchanama.
12. So far as question whether the present appellant is the
dependant of the deceased is concerned, admittedly she is married.
In view of the judgment Smt. Manjiere Bera (supra), though
claimant is not dependant on deceased, she is entitled for
compensation being legal representative of the deceased. She
cannot be denied compensation on the ground that she is not
dependant on the deceased. Section 123(b) (i) in The Railways Act,
1989 reads as under:
(b) “dependant” means any of the following
relatives of a deceased passenger, namely:—
(i) the wife, husband, son and daughter, and in case
the deceased passenger is unmarried or is a minor,
If Section 123(b)(i) of the Railway Act is perused, it is the
definition of dependant wherein daughter is included. There is no
qualification either married or unmarried daughter. As such
claimant is entitled for compensation. So far as whether deceased
was bonafide passenger or not is concerned, admittedly there was
no railway ticket found on the person of deceased for journey from
Gondia to Wadsa.
13. The learned Counsel for appellants relied on Rina Devi
(supra), the Hon’ble Supreme Court in paragraph no.17.4 held as
“17.4. We thus hold that the mere presence of a
body on the Railway premises will not be conclusive
to hold that injured or deceased was a bona fide
passenger for which the claim for compensation
could be maintained. However, mere absence of
ticket with such injured or deceased will not
negative the claim that he was a bona fide
passenger. Initial burden will be on the claimant
which can be discharged by filing an affidavit of the
relevant facts and the burden will then shift on the
Railways and the issue can be decided on the facts
shown or the attending circumstances. This will
have to be dealt with from case to case on the basis
of facts found. The legal position in this regard will
stand explained accordingly.”
In view of the judgment Rina Devi (supra), even if there
is no ticket found on the person of deceased that cannot be the
ground for denial of compensation.
14. Learned Counsel also relied on Union of India Vs.
Mangalaben (supra) wherein this Court relied on the judgment
passed in Rajkumari Vs. Union of India 1993 ACJ 846 held that
"since ticket less travel is an illegal act and exposes
such traveler to penal action, there is presumption
of innocence in favour of the passenger traveling in
train unless contrary is proved by the Railway
Administration that the passenger was, in fact,
ticket less traveler and not a bona fide passenger.
Nothing had prevented the Railway Administration
from checking and detecting any unauthorized
person travelling without a ticket/pass or
permission of Railway Administration."
15. This Court while deciding First Appeal No.382/2018
(supra) relied on judgment passed in S. Vijayalaxmi by the Madras
High Court wherein it is held that when a person died in an
accident by falling down from train, it is not possible for the legal
heirs to produce the ticket or valid authority to travel in the train.
Next question arise for my determination is that whether the
incident is 'untoward incident' within the meaning of Section
124(A) of the Railway Act.
16. The Hon’ble Apex Court in this case of Prabhakaran
(Supra) held as under:
10. We are of the opinion that it will not legally
make any difference whether the deceased was
actually inside the train when she fell down or
whether she was only trying to get into the train when
she fell down. In our opinion in either case it amounts
to an “accidental falling of a passenger from a train
carrying passengers”. Hence, it is an ‘untoward
incident’ as defined in section 123 (c) of the Railways
11. No doubt, it is possible that two interpretations
can be given to the expression ‘accidental falling of a
passenger from a train carrying passengers’, the first
being that it only applies when a person has actually
got inside the train and thereafter falls down from the
train, while the second being that it includes a
situation where a person is trying to do so. Since the
provision for compensation in the Railways Act is a
beneficial piece of legislation, in our opinion, it
should receive a liberal and wilder interpretation and
not a narrow and technical one. Hence, in our
opinion, the latter of the above – mentioned two
interpretations, I.e, the one which advances the object
of the statute and serves its purpose should be
preferred vide Kunal Singh
12. It is well settled that if the words used in a
beneficial or welfare statute are capable of two
constructions, the one which is more in consonance
with the object of the Act and for the benefit of the
person for whom the Act was made should be
preferred. In other words, beneficial or welfare
statutes should be given a liberal and not literal or
strict interpretation.
17. As held by the Hon’ble Apex Court in Rina Devi (supra)
in para 16.6 which read as under:
“16.6 We are unable to uphold the above view as the
concept of ‘self inflicted injury’ would require intention
to inflict such injury and not mere negligence of any
particular degree. Doing so would amount to invoking
the principle of contributory negligence which cannot be
done in the case of liability based on ‘no fault theory’.
We may in this connection refer to judgment of this
Court in United India Insurance Co. Ltd. v. Sunil Kumar
laying down that plea of negligence of the victim cannot
be allowed in claim based on ‘no fault theory’ under
Section 163A of the Motor Vehicles Act, 1988.
Accordingly, we hold that death or injury in the course
of boarding or deboarding a train will be an ‘untoward
incident’ entitling a victim to the compensation and will
not fall under the proviso to Section 124A merely on the
plea of negligence of the victim as a contributing factor.”
18. As such there cannot be said to be negligence on the part
of deceased when it is strict liability of railway. In view of the fact
that there is no evidence laid by the railway to establish that there
was any negligence on the part of the deceased. The claimant is
legally entitled to claim for compensation. In view of the above
referred judgments, it has to be inferred that deceased was a
bonafide passenger and he fell down from running train was an
untoward incident. As such, I am inclined to allow the first appeal.
Accordingly, I proceed to pass the following order:
i) The appeal is allowed.
ii) The impugned judgment dated 23/08/2013
in Claim Application No. OA (IIu)/NGP/2011/335
passed by the Railway Claims Tribunal, Nagpur Bench
is hereby quashed and set aside.
iii) The respondent/Union of India is directed
to pay to the appellants the sum of Rs.8,00,000/-.
iv) The said amount shall be deposited in the
account of claimant/appellant after verification of
identity and bank details within three months.
The appeal stands disposed of accordingly.
|
A married daughter of a victim of a railway accident would also be entitled to compensation under the Railways Act even though she may not be dependent on him, the Nagpur bench of the Bombay High Court has held.
"If Section 123(b)(i) of the Railway Act is perused, it is the definition of dependant wherein daughter is included. There is no qualification either married or unmarried daughter. As such claimant is entitled for compensation," said Justice M.S. Jawalkar.
The court relied on the SC judgement in Manjiri Bera Vs. Oriental Insurance Co. Ltd. wherein the apex court held that the married daughter was entitled to compensation being a legal representative, and non-dependency cannot be a ground to deny her compensation.
The petitioner Mina Shahare, a 45-year-old labourer from Gondia district of Maharashtra, had approached the HC against a 2013 order of the Railway Claims Tribunal dismissing her claim for Rs.8,00,000/- along with interest from the date of accident.
According to Shahare's complaint, her father was travelling from Gondia to Wadsa by a passenger train in 2011 and due to the rush in the train he fell off and died instantly. He was standing near the door of the coach when the incident happened, as per the petition.
The deceased was a ticketless traveller, and died due to his own negligence, the railways administration argued. It further submitted the alleged incident is not covered under Section 123 & 124 of the Railways Act, 1989. It further said that Shahare was married and therefore not entitled to any compensation.
Relying on the SC judgement of Rina Devi, the bench held that the absence of a ticket cannot be a ground for denial of compensation. Moreover, if the deceased died by falling off the train his family cannot be expected to produce a ticket, the bench observed while relying on another judgement.
"As such there cannot be said to be negligence on the part of deceased when it is strict liability of railway. In view of the above referred judgments, it has to be inferred that deceased was a bonafide passenger and he fell down from running train was an untoward incident," the bench observed directing Railways to pay the petitioner compensation of Rs. 8 lakh.
Case Title: Sm. Mina vs Union of India
|
ivil Appeal No. 4586 of 1989.
From the Judgment and Order dated 14.3.1983 of the Delhi High Court in R.F.A. (O.S.) No. 3 of 1983.
Pallav Shishodiya and D. Bhandari for the Appellant.
V.C. Mahajan, Arun Madan and C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Arguments heard.
This is an appeal against the judgment and order passed in R.F.A. (OS) 3 of 1983 on March 14, 1983 by the High Court of Delhi dismissing the Civil Writ Petition in limini against the judgment and decree rendered by Chawla, J. in Suit No. 50 of 1972 on February 12, 1982.
The matrix of this case is stated hereunder.
The appellant M/s Marwar Tent Factory is a firm having its registered office at Jodhpur (Rajasthan) and dealing in the manufacture and sale of tents and tarpaulins.
The firm is a regular supplier of these goods to the defence services of India.
On March 13, 1986 tenders were invited for the supply of tents by the Directorate General of Supplies and Disposals, the respondent No. 2.
Accordingly, the appellant submitted a tender which was accepted by the officer of the Directorate General of Supplies and Disposals on behalf of the President of India.
The said contract was of two kinds of tents 'Flies Inner ' and 'Flies Outer '.
The agreed rate for the 'Flies Outer ' was Rs.225 per tent and the quantity was 19,100.
In accordance with the said terms of the contract the goods were to be inspected at the premises of the firm at Jodhpur and after the same being passed by the Inspector, the goods had to be despatched to the Commandant, C.O.D. Kanpur.
It was further agreed between the 130 parties that 95% of the price was payable on proof of des patch and production of the inspection note.
The balance 5% was to be paid after receipt of the goods in good condition by the C.O.D., Kanpur.
On October 14, 1968, one consignment of 1500 tents was despatched to the C.O.D., Kanpur by the appellant under Railway receipt No. 502671 dated 14.10.1968 and 95% of the price was paid by demand drafts dated 17.10.1968 and 19.5.1969.
The Commandant, C.O.D., Kanpur reported that 224 tents out of a sale consignment had not been received at Kanpur and consequently a sum of Rs.51,912 (being the full price of those 224 tents inclusive of sales tax) was deduct ed from the amounts due to the appellant under another contract.
The appellant made repeated requests and sent repeated reminders for payment of the said sum of Rs.51,912 from the respondent but without any effect.
As such, the appellant filed a suit being Suit No. 50 of 1972 in the High Court at Delhi for recovery of the said principal sum as well as interest on the principal.
The appellant further claimed interest on two other consignments as the price of the said consignments was paid after a great delay.
The two consign ments were of 700 and 1400 tents despatched on August 10, 1968 and August 27, 1968 respectively.
Though 95% of the price was paid, the balance 5% amounting to Rs.24,357 was not paid till December 1, 1971 despite repeated requests and reminders.
The said payment of Rs.24,357 was wrongfully delayed by about three years and a sum of Rs.8,525 was, therefore, claimed as interest @ 12% per annum from 1.1.1969 to 1.12.1971 on the said amount.
The total claim of the appellant was of Rs.74,972 i.e. Rs.51,912 principal sum and Rs. 14.535 as interest on this and Rs.8,525 as interest on the sum of Rs.24,357 wrongfully withheld for three years.
A joint statement was filed by the respondent Nos. 1, 2 & 5 as their interest were identical.
The defence was that 224 tents were received short under railway receipt No. 502671 and the sum of Rs.51,9 12 was rightly deducted from the payment due to the appellant under other contracts.
The respondent Nos. 3 and 4 also filed a joint written statement stating inter alia that only 11 tents were deliv ered short under railway receipt No. 502671 for which the admitted liability was to the tune of Rs.2,475.
This sum had been paid to the C.O.D., Kanpur by debit adjustment.
131 T.P.S. Chawla, J by his judgment and order dated Febru ary 12, 1982 though dismissed the claim of the appellant substantially but in so far as the amount of Rs.2,475 re garding the shortage of 11 terms admitted by respondent Nos. 3 and 4 was concerned, decreed the said sum in favour of the appellant with interest @ 12% per annum from 1.4.1972 till the date of judgment and further interest @ 6% from the date of judgment till the realisation of the amount.
Against the said judgment and decree the appellant preferred an appeal being R.F.A. (OS) No. 3 of 1983 before the Division Bench of the said High Court.
The said appeal was, however, dismissed by the High Court of Delhi by order dated March 14, 1983.
The instant appeal on special leave has been preferred by the appellant against the aforesaid judgment and decree.
The crucial question that requires consideration in this appeal is whether 1500 tents which were loaded in the rail way wagons on October 14, 1968 at Jodhpur for delivery to the respondent No. 5, the Commandant, C.O.D., Kanpur under railway receipt No. 502671 were actually delivered to the respondent No. 5.
It has been held by the Trial Court i.e. learned single Judge, High Court, Delhi that the tents were carried in 3 wagons upto Agra.
The railway line from Jodhpur to Agra was a meter gauge.
Thereafter, from Agra to Kanpur which is a broad gauge line the tents were put into four broad gauge wagons at Agra for onward transmission to Kan pur, as evident from the transmission, register.
It has been found that the railways could not establish the delivery of 224 tents under railway receipt No. 502671 to the Comman dant, C.O.D., Kanpur from the unloading register.
The short age certificate issued by the railways corroborates the entries in the unloading register.
The particulars of the consignment are set out in the heading of this document.
The railway receipt is No. 502671 and the names of the sendor and consignee are also mentioned.
The Traffic Officer, Commandant, C.O.D., Kanpur filed a claim with the railways on February 10, 1969 for 224 packages received short and this claim was made under railway receipt No. 502671.
The plea of the railways was that the shortage was of 11 tents and not of 224 tents.
It has been found by the Trial Court that this plea is falsified by the unloading register, the shortage certificate and the reconciliation statement as also the report made by their Traffic Inspector on December 9, 1970.
Accordingly, it was held that under railway receipt No. 502671 the appellant delivered the full quantity of 1500 tents to the railways but the latter failed to deliver 224 tents out of this consignment to the Commandant, C.O.D., Kanpur and as such the railways are estopped from contending that it was under some other railway 132 receipt.
The Trial Court, however, held that no decree could be passed against the railways because the plaint did not contain any claim for loss or non delivery against the railways.
Secondly, the suit against the railways was barred by time and thirdly since no notice under Section 78 B of the Indian Railways Act was served on the railways by or on behalf of the appellant.
The appellant, however, submitted that the title of the goods passed on to the respondent No. 5, Commandant, C.O.D., Kanpur, the moment the tents were lodged on rail head, Jodhpur as the term of delivery under the contract was F.O.R., Jodhpur.
For any short delivery of the goods made by the railways at Kanpur, the appellant was not responsible and the respondent No. 5, under the terms of the contract is not entitled to deduct the price of the short delivery of tents i.e. 224 tents.
It was for the Commandant, C.O.D., Kanpur to claim damages from the rail ways and the Commandant had actually made a claim as stated hereinbefore to the railways in respect of the short deliv ery.
The learned single Judge, however, found that the abbreviation F.O.R. meant Free on Rail meaning simply that the cost of the carriage of the goods upto the railway wagon is included in the price and must be borne by the seller and the cost of carriage thereafter is to be borne by the buyer.
It has also been held that the risk in the goods would not pass at Jodhpur as expressly stipulated in the general conditions of contract contained in Form DGS & D 68.
These were made applicable by clause 7 in the Schedule of accept ance of tender.
Special emphasis was laid to the condition No. 4 entitled "responsibility of contractor for executing the contract".
The learned Judge has with reference to sub clause (10) of this condition held that the goods shall remain in every respect at the risk of the contractor until their actual delivery to the consignee at the stipulated place and as such the risk of the appellant remains until the goods were actually delivered to the Commandant, C.O.D. Kanpur.
The argument as regards condition No. 14 of the general conditions of contract as well as its sub clause (2) entitled "passing of property" was negatived on the ground that the risk was governed by condition 4(1) of the general conditions of contact.
The claim before the railways being time barred and also no notice under Section 78 B of the Indian Railways Act having been served on the Railways within the stipulated period, the appellant could not claim for damages for breach of contract and for the price of the tents not delivered.
However, in respect of the price of 11 tents the shortage of which was admitted by the railways and for which a sum of Rs.2,475 was paid to the respondent No. 5 by the appellant, it was decreed with interest @ 12% per annum from 1.4.1972 till the date of passing of the decree and also further allowed interest on the said sum @ 6% per annum thereafter till the date of 133 payment.
The respondents, however, did not question the finding of the Trial Court regarding the short delivery of 224 tents at the railway station at Kanpur.
Admittedly, there has been a short delivery of 224 tents out of the consignment of 1,500 tents loaded at Jodhpur railway station in the railway wagon under the said receipt No. 50267 1.
In order to decide and fix the responsibility for pass ing of the decree in respect of the sum of Rs.51,912 being the full price of 224 tents inclusive of sales tax deducted from the amount due to the appellant under another contract by the respondent No. 5, it is pertinent to consider the question when the property in goods passed from the seller to the buyer at Jodhpur when the goods were loaded in rail way wagons for delivery to the consignee at Kanpur.
The learned counsel for the appellant drew our attention to the condition No. 11 of the Schedule of acceptance of tender dated February 29, 1968.
It has been mentioned therein that the terms of delivery was F.O.R., Jodhpur i.e. free on rail at Jodhpur railway station.
It has also been mentioned that before the goods are loaded on railway wagons for delivery to the respondent No. 5 at Kanpur, the Inspector, I.G.S. North India will inspect the same at firm 's premises at Jodhpur and after approval the said goods will be despatched to its destination by placing them in the railway wagons at Jodhpur railway station and the railway receipt has to be sent to the consignee under registered cover immediately after despatch of the stores with full details.
It is also stipulated that 95% of the price of the goods will be paid by the respondent No. 5 on receipt of the railway receipt and the inspection note and the balance 5% will be paid after the same reached at the destination in goods condi tion.
Referring to this term for delivery under clause 11 of the Schedule of acceptance of tender, it has been urged by the learned counsel for the appellant that the delivery was complete at Jodhpur when the/goods were loaded in the goods train for delivery to the respondent No. 5 at Kanpur and property in the goods passed to the buyer as soon as the goods were despatched by railway at Jodhpur.
Thereafter, the risk in respect of the goods despatched remained with the consignee.
The appellant, the consignor is entitled to get the entire price of the 224 tents which were short delivered by the respondent Nos. 3 and 4 to respondent No. 5 at Kanpur in view of the clear finding by the Trial Court that though the entire consignment of 1500 tents was actually loaded in the railway wagons for despatch to the consignee, the re spondent No. 5.
The respondent No. 5 duly filed a claim to the railways, the respondent Nos. 3 and 4 for the short delivery to the tune of 224 tents immediately after taking delivery of the goods.
In order to decide the question as to whether the rights in the goods passed from 134 the seller to the buyer i.e. from the appellant to the respondent No. 5 as soon as the goods were loaded in railway wagons at Jodhpur and the railway receipt was sent to the consignee, it is pertinent to refer to the meaning of the words F.O.R. Jodhpur.
In Haulsbury 's Law of England, 4th Edition (Volume 41) at page 800, para 940 it has been men tioned that: "Under a free on rail contract (F.O.R.) the seller undertakes to deliver the goods into railway wagons or at the station (depending on the practice of the railway) at his own ex pense, and (commonly) to make such contract with the railway on behalf of the buyer as is reasonable in the circumstances.
Prima facie the time of delivery F.O.R. fixes the point at which property and risk pass to the buyer and the price becomes payable." In Benjamin 's Sale of Goods (2nd Edition), at page 1799 it is stated as under: "Stipulations as to time of 'delivery ' provi sions as to the time of delivery in an f.o.r.
contract are taken to refer to the time of shipment and not to the time of arrival of the goods; and this may be so even though the provision in question contemplates the arrival of the goods by a certain time.
Thus in Fre bold and Sturznickel (Trading as Panda O.H.D.V vs Circle Products Ltd. German sellers sold toys to English buyers f.o.b.
Continental Port on the terms that the goods were to be deliv ered in time to catch the Christmas trade.
The goods were shipped from Rotterdam and reached London on November 13; but because or ' an oversight for which the sellers were not responsible the buyers were not notified of the arrival of the goods until the following January 17.
It was held that the sellers were not in breach as they had delivered the goods in accordance with the requirements of the contract by shipping them in such a way as would normally have resulted in their arrival in time for the Christmas trade.
" The question as to the meaning of F.O.R. contract fell for consideration in the case of Girija Proshad Pal vs The National Coal Co. Ltd., AIR 1949 (Calcutta) 472.
P.B. Muk harji, J. as His Lordship then was observed in para 11 as follows: 135 "The words f.o.r. are well known words in commercial contracts.
In my judgment they mean when used to qualify the place of delivery, that the seller 's liability is to place the goods free on the rail as the place of deliv ery.
Once that is done the risk belongs to the buyer.
" Reference may also be made in this connection to the decision of this Court rendered in The Commissioner of Sales Tax, Eastern Division, Nagpur vs Husenali Adamji and Co., [1959] 2 Supp.
SCR 702.
In that case under the terms of the contract the respondent Company whose place of business was situate in Chanda in the erstwhile Central Provinces had to load diverse quantities of 'sawar ' logs on railway wagons and to despatch the same from Chanda and other railway stations in the Central Provinces to Ambernath, a town in the erstwhile Province of Bombay.
Clause 2 of the contract reserved the right of the consignee to examine the goods on arrival at Ambernath and to reject the same if they were found, in the opinion of the factory manager, not to conform with the specifications.
Clause 6 also provided that the goods shall be measured under the supervision of the facto ry 's representative, the decision of the factory manager at Ambernath would be binding on the contractor and by clause 7 the prices of the goods shall be 'F.O.R. Ambernath '.
The question arose was as to when and where the property in the logs passed from the respondent to the consignee and whether the respondent was liable to pay sales tax under the provi sions of the Central Provinces and Berar Sales Tax Act, 1947.
The Sales Tax Department levied the tax on the re spondent on the ground inter alia that the property in the logs passed from the respondent to the factory consignee under section 23 of the Indian when the logs were loaded in the wagons at railway stations within the Central Provinces and the railway receipts taken in the name of the factory were forwarded to the latter.
It was held: "that on a proper construction of the contract as a whole the intention of the parties was that the respondent would send the logs by rail from the different stations in the Cen tral Provinces to Ambernath where the factory manager would inspect, measure and accept the same if in his opinion they were of the de scription and quality agreed upon.
Consequent ly, as the respondent sent the logs and left it to the factory to appropriate to the con tract such of them as they accepted as of contract, quality and description, the proper ty in the logs did not pass to the buyer by 136 the mere delivery to the railway for carriage but passed only at Ambernath when the logs were appropriated by the factory with the assent of the seller within the meaning of section 23 of the Indian Safe of Goods Act, 1930.
" It is also convenient to refer*to the provision of Section 23(2) of the Indian .
This sub section provides that: "(2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have uncondition ally appropriated the goods to the contract." In the instant case, in view of the terms and conditions of the contract embodied in clause 11 of the Schedule of acceptance of tender regarding the place of delivery 'F.O.R. Jodhpur ', the property in the goods passed immediately on from the seller after delivering the goods and loading the same in the railway wagons at Jodhpur for transmission to the buyer, the consignee, without reserving any right of disposal.
The seller is deemed to have unconditionally appropriated the goods to the contract only under section 26 of the said Act, the goods remained at seller 's risk until the property therein is transferred to the buyer.
As stated earlier that the property in goods has been transferred to the buyer by the seller by delivery of the goods and loading the same at Jodhpur in railway wagons.
In this connection reference may be made to Section 39(1) of said Act.
Consid ering the aforesaid provisions of The as well as the terms and conditions of delivery i.e. 'F.O.R. Jodhpur ' the irresistible conclusion that follows is that the property in the goods together with the risk passed from the seller to the buyer i.e. from consignor to the consignee as soon as the goods were loaded in the railway wagons at Jodhpur as per the terms of delivery i.e.F.O.R. Jodhpur.
Therefore, the finding of the Trial Court that the risk throughout ramained with the appellant until the goods were actually delivered to the Commandant, C.O.D., Kanpur is wholly wrong and illegal.
The further finding of the Trial Court that the risk was governed with the condition No. 4(1) of the Schedule of Acceptance of Tender and the property in the goods i.e. the tents did not pass until the same were actually delivered to the Commandant, C.O.D. Kanpur and the Commandant, C.O.D. Kanpur was not liable for loss of the tents during the period of transit by the railways is also illegal and bad.
As stated hereinbefore on considera 137 tion of the place of delivery as well as the terms of deliv ery embodied in clause 11 of the Schedule of Acceptance of Tender, the property in the goods along with the risk in the goods passed from the appellant to the respondent No. 5 when the goods were delivered and despatched by railway wagons at Jodhpur i.e. F.O.R., Jodhpur.
The consignee, Commandant, C.O.D., Kanpur is therefore, liable for the price of 224 tents which was deducted by him from the other bills of the appellant.
The findings of the Trial Court which were con firmed by the Division Bench of the High Court are, there fore, liable to be set aside and the claim of the plaintiff appellant should be decreed.
As regards the claim of interest on the unpaid price of 224 tents amounting to Rs.51,912 for the period from 1.1.1969 to 1.12.1972 @ 12% per annum, the Courts below disallowed the claim on the findings that no claim for the price of the goods had been made against the railways, nor any notice under Section 78 B of the Indian Railways Act had been served on respondent Nos. 3 and 4, and the suit was barred by limitation against the Railways.
We have already held hereinbefore that the appellant is entitled to get not only the price of the goods but also the interest thereon for not making the payment of the price of the goods within a reasonable time.
The interest @ 12% per annum was claimed by the plaintiff appellant on Rs.51,912 being the price of 224 tents for the period from 1.1.1969 to 1.12.1972.
It is appropriate to refer in this connection to the relevant provisions of Section 61(2) of the (Act 3 of 1930) which reads as follows: "61(2): In the absence of a contract to the contrary, the Court may award interest as such rate as it thinks fit on the amount of the price (a) to the seller in a suit by him for the amount of the price from the date of the tender of the goods or from the date on which the price was payable, (b) to the buyer in a suit by him for the refund of the price in a case of a breach of the contract on the part of the seller from the date on which the payment was made.
" In the instant case, undoubtedly, it has been found by the Courts below that the short delivery of 224 tents oc curred during the transmit of the said goods by the rail ways.
It is also an admitted fact that the respondent No. 5, the Commandant, C.O.D. Kanpur deducted the price of the said 224 tents from the other bills of the contractor i.e. the 138 appellant and did not pay the same The appellant has claimed interest in respect of the price of the said goods being not paid to the appellant within a reasonable time from the date of delivery of the goods i.e. for the period from 1.1.1969 to 1.12.1971.
The respondent No. 5 did not dispute the claim of the appellant in this regard.
His only plea was that in the notices under Section 80 of the Code of Civil Procedure served on the respondents the claim of interest was not made and as such the claim of interest could not be allowed.
In the case of B.B. Bose vs National Coal Trading Company, AIR 1966 (Patna) 346, the plaintiff filed a suit for recovery of price of goods sold to the defendant.
Before filing the suit the plaintiff served a demand notice on the defendant.
In the demand notice exhibit 2, no claim for interest was put by the plaintiff.
It was urged on behalf of the defendant that there was no stipulation for payment of interest in case the price remained unpaid in the contract and as such the plain tiff could not claim any interest on the unpaid amount.
This was negatived by the High Court, Patna and it was held: " . .
That is, no doubt, true, but the demand clearly was for the outstanding balance price of coal which the plaintiff had supplied to the defendant.
The supplies had been effected upto the 26th June, 1954, and in the normal course, the price ought to have been paid by the defendant within a reasonable time of the deliveries, but the payment had been delayed for nearly three years and plain tiff was obliged to institute the present suit for recovery of the price.
In such circum stances, it was within the discretion of the court to award interest to the plaintiff at a reasonable rate on the amount of the price under section 61(2) of the .
The price was undoubtedly payable when the notice of demand (exhibit 2) was served by the plaintiff upon the defendant and there can be no doubt that the rate of 6 per cent per annum which the Court awarded was a reasonable rate." Similar question cropped up for decision in the case of M/s M.K.M. Moosa Bhai Amin, Kota vs Rajasthan Textile Mills, Bhawanimandi, Raj LW 77.
In this case the plaintiff filed the suit for price of the goods delivered as well as for interest on the unpaid price.
The claim regarding interest was disallowed by the District Judge on the ground that there was no stipulation for pay ment of interest in case the price of the goods supplied remained unpaid.
It was contended on behalf of the plaintiff that even 139 in the absence of the contract, the plaintiff was entitled to reasonable interest under Section 61(2) of the .
The supply had been effected upto September 18, 1962 and in normal case the price of the goods ought to have been paid by the defendant within a reasonable time of the deliveries but the payment had been delayed for nearly a year which compelled the plaintiff to bring the suit for recovery of the price.
It has been held that in such circum stances, the lower courts should have exercised discretion in favour of the plaintiff and awarded interest on the amount of the price of the goods under Section 61(2) of the .
The High Court of Rajasthan allowed interest @ 6% per annum which was considered to be a reason able rate of interest.
On a conspectus of all the decisions referred to before as well as the provisions of Section 61(2) of the , we are constrained to hold that the plaintiff is entitled to get a decree of interest on the unpaid price from 1.1.1969 to 1.12.1971 @ 6% per annum which is consid ered to be a reasonable rate of interest, as claimed by the plaintiff appellant.
In the premises aforesaid the appeal is allowed and the judgments and the decree of the Courts below in so far as they rejected the claims regarding the price of 224 tents and interest thereon are set aside.
The plaintiff appel lant 's claim for the price of the said goods as well as interest thereon @ 6% per annum for the period from 1.1.1969 to 1.12.1971 is hereby decreed.
The appeal is thus allowed with costs quantified at Rs.4,000.
The claim for interest @ 6% per annum for the period from 1.1.1972 till date of payment of amount unpaid is allowed.
Y. Lal Appeal allowed.
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The appellant is a firm dealing in the manufacture and sale of Tents and Tarpaulins at Jodhpur in Rajasthan.
It carried on a regular business of supplying these goods to defence services.
The Director General of Supplies and Dis posal invited tenders for the supply of tents and the appel lant firm submitted its tender, which was accepted.
The said contract was of two kinds of tents viz, "Flies Inner" and "Flies Outer", the agreed rate of the latter was Rs.225 per tent and the quantity was 15,000.
As per the terms of the contract, the goods were to be inspected at the premises of the appellant firm and after inspection the same were to be despatched to Commandant, C.O.D., Kanpur.
As regards the mode of payment of the price of the goods, 95% of the price was to be paid on proof of despatch of goods and production of inspection note, and 5% latter.
On October 14, 1968 one consignment of 1500 tents was despatched to C.O.D. Kanpur from Jodhpur by the appellant under Railway Receipt No. 502671 and 95% of the price was paid to the appellant.
The commandant, C.O.D. Kanpur, the consignee reported that 224 tents out of the said sale consignment had not been received at Kanpur and for that reason a sum of Rs.51,912 being the price of 224 tents was deducted from the amounts due to the appellant, under anoth er contract.
The Traffic Officer, Commandant C.O.D. had filed a claim with the railways for short delivery of 224 tents.
Despite repeated requests by the appellant for the payment of the said amount, the same was not paid to it.
As such the appellant filed a suit in Delhi High Court for the recovery of the principal amount as also for the interest thereon.
In the suit, the appellant also claimed interest on two other consignments, as its balance price i.e. 5% amount ing to Rs.24,357 was paid after a delay of 3 years and thus a sum of Rs.8,525 was claimed as interest @ 12% per annum from 1.1.69 to 1.12.71.
Thus the total claim was of Rs.74.972.
128 The defence of Respondents 1, 2 & 5 was that 224 tents were received short and as such a sum of Rs.51,912 its price was rightly deducted from the appellant 's bill.
Respondents 3 & 4 (Railways ' Officials) filed a State ment that only 11 tents were delivered short for which the admitted liability was Rs.2,475, the same having been paid to C.O.D. Kanpur by debit adjustment.
The Trial Judge by his Order dated February 12, 1982 dismissed the claim of the appellant substantially but so for as the amount of Rs.2,475 regarding the shortage of 11 tents was concerned, the same was decreed with interest.
Against the Judgment and Order of the Trial Judge, the appellant preferred an appeal before the Division Bench of the High Court and the same having been dismissed, the appellant has come up in appeal to this Court after obtain ing Special Leave.
Allowing the appeal, this Court, HELD: In view of the terms and conditions of the con tract embodied in clause 11 of the schedule of acceptance of tender regarding the place of delivery "F.O.R. Jodhpur", the property in the goods passed immediately on to the seller after delivering the goods and loading the same in the railway wagons at Jodhpur for transmission to the buyer, the consignee, without reserving any right of disposal.
[136D] On consideration of the place of delivery as well as the terms of delivery embodied in clause 11 of the schedule of Acceptance of Tender, the property in the goods alongwith the risk in the goods passed from the appellant to the Respondent No. 5 when the goods were delivered and dis patched by railway wagons at Jodhpur i.e. F.O.R. Jodhpur.
The consignee, Commandant, C.O.D. Kanpur is, therefore, liable for the price of 224 tents which was deducted by him from the other bills of the appellant.
[137A B] The plaintiff is entitled to get a decree of interest on the price from 1.1.69 to 1.12.1971 @ 6% per annum which is considered to be a reasonable rate of interest as claimed by the plaintiff appellant.
[139C] Girija Proshad Pal vs The National Coal Co. Ltd., AIR 1949 Cal.
472; The Commissioner of Sales Tax, Eastern Divi sion, Nagpur vs 129 Husenali Adamji & Co., [1959] 2 Supp.
SCR 702; B.B. Bose vs National Coal Trading Company, AIR 1966 (Patna) 346 and M/s. M.K.M. Moosa Bhai Amin, Kota vs Rajasthan Textile Mills, Bhawanimandi, Raj.
L.W. 77, referred to.
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Heard the learned counsel for the Appellant and the
Respondent who appears in person.
2. The Appellant wife has filed this appeal challenging the
order passed by the Family Court, Bandra, dated 13 November
2005, rejecting the Civil Misc. Application No.85/2008 filed by the
Appellant for setting aside the ex parte decree of divorce dated 17
December 2007 in Petition No.A-2329/2006.
3. The parties got married on 26 May 1986 at Ahmednagar.
There are three children from the wedlock. After that, the parties
resided in Mumbai. According to the Respondent-Husband, the
Appellant's behaviour changed after some period, and quarrels arose
between the parties. The Respondent husband filed Petition No.A-
2329/2006 on the ground of mental cruelty. It is stated by the
Respondent that the Appellant had illicit affair with one person who
was joined as a respondent in the petition. Respondent-Husband
alleged that the Appellant was abusing and humiliating him;
ultimately, in 2003, she left the matrimonial home. It was alleged
skn 3 25-FCA-69.2009.edited.doc
that the Appellant never took care of the children and used to steal
money from the Respondent and give it to her paramour, the co-
respondent. Summons was served on the Appellant and which was
returned with the endorsement "refused" on 18 June 2007. The
learned Family Court Judge noted that a case was made out for
divorce and, accordingly, on 17 December 2007, the decree of
divorce was granted.
4. Thereafter, the Appellant filed Civil Misc. Application
No.85/2008 for setting aside the decree. It was stated that the
Appellant wife, an illiterate lady, was not aware of the legal
procedure, and upon legal advice, she did not remain present and
this is a case where the decree of divorce should be set aside, and the
Appellant should be given an opportunity. The learned Family
Court Judge, by a detailed order dated 13 November 2008, after
examining the evidence, has dismissed the application. These orders
are the subject matter of the Appeal.
5. The learned counsel for the Appellant reiterated the
contentions made by the Appellant before the Family Court. We
note that the learned Family Court Judge has held that the ground
that the Appellant is illiterate is not sufficient and not believable as
she has filed three criminal cases against the Respondent husband
and, therefore, was fully aware of the legal procedure. The Appellant
had filed the petition for restitution of conjugal rights on 11
December 2006. She filed an application for maintenance in the
skn 4 25-FCA-69.2009.edited.doc
Court of Judicial Magistrate, First Class, Akole and another criminal
case in the same Court under section 498A, 506 Part-II read with
section 34 of the Indian Penal Code. Even after the summons was
served on the Appellant, on several dates between June 2007 to
December 2007, the learned Family Court Judge gave an
opportunity to the Appellant to appear before the Court. The
Appellant did not attend a single date, and in these circumstances,
the Respondent's petition came to be allowed. The Family Court
Judge also noted that the Respondent has remarried, and no case for
fraud is made out by the Appellant against the Respondent.
6. The learned counsel for the Appellant relied on the
decision of the Hon’ble Supreme Court in the case of Balwinder
Kaur v. Hardeep Singh (1997) 11 SCC 701. Based on this
judgment, it was contended that the Family Court had a duty under
section 23 of the Hindu Marriage Act, 1955, to make all efforts to
make the parties remain present to ascertain whether reconciliation is
possible. The fact situation that arose before the Hon’ble Supreme
Court was entirely different. In the present case, the Appellant - wife
chose not to remain present despite summons having been served,
and the Appellant thereafter cannot be heard to argue that it was the
duty of the Family Court to force her to remain present.
7. It is an established position from record that the summons
was served, yet the Appellant refused. The Appellant had knowledge
of the legal procedure, having filed three criminal cases. On several
skn 5 25-FCA-69.2009.edited.doc
dates, after the summons was served since the Appellant did not
remain present, and the decree of divorce came to be passed. After
waiting for almost six months, the family Court had no option but to
proceed further and grant the decree of divorce. We do not find any
error in the view taken by the learned Family Court Judge.
8. The Respondent has remarried. According to the
Respondent, who appears in person, the Appellant - wife is now
living with the co-respondent in Gujarat and is only harassing the
Respondent with demands for money. Considering the totality of
the circumstances, we do not find that there is any case made out to
set aside the impugned order. The Appeal is, therefore, dismissed.
9. Regarding arrears pursuant to the interim order, it is open
to the Appellant's wife to take appropriate proceedings in that regard,
and the dismissal of appeal will not come in the way of the
10. In view of the dismissal of the Appeal, the Civil
Application does not survive and is disposed of accordingly.
|
Observing that a woman who filed three criminal cases against her husband would be fully aware of the legal procedure, the Bombay High Court refused to set aside a divorce decree granted by the Family Court owing to her non-appearance.
A division bench of Justices Nitin Jamdar and Sharmila Deshmukh rejected the wife's claim that she was illiterate and a victim of wrong legal advice, moreover that it was the court's duty to secure her presence.
"The Appellant had knowledge of the legal procedure, having filed three criminal cases," the High Court bench observed, adding that the family court passed the ex-parte decree after the wife refused to accept several court summons.
"In the present case, the Appellant - wife chose not to remain present despite summons having been served, and the Appellant thereafter cannot be heard to argue that it was the duty of the Family Court to force her to remain present," Court added.
The couple got married on May 26, 1986 and had three children from the wedlock. The husband filed for divorce in the Family Court alleging mental cruelty in 2006. He accused his wife of having an affair with another man. He claimed that after "abusing and humiliating him," she left the matrimonial home in 2003.
Summons were issued to the wife to appear in the matter but she refused to appear. The Family Court Judge noted that a case was made out for divorce and, accordingly, on 17 December 2007, the decree of divorce was granted.
The wife then filed an application for setting aside the order of divorce, which came to be rejected by the Family Court in 2008. These two orders were then challenged before the High Court.
"After waiting for almost six months, the family Court had no option but to proceed further and grant the decree of divorce. We do not find any error in the view taken by the learned Family Court Judge," the High Court said.
The bench noted that the wife filed a petition for restitution of conjugal rights on 11 December 2006. She then filed an application for maintenance and another criminal case in the same Court under section 498A, 506 Part-II read with section 34 of the Indian Penal Code.
Despite this, when the Family Court issued numerous summons to her between June 2007 to December 2007 she did not attend on even a single date and her husband's petition came to be allowed. In its order the Family Court Judge also noted that the husband had remarried, and no case for fraud is made out against him.
The husband appearing in person informed the court that the woman has been co-habiting with her paramour in Gujarat and is pursuing the present proceedings against him only to harass him.
"Considering the totality of the circumstances, we do not find that there is any case made out to set aside the impugned order. The Appeal is, therefore, dismissed," the bench said.
Case Title: Rohini Raju Khamkar V/s. Raju Ranba Khamkar
|
Present: Mr. Nikhil Ghai, Advocate for the appellant.
1. This appeal is directed against conviction and sentence of
Parveen Kumar (appellant) vide judgment and order dated 29.11.2004, in
case of FIR No. 76 dated 10.3.2002, under Sections, 7, 13(1)(d) read with
13(2) of the Prevention of Corruption Act, 1988, registered at Police Station
2. As per the case of the prosecution, Zile Singh (complainant)
gave an application on 10.3.2002. The allegations were that the appellant
demanded bribe of Rs.2500/- for correction of Khasra Girdawari regarding
redemption of the mortgaged land of the father of the complainant. A trap
was laid, five notes each of denomination Rs.500/- were initialled and
laced with Phenolphthalein power. SI-Krishan Kumar was deputed as
CRA-S-2469-SB of 2004 [2]
shadow witness. He was instructed to accompany the complainant and to
give signal to the raiding party on passing of the bribe to the appellant. On
signal from the shadow witness at about 2.15 P.M., the appellant was
apprehended sitting on a motor cycle. From a purse kept in pocket of his
pant, laced currency notes were recovered. On washing the hand and
pocket of pant of the appellant, the colour of solution turned pink. After
grant of sanction the challan was filed, charges framed, the appellant
pleaded not guilty and claimed trial.
3. The prosecution to support its case examined sixteen
4. In statement under Section 313 Cr.P.C., the appellant stated
that it is a case of false implication. He was forcibly lifted from his
residence along with motor cycle and the case was foisted upon him while
sitting in the police station.
5. In defence, the appellant examined five witnesses.
6. The trial court taking into consideration that:-
(1) The Jamabandi Ex.PM for the year 1995-96 produced showed
land of Duli Chand recorded as mortgaged in favour of Bhajan
Lal and Gobind Singh and it continued till October, 2001
whereas mortgage was redeemed on 1.6.1989;
(2) the complaiant approached the appellant for correction of
Khasra Girdawari cannot be doubted;
(3) as per deposition of Rohtas Singh-DSP illegal gratification
was demanded by the appellant for correcting the revenue
CRA-S-2469-SB of 2004 [3]
(4) tainted currency was recovered from the appellant;
(5) non supporting of the case of prosecution by the complainant
was not fatal, as his presence was proved from his signatures
on memos Ex.PG and Ex.PH by which the complainant gave
notes and those were returned after applying Phenolphthalein
(6) presumption under Section 20 of the Act was drawn against the
and there was valid sanction to prosecute, convicted the
appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Act
vide judgment dated 29.11.2004 and vide order of even date was sentenced
Under Section Punishment Fine In default of
7 of the Act Rigorous Rs.3,000/- Rigorous
imprisonment for imprisonment for
13(1)(d) read Rigorous Rs.3,000/- Rigorous
with Section imprisonment for imprisonment for
13(2) of the Act three years nine months
7. Learned counsel for the appellant submits that the complainant
has not supported the version of prosecution. The submission is that the
shadow witness had not heard the conversation between the complainant
and the appellant. He further submits that there was no evidence of demand
and acceptance of bribe by the appellant. The contention is that the
appellant was picked from home and he was falsely implicated.
CRA-S-2469-SB of 2004 [4]
8. Learned counsel for the State defends the impugned judgment.
He submits that the official witnesses supported the case of the
prosecution. He further submits that the defence put forth by the appellant
was not believable and reliance was placed upon the statements made by
DW2-Poonam (wife of the appellant) who is an interested witness.
9. Heard learned counsel for the parties and perused the record of
the court below.
10. It is settled legal position that for conviction under Section 7 of
the Act, demand and acceptance has to be proved. Recovery of the tainted
currency in itself is not enough for conviction under Section 7 of the Act.
The presumption under Section 20 of the Act can be drawn if the
acceptance of the amount is proved and for proving the acceptance,
demand is pre-requisite. It is also settled that presumption under Section 20
of the Act can be inferred for conviction under Section 7 of the Act and not
under Section 13(1)(d) of the Act. The defence taken by the appellant has
to be tested on probabilities of preponderance. The onus is not as heavy on
the accused as on the prosecution to prove its case beyond reasonable
11. It would be gainful to cite the following judgments:
11.1 In K. Shanthamma v. State of Telangana, 2022(2) RCR
(Criminal) 195, the Supreme Court held as under:
7. We have given careful consideration to the submissions. We
have perused the depositions of the prosecution witnesses. The
offence under Section 7 of the PC Act relating to public
servants taking bribe requires a demand of illegal
CRA-S-2469-SB of 2004 [5]
gratification and the acceptance thereof. The proof of demand
of bribe by a public servant and its acceptance by him is sine
quo non for establishing the offence under Section 7 of the PC
Act. In the case of P. Satyanarayana Murthy v. District
Inspector of Police, State of Andhra Pradesh and another,
(2015) 10 SC 152, and another, this Court has summarised
the well-settled law on the subject in paragraph 23 which
23. The proof of demand of illegal gratification, thus, is
the gravamen of the offence under Sections 7 and
13(1)(d)(i) and (ii) of the Act and in absence thereof,
unmistakably the charge therefor, would fail. Mere
acceptance of any amount allegedly by way of illegal
gratification or recovery thereof, de hors the proof of
demand, ipso facto, would thus not be sufficient to bring
home the charge under these two sections of the Act. As a
corollary, failure of the prosecution to prove the demand
for illegal gratification would be fatal and mere recovery
of the amount from the person accused of the offence
under Section 7 or 13 of the Act would not entail his
conviction thereunder.”
11.2 In B. Jayaraj v. State of A.P., 2014(2) R.C.R. (Criminal)
410, the Supreme Court held as under:
“9. In so far as the presumption permissible to be
drawn under Section 20 of the Act is concerned, such
presumption can only be in respect of the offence under
Section 7 and not the offences under Section
13(1)(d)(i)(ii) of the Act. In any event, it is only on proof
of acceptance of illegal gratification that presumption
can be drawn under Section 20 of the Act that such
gratification was received for doing or forbearing to do
any official act. Proof of acceptance of illegal
gratification can follow only if there is proof of demand.
CRA-S-2469-SB of 2004 [6]
As the same is lacking in the present case the primary
facts on the basis of which the legal presumption under
Section 20 can be drawn are wholly absent.”
11.3 In N. Sunkanna v. State of Andhra Pradesh, 2015(4) RCR
(Criminal) 797, the Supreme Court observed as under:
“The prosecution examined the other fair price shop dealers
in Kurnool as PWs 3, 4 and 6 to prove that the accused was
receiving monthly mamools from them. PWs 4 and 6 did not
state so and they were declared hostile. PW-3 though in the
examination-in-chief stated so, in the cross-examination
turned round and stated that the accused never asked any
monthly mamool and he did not pay Rs.50/- at any time. The
prosecution has not examined any other witness present at the
time when the money was demanded by the accused and also
when the money was allegedly handed-over to the accused by
the complainant. The complainant himself had disowned his
complaint and has turned hostile and there is no other
evidence to prove that the accused had made any demand. In
short there is no proof of the demand allegedly made by the
accused. The only other material available is the recovery of
the tainted currency notes from the possession of the accused.
The possession is also admitted by the accused. It is settled
law that mere possession and recovery of the currency notes
from the accused without proof of demand will not bring home
the offence under Section 7 since demand of illegal
gratification is sine-qua-non to constitute the said offence. The
above also will be conclusive insofar as the offence under
Section 13(1)(d) is concerned as in the absence of any proof of
demand for illegal gratification the use of corrupt or illegal
means or abuse of position as a public servant to obtain any
valuable thing or pecuniary advantage cannot be held to be
CRA-S-2469-SB of 2004 [7]
established. It is only on proof of acceptance of illegal
gratification that presumption can be drawn under Section 20
of the Act that such gratification was received for doing or
forbearing to do any official act. Unless there is proof of
demand of illegal gratification proof of acceptance will not
follow. Reference may be made to the two decisions of three-
Judge Bench of this Court in B. Jayaraj v. State of Andhra
Judgments (R. A. J.) 570; (2014) 13 SCC 55] and P.
Satyanarayna Murthy v. The District Inspector of Police and
another [2015(4) RCR (Criminal) 350; 2015(4) Recent Apex
11.4 In State of Punjab v. Madan Mohan Lal Verma, (2013) 14
SCC 153, the Supreme Court held as under:
“11. The law on the issue is well settled that demand of illegal
gratification is sine qua non for constituting an offence under the Act
1988. Mere recovery of tainted money is not sufficient to convict the
accused when substantive evidence in the case is not reliable, unless
there is evidence to prove payment of bribe or to show that the money
was taken voluntarily as a bribe. Mere receipt of the amount by the
accused is not sufficient to fasten guilt, in the absence of any evidence
with regard to demand and acceptance of the amount as illegal
gratification. Hence, the burden rests on the accused to displace the
statutory presumption raised under Section 20 of the Act 1988, by
bringing on record evidence, either direct or circumstantial, to establish
with reasonable probability, that the money was accepted by him, other
than as a motive or reward as referred to in Section 7 of the Act 1988.
While invoking the provisions of Section 20 of the Act, the court is
required to consider the explanation offered by the accused, if any, only
on the touchstone of preponderance of probability and not on the
touchstone of proof beyond all reasonable doubt. However, before the
accused is called upon to explain how the amount in question was found
in his possession, the foundational facts must be established by the
prosecution. The complainant is an interested and partisan witness
concerned with the success of the trap and his evidence must be tested in
CRA-S-2469-SB of 2004 [8]
the same way as that of any other interested witness. In a proper case, the
court may look for independent corroboration before convicting the
accused person. (Vide: Ram Prakash Arora v. The State of Punjab AIR
1973 Supreme Court 498; T. Subramanian v. The State of T.N.,
2006(1) Apex Criminal 159; State of Kerala and another v. C.P. Rao,
183: (2011) 6 SCC 450; and Mukut Bihari and another v. State of
[Emphasis supplied]
12. The appellant was posted as Patwari. The allegations were that
he demanded Rs.2500/- for correction of Khasra Girdawari regarding
redemption of land of the father of the complainant. The laced currency
notes along with driving licence and other documents were recovered from
the purse of the appellant. The raiding party departed for conducting raid
at 1.30 PM, after signal from the shadow witness, the appellant was
apprehended at 2.15 PM. The complainant did not support the case of the
prosecution and was declared hostile. The other evidence available is to be
analysed for determining the demand and acceptance of illegal gratification.
The deposition of PW14- SI Krishan Kumar (shadow witness) would be
relevant. He had not stated that he heard the conversation between the
complainant and the appellant. He stated “I was also directed to follow the
complainant. The complainant talked with the accused and passed on the
bribe money to the accused while he was sitting on his motor-cycle Hero
13. The testimonies of the official witnesses are on similar lines.
They gave the details of the procedure for laying the trap and for recovery
of the laced currency. It is not the case of the prosecution that members of
the raiding party were privy to the conversation between the complainant
CRA-S-2469-SB of 2004 [9]
and the appellant. There is no evidence to substantiate the demand of illegal
gratification by the appellant.
14. The appellant had taken a defence that he was picked by the
police from his house on 10.3.2002 at 1.00 PM. His wife deposed that her
husband was picked from the house at 1.00 PM. Two Patwaris Jeewan Dass
and Satish Kumar who are the witnesses to the arrest memo Ex.DX were
examined as DW3 and DW4 respectively. As per them, they reached the
police station on 10.3.2002 at 2.00 PM, the appellant was already sitting in
the police station. They were made to sign on blank arrest memo and
further that they received the information around 12.30 to 1.15 PM that the
appellant has been taken by the police officials. It would be appropriate to
mention here that as per prosecution the appellant was apprehended at 2.15
PM. The defence taken by the appellant was substantiated by the
depositions of DW2 to DW4 and creates a dent on the story of the
prosecution. The evidence in the shape of hand wash test and recovery of
the laced currency notes from the purse of the appellant in such
circumstances cannot be made sole basis for proving acceptance of bribe.
On failure to prove acceptance of bribe, presumption under Section 20 of
the Act cannot be drawn against the appellant.
15. On considering the facts and re-appreciating evidence, the
judgment of conviction and order of quantum cannot be upheld on account
of failure of the prosecution to prove the sine qua non for conviction i.e.
demand and acceptance of the illegal gratification.
16. The impugned judgment of the trial court convicting the
appellant and the order of sentence consequent thereto, are hereby set aside.
CRA-S-2469-SB of 2004 [10]
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The Punjab and Haryana High Court recently acquitted a public servant convicted for accepting bribe in a case under Prevention of Corruption Act, 1988, on the ground that evidence of 'demand' and 'acceptance' of bribe was not available.
The appellant, a patwari, in 2004 had appealed against his conviction and sentence under the provisions of Sections 7, 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. It was the case of the appellant that he was falsely implicated and wrongly convicted for the offence of demanding a bribe for allegedly making corrections in land records.
The appellant argued that he was forcibly lifted from his residence along with his motor cycle and the case was foisted upon him while he was in the police station. Furthermore, his case was that the shadow witness had not heard the conversation between the complainant and the appellant and that there was no evidence to support either 'demand' or 'acceptance' of bribe by the appellant.
The case of the prosecution, on the other hand, was that the appellant-patwari demanded a bribe of Rs. 2500 for correction of land records relating to the redemption of the mortgaged land of the father of the complainant. The investigating agency had set up a trap wherein five notes, each of denomination Rs. 500 were marked and laced with Phenolphthalein powder. A Sub Inspector was deputed as a shadow witness to catch the Patwari red-handed.
As per the prosecution, upon a signal from the complainant, the appellant was apprehended and laced currency notes were recovered from a purse kept in the pocket of his pants. The prosecution argued that upon washing the hand, and pocket of pants of the appellant, the colour of the solution turned pink. After grant of prosecution sanction, the challan was filed, charges were framed and the appellant was found guilty by the trial court in November 2004
Justice Avneesh Jhingan in the judgment dated October 17 said the recovery of the tainted currency in itself is not enough for conviction under Section 7 of the PC Act. It is a settled legal position that demand and acceptance has to be proved for conviction under Section 7, the court said.
"The presumption under Section 20 of the Act can be drawn if the acceptance of the amount is proved and for proving the acceptance, demand is pre-requisite. It is also settled that presumption under Section 20 of the Act can be inferred for conviction under Section 7 of the Act and not under Section 13(1)(d) of the Act. The defence taken by the appellant has to be tested on probabilities of preponderance. The onus is not as heavy on the accused as on the prosecution to prove its case beyond reasonable doubt," the court said.
The court placed reliance on the decisions in K. Shanthamma v. State of Telangana, 2022(2) RCR (Criminal) 195, B. Jayaraj v. State of Andhra Pradesh, 2014 (2) R.C.R. (Criminal) 410 and State of Punjab v. Madan Mohan Lal Verma, (2013) 14 SCC 153.
Ruling that there is no evidence to substantiate the demand of illegal gratification by the appellant, the court said appellant had taken a defence that he was picked from his house on 10.3.2002 at 1.00 PM. The statement was corroborated by his wife during the trial.
"Two Patwaris Jeewan Dass and Satish Kumar who are the witnesses to the arrest memo Ex.DX were examined as DW3 and DW4 respectively. As per them, they reached the police station on 10.3.2002 at 2.00 PM, the appellant was already sitting in the police station. They were made to sign on blank arrest memo and further that they received the information around 12.30 to 1.15 PM that the appellant has been taken by the police officials. It would be appropriate to mention here that as per prosecution the appellant was apprehended at 2.15 PM. The defence taken by the appellant was substantiated by the depositions of DW2 to DW4 and creates a dent on the story of the prosecution," said the court.
It further said the evidence in the shape of hand wash test and recovery of laced currency notes from the purse of the appellant in such circumstances cannot be made sole basis for acceptance of bribe. "On failure to prove acceptance of bribe, presumption under Section 20 of the Act cannot be drawn against the appellant," said the court.
The judgment of conviction and order of quantum cannot be upheld on account of failure of the prosecution to prove "the sine qua non for conviction i.e. demand and acceptance of the illegal gratification", Justice Jhingan while setting aside the trial court verdict and order of sentence.
Case Title: Parveen Kumar v. State of Haryana
Case No: CRA-S-2469-SB of 2004
Coram: Justice Avneesh Jhingan
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2. With the consent of the learned advocates appearing for the
respective parties, the petition was taken up for its final
disposal.
3. In this petition, under Article 226 of the Constitution of
India, the prayer of the petitioner is to quash and set aside
the appointment order dated 24.7.2019 of the respondent
No.3 appointing him as Assistant Director of Information
4. The facts in brief indicate that the petitioner possesses
educational qualification of B.Com and Diploma in
Journalism. He had worked as a reporter in Sandesh from
1.4.2008 to 7.10.2009. He then worked with Divyabhaskar
as Senior Reporter. The petitioner was appointed as
Information Assistant, Class III in the department of
Information and Broadcasting of the State on 21.5.2010. He
has been serving on the promotional post of Senior Sub
Editor since 26.12.2018. An advertisement was issued on
5.11.2015 inviting applications for Direct Recruitment to
the posts of Assistant Director of Information (Editorial),
Class II. The petitioner applied for the post. The
recruitment is held by the department and not GPSC.
5. Ms. Harshal Pandya, learned counsel for the petitioner
would submit that the recruitment rules dated 16.2.2015
provide for the rules for recruitment. The Rules through
mistake use the word “Editorial” instead of “Journalism.”
For being eligible for appointment by direct selection, the
candidate must possess the qualification mentioned in rule
4 of the Rules. She would submit that a candidate must
have the requisite qualification so prescribed. The
respondent No.3 does not hold the requisite experience and
therefore the petitioner made a representation on
24.6.2019. According to Ms. Pandya, the respondent No.3
holds a certificate of having worked from November, 2009
to September, 2014 as sub editor in “Namaskar
Publication.” He worked in “Sanj Samachar” which is a
daily newspaper from February, 2014 to August, 2014. She
would therefore submit that simultaneously working in two
publications was improper. Drawing the Court’s attention to
certificate of experience, she would submit that apart from
the certificate having no date, it was owned by one Editor
Kishor Makwana. She would rely on an RTI response to
submit that the Namaskar Magazine was deblocked in the
year 1962. The certificate therefore was bad. She would
therefore submit that over and above the educational
qualification, the respondent No.3 did not possess the
required experience as the magazine Namaskar was run by
an individual entity and, therefore, apart from working at
two places at the same time, the respondent No.3 was not
qualified.
6. Mr. Krutik Parikh, learned AGP appearing for the
respondent - State would submit that as per Rule 4(b)(i) and
4(b)(ii), the respondent was having a Masters Degree in
Journalism. He had experience of approximately three
years, fifteen months and twenty three days working in
`Namaskar Magazine’ and in `Divyabhaskar’ from
9.10.2014 to 31.10.2015. As far as the recruitment done
through the employer department, and not through GPSC,
Mr. Parikh would submit that as per Regulation No.3 of the
GPSC (Exemption from Consultation) Rules, 1960, the
respondent department had got exemption from the
consultation.
7. Mr. Harsh K. Raval, learned counsel appearing for
respondent No.3 would submit that the answering
respondent is working in the field of journalism for the last
more than 14 years and had experience as Sub-Editor in
`Namaskar Magazine’ from November, 2019 to September,
2014 where he was working from 8.00 am. In `Sanj
Samachar’, the respondent No.3 was working from
February, 2014 to August, 2014 in evening hours. The time
period therefore was not overlapping. `Namaskar
Publication’ which was blocked was owned by one Jivraj
Aarya whereas the respondent was working in a different
registration number publication namely; Surya Namaskar.
The experience provided in the Rules was satisfied by the
respondent No.3 as the Rules clearly provided that one
should have combined or separate experience in either of
the entities mentioned in the Rules.
8. Ms. Harshal N. Pandya, learned counsel for the petitioner
relied on the following decisions:
(a) Ramjit Singh Kardam v. Sanjeev Kumar and
others reported in AIR 2020 SC 2060
(b) Meeta Sahai v. State of Bihar reported in
(c) Decision rendered in the case of Dr. Rachita
Vijaykumar Jayswal in SCA No.8631/2020 dated
(d) Thorat Nayan Hemchandra v. State of Gujarat
(e) Mukesh V. Chavda v. State of Gujarat reported
in 2013(1) GLR 265.
9. Mr. Harsh K. Raval, learned counsel appearing for the
respondent No.3 relied on the following decisions:
(a) Chandra Prakash Singh and others v.
Chairman, Purvanchal Gramin Bank and others
(b) Madras Institute of Development Studies and
another v. K. Sivasubramaniyan and others
(c) Jagat Bandhu Chakraborti v. G.C. Roy and
others reported in 2000(9) SCC 739
(d) Amit Raj Yadav v. State of U.P. reported in
(e) Dilip Barman and others v. Md. Mainul Haque
Chowdhury and others reported in 2008(4) SCC 619
(f) Trivedi Himanshu Ghanshyambhai v.
Ahmedabad Municipal Corporation reported in
10. Considering the submissions made by the learned
advocates for the respective parties, to adjudicate upon the
eligibility of the respondent No.3 for being entitled to hold
the post of Assistant Director (Journalism) Class II, it will be
proper to reproduce the relevant Rule namely; Rule 4 of the
Assistant Director of Information (Journalism) Class II
Recruitment Rules, 2015. Rule 4 reads as under:
“4. To be eligible for appointment by direct
selection to the post mentioned in Rule 2, a
(a) Not be more than 35 years of age:
Provided that the upper age limit may be relaxed in
favour of a candidate who is already in the service of the
Government of Gujarat in accordance with the provisions
of the Gujarat Civil Services Classification and
(b) Possess: a post graduate diploma in Journalism
and Mass Communication or a post graduate degree in
Journalism and Mass Communication obtained from any
of the Universities established or incorporated by or
under the Central or a State Act in India, or any other
educational institution recognized as such by the
Government or declared to be deemed as University
under section 3 of the University Grants Commission
Act, 1956; or possess an equivalent qualification
recognized by the Government; and
(i) have about three years experience on the
post not below the rank of Information Assistant,
Class III, in the subordinate service of the
Commissionerate of Information; or
(ii) have about three years combined or separate
experience of Journalism or publicity or public
relation work or organizing exhibition or editing a
daily newspaper or electronic media or periodicals
in the Government or Local Bodies or Government
undertaking Board or Corporation or Limited
Company established under the Companies Act,
1956 or public or private sector daily newspaper
or news agency or electronic media or publicity
organization on the post which can be considered
equivalent to the post nor below the rank of
Information Assistant, Class III, in the subordinate
service of the Commissionerate of Information; or
(II) a degree in Journalism and Mass Communication or a
degree in Journalism obtained from any of the Universities
established or incorporated by or under the Central or a State
Act in India; or any other educational institution recognized as
such by the Government or declared to be deemed as
University under section 3 of the University Grants
Commission Act, 1956; or possess an equivalent qualification
recognized by the Government; and
(i) have about five years experience on the post not
below the rank of Information Assistant, Class III, in the
subordinate service of the Commissionerate of
(ii) have about five years combined or separate
experience of Journalism or publicity or public relation
work or organizing exhibition or editing a daily news
paper or electronic media or periodicals in the
Government or Local Bodies or Government undertaking
Board or Corporation or Limited Company established
under the Companies Act, 1956; or public or private
sector daily newspaper or news Agency or electronic
media or publicity organization on the post which can be
considered equivalent to the post not below the rank of
Information Assistant, Class III, in the subordinate
service of the Commissionerate of Information.
(c) possess the basic knowledge of computer application as
prescribed in the Gujarat Civil Services Classification and
(d) possess adequate knowledge of Gujarati or Hindi or
both.”
11. Reading the Rule makes it clear that an incumbent apart
from holding a post-graduate diploma in Journalism, which
the respondent No.3 possessed should have about 3 years’
combined experience in the Editorial work as under and in
(3) Government Under Taking Board or
(4) Limited Company established under the
12. Nowhere does Recruitment Rule stipulate that it has to be
in only a government or local body or a government
undertaking board or the Corporation or a Company. This
would amount to restrictive reading of the Rule and,
therefore, it cannot be said that the respondent No.3 does
not possess the requisite experience.
13. For the aforesaid reasons, the petition is dismissed. Rule is
discharged. No order as to costs.
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The Gujarat High Court has made it clear that the Assistant Director of Information (Journalism) Class II Recruitment Rules, 2015 nowhere stipulate that Journalism experience necessarily has to be from a government organization for appointment to the post of Assistant Director of Information (Journalism) Class II.
"Nowhere does Recruitment Rule stipulate that it has to be in only a government or local body or a government undertaking board or the Corporation or a Company. This would amount to restrictive reading of the Rule and, therefore, it cannot be said that the respondent No.3 does not possess the requisite experience," Justice Biren Vaishnav observed.
It thus dismissed a petition filed by a journalist challenging the appointment of Respondent no. 3 to the said post.
The brief facts were that the Petitioner possessed a B.Com degree and diploma in journalism. He had worked as a reporter and subsequently, as a senior reporter in certain publications. He also possessed a Master's degree in journalism. Later, he was appointed as an Information Assistant Class III in the department of Information and Broadcasting of the State in 2010. In 2015, he responded to an advertisement inviting applications for the post of Assistant Director of Information (Journalism) Class II. However, the Respondent no.3 herein was declared successful.
The Petitioner contested that Respondent no.3 did not possess requisite experience. It was argued that Respondent no. 3 had worked as sub-editor in a certain publication which was deblocked in 1962 which implied that the certificate was 'bad.' Further, it was submitted that Respondent no. 3 worked at two places simultaneously, which was improper.
Per contra, Respondent No. 3 submitted that he had worked in the field of journalism for more than 14 years and had experience as a sub-editor, as well. Further, though he worked at two places simultaneously, the shifts did not clash and the time period therefore was not overlapping.
After hearing these submissions and upon perusal of the relevant Rules, the Court observed,
"Reading the Rule makes it clear that an incumbent apart from holding a post-graduate diploma in Journalism, which the respondent No.3 possessed should have about 3 years' combined experience in the Editorial work.
Nowhere does Recruitment Rule stipulate that it has to be in only a government or local body or a government undertaking board or the Corporation or a Company.
"
Hence, the petition was dismissed.
Case Title: DARSHAN BIPINBHAI TRIVEDI Versus STATE OF GUJARAT
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The captioned writ petition is filed by the plaintiffs feeling
aggrieved by the order of the learned Judge passed on
I.A.No.13 filed under Order 6 Rule 17 of CPC.
2. The present petitioners have instituted a suit for
partition and separate possession in O.S.No.32/2015 by
specifically contending that suit schedule property are joint
family ancestral properties. The petitioners claim that they
are entitled for 1/5th share in the suit schedule properties.
The petitioners have also sought relief of declaration to
declare that the judgment and decree passed in
O.S.No.61/1998 is not binding on their legitimate share.
Consequently, sale deed dated 26.04.2014 executed by
defendant Nos.1 and 2 in favour of defendant No.6 is also
3. When the matter was set in for further cross-
examination of plaintiffs, the present petitioners/plaintiffs have
come up with this proposed amendment. By way of proposed
amendment, plaintiffs intend to incorporate the pleadings
relating to sale transactions done by defendant No.1 in favour
of defendant No.5. The plaintiffs by way of proposed
amendment want to further plead that judgment and decree
passed in O.S.No.61/1998 is a collusive decree which was
passed on a fraudulent registered sale agreement. The
plaintiffs also intend to plead that there was no legal necessity
for the defendant No.1 to enter into a transaction with
defendant No.5 and further want to plead that defendant No.1
was addicted to vices.
4. The said contention is rejected by the learned
Judge. While rejecting the application filed in I.A.No.13, the
learned Judge was of the view that no sufficient cause is made
out by the plaintiffs while seeking the amendment. The
learned Judge has found fault with the plaintiffs for not
seeking amendment before commencement of trial. The
application filed in I.A.No.13 is rejected by recording a finding
that plaintiffs cannot overcome the admissions elicited in
5. Heard learned counsel appearing for the petitioners
and learned counsel appearing for the contesting respondents.
6. Admittedly, the present suit is one for partition and
separate possession. When the matter was set in for further
cross-examination, the plaintiffs by way of proposed
amendment intend to incorporate para 5(a). In para 5(a),
plaintiffs intend to plead additional pleadings relating to
transactions between defendant Nos.1 and 5. The proposed
amendment does not change the fundamental character of the
suit. It is trite law that all amendments are to be liberally
allowed relegating the parties to substantiate their claim even
in respect of proposed amendment. Thought this Court would
find some laxness on the part of plaintiffs in not seeking
amendment before commencement of trial but, however, to
advance justice, a reasonable opportunity needs to be given to
7. In a partition suit, valuable property rights are
involved. If a property is a joint family ancestral property, it
goes without saying that the members of a joint family have a
pre-existing right and therefore, the Court drawing a
preliminary decree merely declares the pre-existing right. It is
in this background, this Court is not inclined to adopt a hyper
technical approach and decline the plaintiffs in proving their
case by incorporating the proposed amendment. Mere
allowing the amendment application in itself would not amount
to granting the relief sought in the proposed amendment. The
burden still remains on the plaintiffs to establish the claim
made in the proposed amendment.
8. This Court is also of the view that no serious
prejudice will be caused to the respondents/defendants if the
proposed amendment is allowed. The material on record
would also indicate that it is only when a counter claim was
filed by defendant No.4, the Court had to frame additional
issues and therefore, the plaintiffs have sought to amend this
plaint seeking leave to incorporate the proposed para 5(a). As
against this proposed amendment, it is always open for the
respondents/defendants to file additional written statement.
It is always open for the respondents/defendants to lead
rebuttal evidence insofar as proposed amendment is
concerned. Therefore, I am of the view that the order under
challenge is not at all sustainable.
9. Accordingly, I pass the following:
(i) The writ petition is allowed;
(ii) The impugned order dated 28.11.2018
passed on I.A.No.13 in O.S.No.32/2015 is set
aside and consequently, the application is
(iii) The petitioners/plaintiffs are permitted
to amend the plaint.
(iv) The respondents/defendants are
reserved with liberty to file additional written
statement, if they chose to do so.
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The Karnataka High Court has made it clear that a plaintiff's request for amendment of plaint can be considered even after commencement of trial, in case the fundamental character of the suit is not changed and no prejudice is caused to the responding party.
Observing thus, single judge bench of Justice Sachin Shankar Magadum allowed an application filed by a plaintiff under Order 6 Rule 17, in a suit for partition, after the matter was set in for further cross-examination of plaintiffs. It said:
"The proposed amendment does not change the fundamental character of the suit...Mere allowing the amendment application in itself would not amount to granting the relief sought in the proposed amendment. The burden still remains on the plaintiffs to establish the claim made...This Court is also of the view that no serious prejudice will be caused to the respondents/defendants if the proposed amendment is allowed."
Accordingly, it set aside the order passed by the trial court rejecting the application on the ground that the same was moved after commencement of trial.
Case Details:
The petitioners had instituted a suit for partition and separate possession, by specifically contending that suit schedule property are joint family ancestral properties. The petitioners claimed that they are entitled for 1/5th share in the suit schedule properties. The petitioners also sought relief of declaration to declare that the judgment and decree passed in O.S.No.61/1998 is not binding on their legitimate share.
Consequently, sale deed dated 26.04.2014 executed by defendant Nos.1 and 2 in favour of defendant No.6 was also challenged.
When the matter was set in for further cross examination of plaintiffs, the present petitioners/plaintiffs came up with the proposed amendment, whereby they intended to incorporate the pleadings relating to sale transactions done by defendant No.1 in favour of defendant No.5. The plaintiffs by way of proposed amendment wanted to further plead that judgment and decree passed in O.S.No.61/1998 is a collusive decree which was passed on a fraudulent registered sale agreement. The plaintiffs also intended to plead that there was no legal necessity for the defendant No.1 to enter into a transaction with defendant No.5 and further want to plead that defendant No.1 was addicted to vices.
The trial court rejected the application filed by the plaintiff noting that no sufficient cause is made out by the plaintiffs while seeking the amendment. The court found fault with the plaintiffs for not seeking amendment before commencement of trial. The application was rejected by recording a finding that plaintiffs cannot overcome the admissions elicited in cross-examination.
Court findings:
The bench on going through the amendment sought by the plaintiff said, "The proposed amendment does not change the fundamental character of the suit. It is trite law that all amendments are to be liberally allowed, relegating the parties to substantiate their claim even in respect of the proposed amendment."
It added, "Though this Court would find some laxness on the part of plaintiffs in not seeking amendment before commencement of trial but, however, to advance justice, a reasonable opportunity needs to be given to plaintiffs."
Then the court opined that,
"In a partition suit, valuable property rights are involved. If a property is a joint family ancestral property, it goes without saying that the members of a joint family have a pre-existing right and therefore, the Court drawing a preliminary decree merely declares the pre-existing right. It is in this background, this Court is not inclined to adopt a hyper technical approach and decline the plaintiffs in proving their case by incorporating the proposed amendment."
Further the court said, "This Court is also of the view that no serious prejudice will be caused to the respondents/defendants if the proposed amendment is allowed. As against this proposed amendment, it is always open for the respondents/defendants to file additional written statement. It is always open for the respondents/defendants to lead rebuttal evidence insofar as proposed amendment is concerned."
Accordingly it allowed the petition.
Also Read: Amendment Of Pleadings After Commencement Of Trial: SC Explains
Case Title: REKHA & Others versus LALITHAMMA & Others
Case No: WRIT PETITION NO. 55337 OF 2018(GM-CPC)
Date of Order: 13TH DAY OF JUNE, 2022
Appearance: Advocate BASAVANNA.K.M, for advocate M V HIREMATH for petitioner; Advocate RAVINDRA BABU.G, FOR R2 & 3; Advocate SHAILESH, for Advocate C.GOWRISHANKAR, For R4)
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1. This petition challenges the impugned order dated 02.09.2021
passed by the learned Trial Court in case FIR No.207/2016 registered at
police station Tilak Marg titled State vs Dinesh Chand Sharma whereby
an application of the petitioner under Section 311 Criminal Procedure
Code (hereinafter referred as Cr P C) was dismissed.
2. It is the submission of the learned senior counsel for the petitioner
that PW38 Mr.Amit Roy, DCP is an important witness in the present
matter and the erstwhile learned counsel Mr.Siddharth Kashyap had
chosen not to cross examine the said witness despite an opportunity being
granted to him; but thereafter new counsel was appointed and after going
through the record, he was of the view cross examination of PW38 is
necessary, hence an application under Section 311 Cr P C was filed.
Such application of the petitioner was dismissed by the learned Trial
“Accused Sushil Ansal had been facing this trial for long.
He had been represented by his counsel Sh. Siddhartha
Kashyap till a new counsel had taken charge just recently
at the time when final arguments are being addressed on
behalf of the prosecution. It is pertinent to note that Sh.
Siddhartha Kashyap is still his counsel as he is appearing
for him along with the new counsel. Due opportunity to
cross examine PW~38 was afforded to accused Sushil
Ansal and a conscious decision was taken on his behalf to
not to cross examine PW-38. The plea on behalf of the
accused that he is entitled to a full opportunity to defend
himself and accordingly seek further permission to cross
examine PW-38 is baseless in view of the fact that the said
full opportunity has already been granted to accused and
availed by him. The plea of the applicant that the matter is
pending for a considerable period of time and accused
could not contemplate and consider that the matter require
affirmative and positive cross examination of PW-38
appears to be baseless as pendency of matter for long
rather provides ample time and opportunity to mull over
the issue and take appropriate action.
The plea of the applicant that no prejudice would be caused
to the prosecution is fallacious as affording further
opportunity despite availing the same would. cause delay
and thereby defeating the ends of justice. In judgement Shiv
Kumar Yadav Vs GNCT (2016) 2 SCC 402, it was held by
"15 .... While advancement of justice remains
understood that recall can be allowed for the
asking or reasons related to mere convenience.
It has normally to be presumed that the counsel
particularly when a counsel is appointed by
choice of a litigant. Taken to its logical end,
the principle that a retrial must follow on every
consequences on conduct of trials and the
criminal justice system. The witnesses cannot
be expected to face the hardship of appearing
in the court repeatedly, particularly in sensitive
cases such as the present one. It can result in
undue hardship for the victims, especially so,
of heinous crimes, if they are required to
repeatedly appear in court to face cross
The change of counsel and the decision of the new counsel
to cross examine any witness who was not cross examined
by the previous counsel is no ground to exercise power u/s
311. CrPC for recalling the witness where due opportunity
was afforded earlier.
Lastly this is a criminal trial and not a game where, if one
party was afforded any opportunity for recalling any
witness for valid reasons, the other party would ask for
chance as a matter of right without any reason.
Accordingly, considering the totality of the circumstances,
this court is not inclined to exercise power u/s 311 CrPC to
recall PW~38 as no justifiable grounds exists for the same.
Application is accordingly dismissed.”
3. It is the submission of the learned senior counsel for the petitioner
initially the charge sheet was filed against Dinesh Chand Sharma, the
Ahlmad of the Court against whom there were allegations of tempering
and missing of the Court record, but later on supplementary charge sheets
was filed. The second supplementary charge sheet was filed by DCP
Amit Roy (PW38) but the petitioner was never arrayed as an accused by
him and it was only in third supplementary charge sheet prepared and
filed by Inspector R.S. Chauhan, the petitioner herein was summoned as
an accused. Investigating Officer Inspector R S Chauhan who had charge
sheeted the petitioner has since expired, hence it is argued PW38 is the
only Investigating Officer, who needs to be cross examined as to the
seizure of such tempered documents and qua conspiracy. It is also
submitted if the petitioner is allowed to cross examine PW38, it shall not
cause any prejudice to the prosecution. It is further argued PW38 is a
material witness as various documents relating to the petitioner were
seized by him and even otherwise it is the duty casted upon the Court to
safeguard the accused and allow him to examine and cross-examine the
witnesses per Section 165 of the Indian Evidence Act. It is also
submitted petitioner is 84 years of age and could not properly
comprehend as to if the cross examination of PW38 was essential for the
just decision of the case.
4. To buttress his arguments, the learned senior counsel for the
petitioner has referred to Rajaram Prasad Yadav vs State of Bihar (2013)
14 SCC 461 which relates to the power of the Court under Section 311 Cr
“17. From a conspectus consideration of the above
decisions, while dealing with an application under Section
311 Cr.P.C. read along with Section 138 of the Evidence
Act, we feel the following principles will have to be borne
17.1 Whether the Court is right in thinking that the new
evidence is needed by it? Whether the evidence sought to be
led in under Section 311 is noted by the Court for a just
17.3 If evidence of any witness appears to the Court to be
essential to the just decision of the case, it is the power of
the Court to summon and examine or recall and re-examine
any such person.
17.4 The exercise of power under Section 311 Cr.P.C.
should be resorted to only with the object of finding out the
truth or obtaining proper proof for such facts, which will
lead to a just and correct decision of the case.
17.5 to 17.14 xxx”
5. It is thus argued the petitioner need an opportunity of only a day
to cross examine PW38 so that entire facts be brought before the Court
for just decision of the case. It is submitted there are charges of
conspiracy against the petitioner besides other offence and he needs to
rebut such charges by cross examining this witness.
6. The learned senior counsel for the petitioner has referred to an
order dated 16.03.2021 in Anoop Singh vs State Crl.M.C.No.865/2021
wherein this Court had sustained the order dated 06.03.2021 passed by
the learned Chief Metropolitan Magistrate, Patiala House Courts, Delhi
in the present FIR allowing an application under Section 311 Cr P C to
put certain documents, being formal in nature, to PW39. Hence, it is
argued such an order be also passed in this petition too; moreso when
admittedly PW39 was never cross examined on behalf of the petitioner
by his earlier learned counsel.
7. The learned senior counsel for the State submitted the argument of
the petitioner is nothing but a ploy to further delay the matter. He argued
PW38 was examined in detail and his examination rather continued for
15 months running into 27 pages. He was cross examined by each
accused except the present petitioner, to whom also an opportunity was
granted, but his learned counsel Mr.Siddharth Kashyap made a conscious
decision by choosing not to cross examine PW38.
8. Looking on the aspect of delay I may say though the present FIR
was registered in the year 2006, yet the petitioner was summoned on
15.02.2008 on filing of 3rd supplementary chargesheet, which order dated
15.02.2008 was though challenged, but his revision petition was
dismissed on 03.09.2009. The matter was then listed for framing of
charge yet it could not be framed till the year 2014. Yet again revision
was filed against charge but on 12.05.2017 such revision petition was
also dismissed. On 05.03.2018 in W.P.(Crl) No.243/2018 a direction
was rather issued to the learned Trial Court for expeditious trial and to
pronounce the judgment by 30.11.2018. Admittedly, it was not done. Yet
again on 04.12.2018 another direction was issued in that very petition to
fix three dates of hearing per week and to conduct the trial in a time-
bound manner. Per order dated 06.02.2020 passed by this Court in
WP(Crl) No.243/2018 the matter is being monitored by this Court. In the
light of above facts, we need to see the intention to file such application
under Section 311 Cr P C at a deeply belated stage.
9. Some more dates are relevant. Admittedly, the prosecution
evidence was closed on 06.04.2021. Defence evidence was closed on
25.08.2021; and final arguments started w.e.f. 27.08.2021. The
prosecution argued the matter on 27.08.2021, 31.08.2021, 02.09.2021
and 03.09.2021 and thereafter the defence arguments of accused namely
Dinesh Chand Sharma and other two accused started on 04.09.2021,
06.09.2021, 07.09.2021 and 08.09.2021 and matter is still being argued.
It was when the final arguments had started, this application was moved.
10. To appreciate the concern of the petitioner, one needs to see as to
what is the cause for the petitioner to move this application under Section
311 Cr P C. The petitioner has filed an application to cross-examine the
Investigating Officer on specific allegations of conspiracy by putting
certain suggestions and to bring his attention to various material in the
forms of statements under Section 161 Cr PC recorded by the main
Investigating Officer and towards various necessary documents to be
collected or deliberately omitted from being placed on record.
11. Needless to say, the power under Section 311 Cr PC is to be
exercised for strong and valid reasons. One cannot claim any parity in
deciding of an application under Section 311 Cr PC, hence order dated
16.03.2021 of this court in Crl.M.C.865/2021 is of no use to the
petitioner herein. Even otherwise Crl.M.C.865/2021 notes the said
application under Section 311 Cr PC. was moved when the prosecution
evidence was still going on and it was admittedly prior to closure of
prosecution evidence, but, whereas the present application is filed when
final arguments had started. It was at this stage, a new counsel was
appointed in the matter and he thought of cross-examining the
Investigating Officer PW38 by putting him certain suggestions, hence
prayer to recall him.
12. Admittedly, PW38 on the basis of documents filed/seized by him
never considered the petitioner an accused and probably of this reason,
the erstwhile counsel did not prefer to cross examine him. It appeared to
be a conscious decision of the learned counsel for the petitioner,
considering the nature of evidence against him. Not to repeat, his counsel
Mr.Siddharth Kashyap did not cross examine as many as 18 witnesses
viz., he rather adopted the cross examination by other counsels qua PW7,
PW30 and PW32 and preferred not to cross examine PW3, PW4, PW5,
PW39 and PW40. Thus, to recall PW38 to put suggestions to him as his
earlier learned counsel failed to do so cannot be considered a valid
ground for exercise of discretion under Section 311 Cr P C, especially, in
the wake of delay referred to above. Further no necessary documents as
alleged in para 10 above were brought in defence evidence either by the
petitioner.
13. In State (NCT of Delhi) vs Shiv Kumar Yadav & Another (2016)2
“11. It is further well settled that fairness of trial has to be
seen not only from the point of view of the accused, but also
from the point of view of the victim and the society. In the
name of fair trial, the system cannot be held to ransom. The
accused is entitled to be represented by a counsel of his
choice, to be provided all relevant documents, to cross-
examine the prosecution witnesses and to lead evidence in
his defence. The object of provision for recall is to reserve
the power with the court to prevent any injustice in the
conduct of the trial at any stage. The power available with
the court to prevent injustice has to be exercised only if the
court, for valid reasons, feels that injustice is caused to a
party. Such a finding, with reasons, must be specifically
recorded by the court e before the power is exercised. It is
not possible to lay down precise situations when such
power can be exercised. The legislature in its wisdom has
left the power undefined. Thus, the scope of the power has
to be considered from case to case. The guidance for the
purpose is available in several decisions relied upon by the
parties. It will be sufficient to refer to only some of the
decisions for the principles laid down which are relevant
for this case.”
14. In State of Haryana vs Ram Mehar (2016) 8 SCC 136 the Court
“40. In the case at hand, the prosecution had examined all
the witnesses. The statements of all the accused persons,
that is 148 in number, had been recorded under Section
313 CrPC. The defence had examined 15 witnesses. The
foundation for recall, as is evincible from the applications
filed, does not even remotely make out a case that such
recalling is necessary for just decision of the case or to
arrive at the truth. The singular ground which prominently
comes to surface is that the earlier counsel who was
engaged by the defence had not put some questions and
failed to put some questions and give certain suggestions. It
has come on record that number of lawyers were engaged
by the defence. The accused persons had engaged counsel
of their choice. In such a situation recalling of witnesses
indubitably cannot form the foundation. If it is accepted as
a ground, there would be possibility of a retrial. There may
be an occasion when such a ground may weigh with the
court, but definitely the instant case does not arouse the
judicial conscience within the established norms of Section
311 CrPC for exercise of such jurisdiction.
42. At this juncture, we think it apt to state that the exercise
of power under Section 311 CrPC can be sought to be
invoked either by the prosecution or by the accused persons
or by the Court itself. The High Court has been moved by
the ground that the accused persons are in the custody and
the concept of speedy trial is not nullified and no prejudice
is caused, and, therefore, the principle of magnanimity
should apply. Suffice it to say, a criminal trial does not
singularly centres around the accused. In it there is
involvement of the prosecution, the victim and the victim
represents the collective. The cry of the collective may not
be uttered in decibels which is physically audible in the
court premises, but the Court has to remain sensitive to
such silent cries and the agonies, for the society seeks
justice. Therefore, a balance has to be struck. xxx Hence,
we reiterate the necessity of doctrine of balance.”
15. In Girish vs State of UP 2020 SCC OnLine All 1063 and in
Veerendradas Bairagi vs Shreekant Bairagi 2019 SCC OnLine MP 7006
the Court held the subsequently engaged counsel cannot seek one more
opportunity as a matter of right to further delay the matters. Rather the
“9. In the present case, it appears from the application
filed under section 311, Cr.P.C. that request for re-
examination has been made solely on the ground that
Senior Counsel has been engaged in place of a Junior
Counsel as the Junior Counsel, according to the petitioner,
has not conducted the cross-examination of witnesses in an
effective manner. However, in the light of the legal
position, as discussed above, it is certainly not within the
scope of section 311 Cr.P.C. to countenance such a prayer.
No illegality or perversity has been committed by the trial
Court in passing the impugned order.”
16. Thus the consistent view of this Court is a mere change of counsel
would not suffice to recall witness to put certain suggestions in the
manner, the new counsel desires. The petitioner had engaged earlier
counsel of his choice. He made a decision not to cross-examine, not one
but 18 witnesses, probably, because the petitioner is facing charge of
conspiracy only, and hence such decision viz not to cross-examine 18
witnesses cannot be said to an inadvertent act but may be a part of his
strategy. Since considerable delay has taken place, the plight of victim,
also cannot be ignored. The petition being devoid of merits is thus
dismissed. Pending application, if any, also stands disposed of.
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The Delhi High Court has held that a mere change of counsel would not suffice to recall witnesses to put certain suggestions in the manner the new counsel desires. Rejecting an application under Section 311 of Cr.P.C, Justice Yogesh Khanna noted that since considerable delay has taken place, the victim's plight also cannot be ignored while making a decision. He also placed emphasis on...
The Delhi High Court has held that a mere change of counsel would not suffice to recall witnesses to put certain suggestions in the manner the new counsel desires. Rejecting an application under Section 311 of Cr.P.C, Justice Yogesh Khanna noted that since considerable delay has taken place, the victim's plight also cannot be ignored while making a decision. He also placed emphasis on the conscious decision of the former counsel to not examine the said victim, referring to a catena of judicial precedents.
Background
This petition challenges an order of the Trial Court whereby an application of the petitioner under Section 311 Cr. P.C was dismissed.
Senior Advocate N. Hariharan, appearing on behalf of the petitioner, argued that the former counsel has chosen not to cross-examine one of the key victims despite his opportunity. The said victim is an Investigating Officer who prepared the second charge sheet, where the accused was not named. After the appointments of a new counsel, he was of the opinion that the examination of the said witness was necessary, and thus an application under Section 311 Cr. P.C was moved. However, the trial court dismissed the same with the following reasons:
"The change of counsel and the decision of the new counsel to cross-examine any witness who the previous counsel did not cross-examine is no ground to exercise power u/s 311. CrPC for recalling the witness where due opportunity was afforded earlier. Lastly, this is a criminal trial and not a game where, if one party were afforded an opportunity for recalling any witness for valid reasons, the other party would ask for chance as a matter of right without any reason. Accordingly, considering the totality of the circumstances, this Court is not inclined to exercise power u/s 311 CrPC to recall PW~38 as no justifiable grounds exists for the same. Application is accordingly dismissed."
The petitioner further argued that they require only a day to cross-examine the said witness to bring the facts before the Court for a just adjudication of the matter.
Senior Advocate Dayan Krishnan, appearing on behalf of the state, argued that the petitioner's argument is nothing but a ploy to delay the matter further. It is further submitted that the said witness was cross-examined by each accused except for the present petitioner, who had consciously chosen not to examine the witness.
Findings
The Court noted the delay in the present matter, which has been ongoing since 2006. It further inquired into the intention of the accused to file such an application under Section 311 Cr. P.C was at a deeply belated stage when the final arguments had started.
The Court noted that the power under Section 311 Cr. P.C is to be exercised only for solid and valid reasons; there can be no parity in deciding such an application. It further mentioned that the former counsel consciously chose not to examine the present witness among 18 other witnesses. Therefore, to recall the said witness because the former counsel failed to do so is not a ground for exercising discretion under Section 311 Cr.P.C.
The Court referred to State (NCT of Delhi) v. Shiv Kumar Yadav & Anr. (2016) where it was held that,
"The power available with the Court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court e before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The legislature, in its wisdom, has left the power undefined. Thus, the scope of the power has to be considered from case to case. The guidance for the purpose is available in several decisions relied upon by the parties. It will be sufficient to refer to only some of the decisions for the principles laid down which are relevant for this case."
Furthermore, it was discussed that in Girish v. State of Uttar Pradesh (2020) and Veerendradas Bairagi v. Shreekant Bairagi (2019), it had been held that the subsequently engaged counsel could not seek one more opportunity as a matter of right to delay the issues further.
Title: Sushil Ansal v. State of NCT Delhi
Read The Order
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award passed in Motor Accident Claim Petition No.22 of 2010 by the
Motor Accident Claims Tribunal (Auxiliary), Dhrangadhra dated 28 th
November, 2014, by which the Tribunal has dismissed the Claim Petition.
2. The brief facts of the case are as such that, on 26.09.2009, at about
10:00 hours claimant was riding his motorcycle in moderate speed on the
right side of the road going to Halvad. When he reached near Maliya Four
road, at that time, the Opponent No.2 came with his Santro car bearing
registration number GJ-12-P-8428 with full speed and in rash and
negligent manner and collided with the claimant. The Claimant had fallen
down and received grievous and serious injuries. Therefore, the claimant
has filed the Claim Petition to get compensation of Rs.11,00,000/- as he
was earning Rs.1,50,000/- from his agricultural work.
3. The Tribunal has issued notices to the opponents. The Opponent
Nos.1 & 2 have not filed their reply. The Opponent No.3 has appeared
and filed written statement at Exh.19 wherein it has denied averments.
Thereafter, the Tribunal has framed issues for its determination. The
Claimant-Hardasbhai Raymalbhai Gohil has been examined at Exh.17,
Babubhai Raymalbhai Gohil at Exh.22 and Savsibhai Keshabhai at
Exh.23, who are also cross-examined by the rival advocate. The
documentary evidence is also produced on the record; like photo copy of
F.I.R. at Mark 6/1, copy of punchnama at Mark 6/2, copy of statement of
witness at Mark 6/3, copy of injury at Mark 6/4, copy of charge-sheet at
Mark 6/5, copy of R.C. Book at Mark 6/6, copy of driving license at
Mark 6/7, copy of insurance policy at Mark 6/8, copy of disability
certificate at Mark 13/1, copy of Disablement Certificate at Mark 16/1,
copy of discharge card at Mark 16/3, copy of medical certificate at Mark
16/4, copy of city brain report at Mark 16/8 etc. The Tribunal has
thereafter heard arguments of the respective parties and dismissed the
claim petition by holding that it appears that the victim was admitted on
29.09.2009 and the accident occurred on 26.9.2009. Therefore, a question
arises where he was between the dates of 26.09.2009 to 29.09.2009 and
on relying on the deposition of witness at Exh.23 that he has no personal
knowledge about the accident. Therefore, the Tribunal has found that
there is delay in filing F.I.R. of 27 days which is not satisfactorily
explained. Therefore, the Tribunal has considered that there is no
involvement of above stated vehicle by the claimant. Being aggrieved
with this finding, the claimant has preferred the present appeal.
4. Learned advocate Mr. Vishal Mehta appearing for learned advocate
Mr. Mehul S. Shah submitted that the Tribunal has committed gross error
in not following the judgment cited at the bar though the Tribunal has
recorded the judgment in Paras 16 and 17 cited by the rival parties, but
the Tribunal has not properly considered those judgments. He has further
submitted that if Para 16 of the judgment considered then the Tribunal
has noted that the principle of res-judicata cannot be applicable in the
present case as at the time of deciding NFL Application, the question of
involvement of vehicle raised by the Insurance Company. But at that
stage, the Tribunal was not agreed with the submissions of the Insurance
Company but during the trial, sufficient evidences have come on the point
of involvement of vehicle. Therefore, the Tribunal has opined that res-
judicata would not be applied on the facts of the present case. On
perusing the second citation, the Tribunal has found that there is a case of
evidence of two eye-witnesses, moreover, there were reasons to file
complaint in delay here in the present case in cross-examination of the
witnesses evidence are not come on record regarding the number of
involvement. The third citation which is relied by the claimant, it appears
that judgment of Criminal Courts are neither binding on the Civil Court
nor relevant in the civil case or claim for compensation except for limited
purpose. On perusing fourth judgment of the claimant, it appears that
there were delay of four days in filing F.I.R. Moreover, sufficient
evidence are there in the present case as there are 27 days delay in filing
of F.I.R and not only that, examined witnesses have no knowledge
regarding number of involved vehicle. Therefore, the Tribunal has
proceeded further and believed that involvement of vehicle is not
established. Therefore, the Tribunal dismissed the claim petition which is
erroneous as per the submission made by Mr. Shah. He has submitted that
the Tribunal has not properly considered the judgment of Hon’ble Apex
Court in the case of Ravi v. Badrinaryan reported in (2011) 4 SCC 693.
Para 21 of the above judgment is reproduced hereunder :
“21. The purpose of lodging the FIR in such type of cases is primarily to
intimate the police to initiate investigation of criminal offences. Lodging
of FIR certainly proves factum of accident so that the victim is able to
lodge a case for compensation but delay in doing so cannot be the main
ground for rejecting the claim petition. In other words, although lodging
of FIR is vital in deciding motor accident claim cases, delay in lodging the
same should not be treated as fatal for such proceedings, if claimant has
been able to demonstrate satisfactory and cogent reasons for it. There
could be variety of reasons in genuine cases for delayed lodgment of FIR.
Unless kith and kin of the victim are able to regain a certain level of
tranquility of mind and are composed to lodge it, even if, there is delay,
the same deserves to be condoned. In such circumstances, the authenticity
of the FIR assumes much more significance than delay in lodging thereof
supported by cogent reasons.”
Therefore, he has submitted that when there is delay in lodging
F.I.R. of 27 days. It cannot be said that it is unexplained looking to the
injury received by the claimant. The Tribunal has also observed its
impugned judgment that the claimant had received injury prior to his
hospitalization about 23 days. But there is no explanation that before
hospitalization, whether the claimant has taken any treatment or not.
Therefore, the Tribunal has committed error. Mr. Shah has submitted that
the F.I.R., which is lodged on 22.10.2009 by one Babubhai Raymalbhai
Gohil that his brother has received serious injury in head and other parts
of body with the black colour Santro car bearing registration No.GJ-12-P-
8428 . He has stated in the complaint itself that his brother has received
serious injuries in head and he was unconscious. Therefore, they have
taken him to Hospital. Thereafter, he was taken into I.C.U. in sub-
conscious situation and at that point of time, he was not able to lodge the
complaint immediately. But he has given the statement before the
Gandhigram Police Station and at that point of time he was not in a
position to give the registration No. of the Santro car before the
Gandhigram Police Station. Therefore, he has explained the entire
situation. Even then the Tribunal has believed that the claimant has failed
to explain the situation. He has further relied on the judgment reported in
(2020) ACJ 1072 about the involvement of vehicle by relying on paras 7,
11 and 14 of the judgment. He has submitted that Hon’ble High Court has
well discussed aspect of involvement of vehicle in the accident and he has
relied on observation of that judgment which is similar to the facts of the
present case. He has also relied on the judgment of this Court in the case
of Pravinkumar M Bhatt & Anr. vs. Minor Dakshaben R Jasani Thro
Guardian Ramjibhai R Jasani and Anr. reported in 2008 (2) GLH (UJ),
wherein para 3 of the judgment which speaks about that adverse inference
should be drawn when the driver nor the owner of the vehicle in question
has stepped into the witness box then the Tribunal should draw the
adverse inference. He has also relied upon the judgment of Hon’ble
Supreme Court in Anita Sharma and Ors. vs. New India Assurance
Company Ltd. and Anr. reported in (2021) 1 SCC 171, more particularly
paras 20, 21, 22, and 23 where the Hon’ble Supreme Court has discussed
the burden of proof in the case of accident claim cases. He has further
relied on the judgment of Hon’ble Apex Court in Vimla Devi vs. The
National Insurance Company reported in (2019) 2 SCC 186, and on
relying on Paras 16, 25 to 33 he has submitted that involvement of
vehicle, adverse inference as well as non exhibiting the document are
discussed by the Hon’ble Supreme Court and in the present case, all these
Judgments are squarely applicable. But the Tribunal has committed error
in not considering these aspects. Therefore, he has submitted that the
appeal deserves to be allowed by awarding the appropriate amount of
compensation to the claimant.
5. Per contra, learned advocate Mr. Maulik Shelat for the Insurance
Company has submitted that in view of the judgment reported in 2014
lawsuit Gujarat 1399, the present case of the claimant does not require
any consideration. He has relied upon the paras 13 and 15 of the above
judgment and has submitted that there is contradiction in the deposition
of the eye-witness as well as there is a delay in lodging F.I.R. of 27 days
which is not explained. Moreover, in the first version before the police,
complainant has not given registration No. of the Santro car, more
particularly, the Tribunal has correctly found that the conduct of the
claimant does not inspire confidence about the involvement of vehicle.
Therefore, claim petition is rightly dismissed and no interference is
required under the provisions of Section 173 of Motor Vehicles Act.
Therefore, he prays to dismiss the present appeal.
6. I have considered the rival submissions. I have also perused the
record and proceedings. It clearly reveals that the document which is
produced on the record is not exhibited by the Tribunal. It also clearly
reveals that there is some inconsistency in the documentary evidence as
well as oral evidence produced on the record, but in the compensation
cases the Court cannot take strict view when the charge-sheet is also filed
against the driver of the offending vehicle though, the complaint is
admittedly filed after 27 days. But if we look at the F.I.R itself, the
complainant has tried to justify the delay in filing of F.I.R by stating that
he has given some statement before the Gandhigram Police Station when
they have admitted his brother to Virani Wockhardt Hospital. But since
he was admitted in I.C.U. and his treatment was going on, therefore, there
is justification of the circumstances for lodging late F.I.R. Involvement of
vehicle also comes out from the F.I.R. itself where the No. of Santro car
is specifically given by the complainant. It is admitted position that the
claimant has received serious injuries due to the accident. He was taken
to the Virani Wockhardt Hospital and all these aspects are available on
the record. Merely one of the witnesses has said that he has given the
deposition by signing the document without reading and he was not much
aware about which car has caused the accident, is not that much fatal
looking to the judgment of Hon’ble Supreme Court in the case of Anita
Sharma (supra) wherein the aspect of burden of proof is discussed in
detail. It is noteworthy to re-produce the Paras 21, 23 and 24 of that
judgment, which are as under:
“21. Relying upon Kartar Singh (supra), in a MACT case this
Court (1994) 3 SCC 569 Page | 11 in Sunita v. Rajasthan State Road
Transport Corporation 3 considered the effect of nonexamination of the
pillion rider as a witness in a claim petition filed by the deceased of the
motorcyclist and held as follows:
“30. Clearly, the evidence given by Bhagchand withstood the
respondents' scrutiny and the respondents were unable to shake his
evidence. In turn, the High Court has failed to take note of the absence of
cross examination of this witness by the respondents, leave alone the
Tribunal's finding on the same, and instead, deliberated on the reliability
of Bhagchand's (A.D.2) evidence from the viewpoint of him not being
named in the list of eye witnesses in the criminal proceedings, without
even mentioning as to why such absence from the list is fatal to the case
of the appellants. This approach of the High Court is mystifying,
especially in light of this Court's observation [as set out in Parmeshwari
(supra) and reiterated in Mangla Ram (supra)] that the strict principles
of proof in a criminal case will not be applicable in a claim for
compensation under the Act and further, that the standard to be followed
in such claims is one of preponderance of probability rather than one of
proof beyond reasonable doubt. There is nothing in the Act to preclude
citing of a witness in motor accident claim who has not been named in the
list of witnesses in the criminal case. What is essential is that the
opposite party should get a fair opportunity to cross examine the
concerned witness. Once that is done, it will not be open to them to
complain about any prejudice caused to them. If there was any doubt to
be cast on the veracity of the witness, the same should have come out in
cross examination, for which opportunity was granted to the
respondents by the Tribunal.
23. The observation of the High Court that the author of the FIR (as per
its judgment, the ownercumdriver) had not been examined as a witness,
and hence adverse inference ought to be drawn against the appellant-
claimants, is wholly misconceived and misdirected. Not only is the owner-
cumdriver not the author of the FIR, but instead he is one of the
contesting respondents in the Claim Petition who, along with insurance
company, is an interested party with a pecuniary stake in the result of the
case. If the ownercumdriver of the car were setting up a defence plea that
the accident was a result of not his but the truck driver’s carelessness or
rashness, then the onus was on him to step into the witness box and
explain as to how the accident had taken place. The fact that Sanjeev
Kapoor chose not to depose in support of what he has pleaded in his
written statement, further suggests that he was himself at fault. The High
Court, therefore, ought not to have shifted the burden of proof.
24. Further, little reliance can be placed on the contents of the FIR (Exh.-
1) , and it is liable to be discarded for more than one reasons. First, the
author of the FIR, that is, Praveen Kumar Aggarwal does not claim to
have witnessed the accident himself. His version is hearsay and cannot be
relied upon. Second, it appears from the illegible part of the FIR that the
informant had some closeness with the ownercum driver of the car and
there is thus a strong possibility that his version was influenced or at the
behest of Sanjeev Kapoor. Third, the FIR was lodged two days after the
accident, on 27.03.2009. The FIR recites that some of the injured
including Sandeep Sharma were referred to BHU, Varanasi for treatment,
even though as per the medical report this took place only on 26.03.2009,
the day after the accident. Therefore the belated FIR appears to be an
afterthought attempt to absolve Sanjeev Kapoor from his criminal or civil
liabilities. Contrarily, the statement of AW3 does not suffer from any evil
of suspicion and is worthy of reliance. The Tribunal rightly relied upon
his statement and decided issue No. 1 in favour of the claimants. The
reasoning given by the High Court to disbelieve Ritesh Pandey AW3, on
the other hand, cannot sustain and is liable to be overturned. We hold
accordingly.”
Considering the judgment of the Hon’ble Apex court and considering the
facts and circumstances of the present case and looking to the record
where the documentary evidence of treatment and other papers are
available, I found that Tribunal has committed some error in not
considering the evidence available on the record in liberal manner and by
considering the evidence in strict manner. Therefore, I found that this is
the fit case where this Court should exercise under Section 173 of Motor
Vehicles Act by quashing and setting aside the judgment of the Tribunal.
But as the Tribunal has not quantified the amount of compensation, it is a
fit case to remand back the case to the Tribunal for fresh consideration by
giving proper opportunity to the respective parties by adducing any
further evidence, if any, and by considering the rival aspects. Thereafter,
considering the quantum of the compensation appropriately.
7. For the reasons recorded above, the following order is passed:
7.1 The Appeal is allowed to the aforesaid extent, with no order as to
costs, by remanding back the matter to the Tribunal, and by quashing
and setting aside the impugned judgement and award passed by the
Tribunal In M.A.C.P. No. 22 of 2010 dated 28th November, 2014 by the
7.2 The Tribunal shall re-consider the claim petition No.22 of 2010
filed before the Motor Accident Claims Tribunal, Dhrangadhra afresh
after giving proper opportunity to the parties and thereafter, considering
relevant evidence available on the record by quantifying the amount of
7.3 The Tribunal shall conclude this exercise within nine months from
the date of receipt of this order and respective parties shall cooperate with
the Tribunal in proceeding of the present claim petition.
7.4 The record and proceedings be sent back to the concerned Tribunal
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The Gujarat High Court recently directed the Motor Accident Claims Tribunal to consider the claim petition filed by a motor accident victim, even though there was a delay of about 1 month in reporting the matter to the Police.
The direction was passed in a First Appeal filed under Section 173 of the Motor Vehicles Act 1988 challenging dismissal of the claim petition. Attention was drawn to the fact that the victim herein was earning INR 1,50,000 from his agricultural work and therefore the claimants were entitled to get compensation worth INR 11,00,000.
The victim here claimed that he was riding his motorcycle at a moderate speed at the side of the road when the Opponent No. 2 hit the victim with his Santro car while driving in a rash and negligent manner. Consequently, the victim fell down and received grievous injuries.
The Tribunal had observed that there was a delay in filing the FIR of 27 days which was not satisfactorily explained. Further, the victim was admitted to the hospital on 29th of September while the accident occurred on 26th. Therefore, the claim petition was rejected.
In appeal, the claimant averred that the Tribunal had committed a gross error in rejecting the claim petition even though sufficient evidence was attached regarding the involvement of the vehicle of Opponent No. 2. Further, it was submitted that the Tribunal had found that there were two eye-witnesses and the reason for delay in filing complaint was because the witnesses were not ready to come forward.
It was also contested that the judgement of the criminal courts were not binding or relevant on civil cases and hence, the Tribunal should not have disbelieved the victim because of the delay in filing the FIR. The Tribunal was also said to have disregarded the opinion of the Supreme Court in Ravi v. Badrinaryan (2011) 4 SCC 693, where it was held that delay in lodging FIR should not be treated as fatal for motor accident claim cases, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR.
In the instant case, it was claimed that the victim was sub-conscious in the hospital and only filed the FIR post his recovery. Reliance was placed on Anita Sharma and Ors. vs. New India Assurance Company Ltd. and Anr. (2021) 1 SCC 171, Vimla Devi vs. The National Insurance Company and other precedents Vimla Devi vs. The National Insurance Company for the issue of burden of proof in case of accident claim cases. The victim had given his statement before the police station in a fragile state but could not recount the registration number of the Santro car.
Per contra, the Insurance company submitted that there was delay in the lodging of the FIR as well as the statements of the eye-witnesses were inconsistent.
Justice Sandeep Bhatt's foremost observation was that there was clear justification in filing a delayed FIR due to the treatment of the victim. Further, 'merely' one eye witness had stated that he had given his deposition by signing the document without reading and he was not aware of the care which had caused the accident. Per the Anita Sharma judgement of the Supreme Court, this was not a 'fatal' point while discussing the burden of proof.
The High Court observed that though there is some inconsistency in the documentary evidence as well as oral evidence produced on the record, but in the compensation cases the Court cannot take "strict view" when the charge-sheet is also filed against the driver of the offending vehicle though, the complaint is admittedly filed after 27 days.
"If we look at the F.I.R itself, the complainant has tried to justify the delay in filing of F.I.R by stating that he has given some statement before the Gandhigram Police Station when they have admitted his brother to Virani Wockhardt Hospital. But since he was admitted in I.C.U. and his treatment was going on, therefore, there is justification of the circumstances for lodging late F.I.R.
Involvement of vehicle also comes out from the F.I.R. itself where the No. of Santro car is specifically given by the complainant. It is admitted position that the claimant has received serious injuries due to the accident...Merely one of the witnesses has said that he has given the deposition by signing the document without reading and he was not much aware about which car has caused the accident, is not that much fatal."
Thus, the High Court concluded that the Tribunal had committed error in not considering the evidence available in 'strict manner.' Therefore, the matter was remanded back to the Tribunal for fresh consideration while granting the parties an adequate opportunity to adduce further evidence.
Case Title: Hardasbhai Raymalbhai Gohil vs Sanjaybhai Arvindbhai Jabuani
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Case :- CRIMINAL REVISION No. - 2660 of 2022
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Raghawendra Kumar Singh
Counsel for Opposite Party :- G.A.
The present revision has been preferred with a prayer to
allow this revision and quash/set aside the order dated
26.04.2022 passed by learned Additional Sessions Judge-14,
Aligarh in Sessions Trial No.942 of 2022 (State of U.P. Vs.
Gaurav @ Govind) arising out of Case Crime No.74 of 2021,
2. Portal/Pointsman, Mukesh Kumar and Deputy
Superintendent of Police, Hathras Railway Station were
informed on 26.10.2021 about unidentified dead body laid
down near platform no.2, up line to the out post of the G.R.P.
Hathras Junction. The inquest was conducted on the body of
the deceased on 26.10.2021 and Panchnama was prepared
and thereafter the postmortem was also conducted on
26.10.2021, which indicates that the deceased died due to
shock and haemorrhage as a result of antemortem injury.
3. The family members of the deceased reached at the
place of occurrence, where inquest was prepared by the
concerned police station. The report was registered under
Section 174(1) of the Code of Criminal Procedure. After
conducting Panchnama, postmortem report and detailed
accident report were submitted on 26.10.2021. The brother of
deceased, lodged a report on 28.10.2021 mentioning therein
that he had come to Aligarh on 28.10.2021 to take postmortem
report and while he was sitting in waiting room of Aligarh
Railway Station, he heard from one Omjeet @ Chhotu, son of
Kishori Lal that he was sitting in General Bogie of Unchahar
Express from Fafund Railway Station on 25.10.2021, which
was going to Chandigarh, one Gaurav @ Govind, a Mechanic
of Bike met him in the train, after sometime, there was quarrel
at Hathras Railway Station between a boy (deceased) and
Gaurav and the boy was thrown from the train by accused.
4. The first information report was lodged on 28.10.2021,
under Section 302 I.P.C. at G.R.P. Aligarh Junction, Aligarh.
The investigation was conducted and statement of
complainant as well as other witnesses was recorded under
Section 161 Cr.P.C. and charge sheet was filed against the
applicant on 20.12.2021 before the Additional Chief Judicial
Magistrate, Aligarh, under Section 302 I.P.C. The cognizance
was taken and charges were framed.
5. The applicant has challenged the charge sheet dated
26.04.2022, framed by Additional District and Sessions Judge-
6. It has been submitted by Sri Yogendra Singh, learned
counsel for the revisionist that there are two F.I.Rs. in the
present case and two investigations were carried out by the
Police but no police report under Section 173(2) Cr.P.C. has
been submitted before Chief Judicial Magistrate with respect to
the information and the charges have been framed in
pursuance of the second F.I.R., which is not legally
sustainable. He has submitted that for the same cause of
action, it is the second F.I.R., therefore, proceeding initiated for
framing the charge dated 26.04.2022 by the Additional District
and Sessions Judge, Aligarh, is bad in the eyes of law and
according to his submission investigation of second F.I.R. is
bad in the eyes of law, whereas, the first report should be
taken into consideration. He has further submitted that the
materials collected under Section 302 I.P.C. against the
applicant, is based on hearsay witness. He has relied upon the
judgment passed by High Court of Madras (Madurai Bench) in
the case of Manohari Vs. The District Superintendent of Police
reported in 2018 (2) LW (Cri) 522, Rhea Chakraborty Vs. State
of Bihar and others reported in 2020 (0) SC 490 and Radha
Mohan Singh @ Lal Saheb and others Vs. State of U.P.
reported in 2006 (2) SCC 450.
7. On the other hand, Sri Rupak Chaubey, learned A.G.A.
for the State-opposite party has opposed and submitted that
there is only one F.I.R., which was registered on 28.10.2021,
as Case Crime No.74 of 2021, under Section 302 I.P.C., Police
information tendered by Portal/Pointsman, Mukesh Kumar and
police authority dated 26.10.2021 that an unknown dead body
was lying near railway line, cannot be termed as F.I.R. and
therefore, the police authority has rightly chosen not to lodge
the F.I.R. upon receiving such information. He has further
submitted that the preparation of inquest report under Section
174 Cr.P.C. regarding the death of deceased, postmortem
examination and detailed accident report were, in fact, in the
nature of inquiry and it cannot be equated with the
investigation contemplated under Section 157 Cr.P.C. which
commenced after lodging of F.I.R. under Section 154 Cr.P.C.
Moreover, this aspect cannot be considered when the trial has
been commenced and charges have been framed and trial
court bring the evidence on the basis of material on record.
There is ground for presuming that the accused has committed
an offence and the Court framed the charge even strong
suspension based on material on record.
8. Sri Rupak Chaubey, learned A.G.A. has further submitted
that there is statement under Section 161 Cr.P.C. of witness,
namely, Omjeet @ Chhotu, who had stated that he himself had
witnessed the incident, wherein, it is mentioned that the
revisionist had pushed out the deceased from running train
which resulted homicidal death of the deceased. The
statement of other witnesses recorded in the investigation also
support this allegation.
9. Heard Sri Yogendra Singh, learned counsel for the
revisionist and Sri Rupak Chaubey, learned A.G.A. for the
State-opposite party.
10. Section 154 Cr.P.C. deals with information in cognizable
offence for lodging F.I.R. Section 154 Cr.P.C. which stipulates
that there must be an information relating to the commission of
cognizable offence and the information can be termed as
F.I.R., there is particular condition in respect of F.I.R. that there
must be information of cognizable offence. When the
Portal/Pointsman, Mukesh Kumar, Railway Authority, informed
the Police regarding lying of a dead body near railwayline, it
does not disclose commission of any cognizable offence.
Therefore, the said information entered in G.D. cannot termed
as F.I.R. The inquest was conducted in terms of Section 174
Cr.P.C. and police had rightly chosen not to lodge any F.I.R. on
such information. The said view is enunciated in the Judgment
passed by Hon’ble Supreme Court in the case of Patai alias
Krishna Kumar Vs. State of Uttar Pradesh reported in (2010) 4
SCC 429. Paragraph No.16 of the said judgment is relevant
and is quoted below:-
“16. In order for a message or omunication to be
qualified to be a first information report, there must
be something in the nature of a complaint or
accusation or at least some information of the crime
given with the object of settting the police or
criminal law into motion. It is true that a first
information report need not contain the minutest
details as to how the offence had taken place nor it
is required to contain the names of the offenders or
the witnesses. But it must at least contain some
information about the crime committed as also
some information about the manner in which the
cognizable offence has been committed. A cryptic
message recording an occurrence cannot be
termed as a first information report.”
11. Hon’ble Supreme Court has held that the proceeding
under Section 174 Cr.P.C. is for the purpose of discovering the
cause of death, and the evidence taken was very short. When
the body cannot be found or has been buried, there can be no
investigation under Section 174 Cr.P.C. The scrutiny done
under Section 174 Cr.P.C. cannot be equated with the
information under Section 154 Cr.P.C. which is meant for
cognizable offence. Inquiry under Section 174 Cr.P.C. is more
12. The case of inquiry under Section 174 and 154 is
considered in case of Manoj Kumar Sharma and others Vs.
State of Chhattisgarh and another reported in (2016) 9 SCC 1.
Paragraph nos.19, 20, 21 and 22 of the said judgment are
relevant, which are quoted below:-
“19. The proceedings under Section 174 have a
very limited scope. The object of the proceedings is
merely to ascertain whether a person has died
under suspicious circumstances or an unnatural
death and if so what is the apparent cause of the
death. The question regarding the details as to how
the deceased was assaulted or who assaulted him
or under what circumstances he was assaulted is
foreign to the ambit and scope of the proceedings
under Section 174 of the Code. Neither in practice
nor in law was it necessary for the police to mention
those details in the inquest report. It is, therefore,
not necessary to enter all the details of the overt
acts in the inquest report. The procedure under
Section 174 is for the purpose of discovering the
cause of death, and the evidence taken was very
short. When the body cannot be found or has been
buried, there can be no investigation under Section
174. This section is intended to apply to cases in
which an inquest is necessary. The proceedings
under this section should be kept more distinct from
the proceedings taken on the complaint. Whereas
the starting point of the powers of the police was
changed from the power of the officer in charge of a
police station to investigate into a cognizable
offence without the order of a Magistrate, to the
reduction of the first information regarding
commission of a cognizable offence, whether
received orally or in writing, into writing. As such,
the objective of such placement of provisions was
clear which was to ensure that the recording of the
first information should be the starting point of any
investigation by the police. The purpose of
registering FIR is to set the machinery of criminal
investigation into motion, which culminates with
filing of the police report and only after registration
of FIR, beginning of investigation in a case,
collection of evidence during investigation and
formation of the final opinion is the sequence which
results in filing of a report under Section 173 of the
Code. In George v. State of Kerala, it has been held
that the investigating officer is not obliged to
investigate, at the stage of inquest, or to ascertain
as to who were the assailants. A similar view has
been taken in Suresh Rai v. State of Bihar .
20. In this view of the matter, Sections 174 and
175 of the Code afford a complete Code in itself for
the purpose of “inquiries” in cases of accidental or
suspicious deaths and are entirely distinct from the
“investigation” under Section 157 of the Code
wherein if an officer in charge of a police station has
reason to suspect the commission of an offence
which he is empowered to investigate, he shall
proceed in person to the spot to investigate the
facts and circumstances of the case. In the case on
hand, an inquiry under Section 174 of the Code was
convened initially in order to ascertain whether the
death is natural or unnatural. The learned Senior
Counsel for the appellants claims that the earlier
information regarding unnatural death amounted to
FIR under Section 154 of the Code which was
investigated by the police and thereafter the case
was closed.
21. On a careful scrutiny of materials on record,
the inquiry which was conducted for the purpose of
ascertaining whether the death is natural or
unnatural cannot be categorised under information
relating to the commission of a cognizable offence
within the meaning and import of Section 154 of the
Code. On information received by Police Station
Mulana, the police made an inquiry as
contemplated under Section 174 of the Code. After
holding an inquiry, the police submitted its report
before the Sub-Divisional Magistrate, Ambala
stating therein that it was a case of hanging and no
cognizable offence is found to have been
committed. In the report, it was also mentioned that
the father of the deceased, R.P. Sharma (PW 1)
does not want to take any further action in the
matter. In view of the above discussion, it clearly
goes to show that what was undertaken by the
police was an inquiry under Section 174 of the
Code which was limited to the extent of natural or
unnatural death and the case was closed. Whereas,
the condition precedent for recording of FIR is that
there must be an information and that information
must disclose a cognizable offence and in the case
on hand, it leaves no matter of doubt that the
intimation was an information of the nature
contemplated under Section 174 of the Code and it
could not be categorised as information disclosing a
cognizable offence. Also, there is no material to
show that the police after conducting investigation
submitted a report under Section 173 of the Code
as contemplated, before the competent authority,
which accepted the said report and closed the case.
22. In view of the above, we are of the opinion that
the investigation on an inquiry under Section 174 of
the Code is distinct from the investigation as
contemplated under Section 154 of the Code
relating to commission of a cognizable offence and
in the case on hand there was no FIR registered
with Police Station Mulana neither any investigation
nor any report under Section 173 of the Code was
submitted. Therefore, challenge to the impugned
FIR under Crime No. 194 of 2005 registered by
Police Station Bhilai Nagar could not be assailed on
the ground that it was the second FIR in the garb of
which investigation or fresh investigation of the
same incident was initiated.”
13. Section 2 (H) Cr.P.C. includes all the proceedings under
the Code for collection of evidence by a Police Officer or by
any person other than the Magistrate, who is authorised by the
Magistrate. Section 157 Cr.P.C. prescribed the procedure for
investigation. Section 174 deals with the inquest proceeding
upon receiving information by the police that a person has
committed suicide or has been killed in an accident or has died
under circumstances raising suspicion that some other person
has done some offence. The body of inquest proceeding is to
ascertain the apparent cause of death. The inquest
proceedings are in the nature of inquiry in case of accident
which is entirely distincts from investigation under Section 157
Cr.P.C. Under Section 157 Cr.P.C., the Officer in Charge of a
Police Station having reason to suspect the commission of an
offence for which he is empowered to investigate, proceeds on
the spot. The investigation is done by the Police after receiving
information of a cognizable offence and investigation can be
done only under Section 157 Cr.P.C. which results in
submission of police report. However, during the inquest
proceeding, the Police Officer finds commission of cognizable
offence then he can lodge F.I.R. and can investigate further in
terms of Section 157 Cr.P.C.
14. In the present case, the information for cognizable
offence was given by the informant on 28.10.2021 and
thereafter, the police started investigation because act of
commission of murder was disclosed in the F.I.R.
15. Insofar as the charge is concerned, it is framed after
submission of charge sheet which contains the F.I.R. and
statement under Section 161 Cr.P.C., the cognizable offence is
made out and charges have been framed on the basis of the
material collected by the Investigating Officer. While framing
the charge, the court below has to consider prima facie case
even if the Court thinks that the accused might have
committed the offence it would frame the charge at the stage
of framing of charge and probative value of materials on
record, cannot be gone into. Paragraph Nos. 26 to 32 of the
judgment passed by Hon’ble the Supreme Court in the case of
State of Maharashtra and others Vs. Som Nath Thapa and
others reported in (1996) 4 SCC 659, are relevant which are
“26. Shri Ram Jethmalani has urged that despite
some variation in the language of the three pairs of
sections, which deal with the question of framing of
charge or discharge, being relatable to either a
sessions trial or trial of a warrant case or a
summons case, ultimately converge to a single
conclusion, namely, that a prima facie case must be
made out before a charge can be framed. This is
what was stated by a two-Judge Bench in R.S.
Nayak v. A.R. Antulay.
27. Let us note the three pairs of sections Shri
Jethmalani has in mind. These are Sections 227
and 228 insofar as sessions trial is concerned;
Sections 239 and 240 relatable to trial of warrant
cases; and Sections 245(1) and (2) qua trial of
summons cases. They read as below:
“227. Discharge.—If, upon consideration of
the record of the case and the documents
submitted therein, and after hearing the
submissions of the accused and the
prosecution in this behalf, the Judge
considers that there is not sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his
reasons for so doing.
228. Framing of charge.—(1) If, after such
consideration and hearing as aforesaid, the
Judge is of opinion that there is ground for
presuming that the accused has committed
an offence which—
(a) is not exclusively triable by the Court of
Session, he may frame a charge against the
accused and, by order, transfer the case for
trial to the Chief Judicial Magistrate, and
thereupon the Chief Judicial Magistrate shall
try the offence in accordance with the
procedure for trial of warrant-cases instituted
on a police report;
(b) is exclusively triable by the court, he shall
frame in writing a charge against the
(2) Where the Judge frames any charge
under clause (b) of sub-section (1), the
charge shall be read and explained to the
accused and the accused shall be asked
whether he pleads guilty of the offence
charged or claims to be tried.
239. When accused shall be discharged.—If,
upon considering the police report and the
document sent with it under Section 173 and
making such examination, if any, of the
accused as the Magistrate thinks necessary
and after giving the prosecution and the
accused an opportunity of being heard, the
Magistrate considers the charge against the
accused to be groundless, he shall discharge
the accused, and record his reasons for so
240. Framing of charge.—(1) If, upon such
consideration, examination, if any, and
hearing the Magistrate is of opinion that there
is ground for presuming that the accused has
committed an offence triable under this
Chapter, which such Magistrate is competent
to try and which, in his opinion, could be
adequately punished by him, he shall frame
in writing a charge against the accused.
(2) The charge shall then be read and
explained to the accused, and he shall be
asked whether he pleads guilty of the offence
charged or claims to be tried.
245. When accused shall be discharged.—If,
upon taking all the evidence referred to in
Section 244, the Magistrate considers, for
reasons to be recorded, that no case against
the accused has been made out which, if
unrebutted, would warrant his conviction, the
Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to
prevent a Magistrate from discharging the
accused at any previous stage of the case if,
for reasons to be recorded by such
Magistrate, he considers the charge to be
groundless.”
28. Before adverting to what was stated in Antulay
case let the view expressed in State of Karnataka v.
L. Muniswamy be noted. Therein, Chandrachud, J.
(as he then was) speaking for a three-Judge Bench
stated (at SCR p. 119 : SCC p. 704) that at the
stage of framing the charge the court has to apply
its mind to the question whether or not there is any
ground for presuming the commission of the offence
by the accused. As framing of charge affects a
person's liberty substantially, need for proper
consideration of material warranting such order was
29. What was stated in this regard in Stree Atyachar
Virodhi Parishad case which was quoted with
approval in paragraph 78 of State of W.B. v. Mohd.
Khalid is that what the court has to see, while
considering the question of framing the charge, is
whether the material brought on record would
reasonably connect the accused with the crime. No
more is required to be inquired into.
30. In Antulay case Bhagwati, C.J., opined, after
noting the difference in the language of the three
pairs of sections, that despite the difference there is
no scope for doubt that at the stage at which the
court is required to consider the question of framing
of charge, the test of “prima facie” case has to be
applied. According to Shri Jethmalani, a prima facie
case can be said to have been made out when the
evidence, unless rebutted, would make the accused
liable to conviction. In our view, a better and clearer
statement of law would be that if there is ground for
presuming that the accused has committed the
offence, a court can justifiably say that a prima facie
case against him exists, and so, frame a charge
against him for committing that offence.
31. Let us note the meaning of the word ‘presume’.
In Black's Law Dictionary it has been defined to
mean “to believe or accept upon probable
evidence”. (emphasis ours). In Shorter Oxford
English Dictionary it has been mentioned that in law
‘presume’ means “to take as proved until evidence
to the contrary is forthcoming”, Stroud's Legal
Dictionary has quoted in this context a certain
judgment according to which “A presumption is a
probable consequence drawn from facts (either
certain, or proved by direct testimony) as to the
truth of a fact alleged.” (emphasis supplied). In Law
Lexicon by P. Ramanath Aiyer the same quotation
finds place at p. 1007 of 1987 Edn.
32. The aforesaid shows that if on the basis of
materials on record, a court could come to the
conclusion that commission of the offence is a
probable consequence, a case for framing of
charge exists. To put it differently, if the court were
to think that the accused might have committed the
offence it can frame the charge, though for
conviction the conclusion is required to be that the
accused has committed the offence. It is apparent
that at the stage of framing of a charge, probative
value of the materials on record cannot be gone
into; the materials brought on record by the
prosecution has to be accepted as true at that
stage.”
16. The same view has been taken by Hon’ble the Supreme
Court in the case of Bhawna Bai Vs. Ghanshyam and others
reported in (2020) 2 SCC 217. Paragraph nos.16 and 17 of the
said judgment are relevant and are quoted below:-
“16. After referring to Amit Kapoor in Dinesh Tiwari
v. State of U.P., the Supreme Court held that for
framing charge under Section 228 CrPC, the Judge
is not required to record detailed reasons as to why
such charge is framed. On perusal of record and
hearing of parties, if the Judge is of the opinion that
there is sufficient ground for presuming that the
accused has committed the offence triable by the
Court of Session, he shall frame the charge against
the accused for such offence.
17. As discussed above, in the present case, upon
hearing the parties and considering the allegations
in the charge-sheet, the learned Second Additional
Sessions Judge was of the opinion that there were
sufficient grounds for presuming that the accused
has committed the offence punishable under
Section 302 IPC read with Section 34 IPC. The
order dated 12-12-2018 framing the charges is not
a detailed order. For framing the charges under
Section 228 CrPC, the Judge is not required to
record detailed reasons. As pointed out earlier, at
the stage of framing the charge, the court is not
required to hold an elaborate enquiry; only prima
facie case is to be seen. As held in Kanti Bhadra
Shah v. State of W.B., while exercising power under
Section 228 CrPC, the Judge is not required to
record his reasons for framing the charges against
the accused. Upon hearing the parties and based
upon the allegations and taking note of the
allegations in the charge-sheet, the learned Second
Additional Sessions Judge was satisfied that there
is sufficient ground for proceeding against the
accused and framed the charges against the
accused-Respondents 1 and 2. While so, the High
Court was not right in interfering with the order of
the trial court framing the charges against the
accused-Respondents 1 and 2 under Section 302
IPC read with Section 34 IPC and the High Court, in
our view, erred in quashing the charges framed
against the accused. The impugned order cannot
therefore be sustained and is liable to be set aside”
17. Sri Yogendra Singh, learned counsel for the revisionist
has relied upon the judgment of Manohari Vs. The District
Superintendent of Police (supra), the said judgment is not
applicable in the present case. In the said case, the
information under Section 174 Cr.P.C. was given and the Court
has observed that on conclusion of the investigation, the police
shall file a final report under Section 173(2) Cr.P.C. only before
the Jurisdictional Magistrate and not before the Executive
Magistrate. This will apply in both cases, where the final report
is positive report or is a closure report.
18. In the present case, there is only one F.I.R. registered on
28.10.2021, as Case Crime No.74 of 2021, under Section 302
The earlier information by Portal/Pointsman, Mukesh Kumar to
the Police dated 26.10.2021, was an information regarding
unknown dead body lying near railway line which can be
termed as F.I.R. Preparation of inquest under Section 174
Cr.P.C. regarding death of the deceased, postmortem
examination and detailed accident report was in fact in the
nature of inquiry and it cannot be equated with the
investigation contemplates under Section 157 Cr.P.C. which
commenced after lodging of F.I.R. under Section 154 Cr.P.C.
19. In view of the aforesaid discussion, it is obvious that the
F.I.R. lodged on 28.10.2021 for offence which is cognizable,
therefore, investigation was conducted under Section 157
Cr.P.C. The first report dated 26.10.2021 was an information
tendered by Portal/Pointsman, Mukesh Kumar, the railway
authority regarding an unknown dead body which was lying
near railway line and the same cannot be termed as F.I.R. The
preparation of inquest report under Section 174 Cr.P.C.
regarding death of deceased, postmortem examination and
detailed accident report, was in fact, in the nature of inquiry
and it cannot be equated with investigation contemplated
20. The charges have been framed after collecting material
on record and court below had no option but to frame the
21. In view of the aforesaid discussion, the revision lacks
merit and it is dismissed.
Location: High Court of Judicature at
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The Allahabad High Court recently explained the difference between the Section 174 CrPC [Police to enquire and report on suicide, etc.] and Section 157 CrPC [Procedure for investigation preliminary inquiry]. The Court emphasized that the preparation of inquest under Section 174 Cr.P.C. is in fact in the nature of inquiry, and the same cannot be equated with the...
The Allahabad High Court recently explained the difference between the Section 174 CrPC [Police to enquire and report on suicide, etc.] and Section 157 CrPC [Procedure for investigation preliminary inquiry].
The Court emphasized that the preparation of inquest under Section 174 Cr.P.C. is in fact in the nature of inquiry, and the same cannot be equated with the investigation contemplated under Section 157 Cr.P.C. which commences after lodging of F.I.R. under Section 154 Cr.P.C.
The Court observed that Section 174 CrPC has a distinct and specific purpose as it deals with an inquiry into whether a person has committed suicide or has been killed in an accident or has died under circumstances raising suspicion that some other person has done some offence.
On the other hand, the Court clarified, under Section 157 Cr.P.C., the Officer in Charge of a Police Station, having reason to suspect the commission of an offence for which he is empowered to investigate, proceeds on the spot for the purpose of investigation.
The Court opined that the inquiry undertaken under Section 174 is limited to the extent of natural or unnatural death, whereas, the condition precedent for recording of FIR is that there must be an information and that information must disclose a cognizable offence.
Therefore, the Court emphasized that the natured of inquest proceedings under Section 174 CrPC is entirely different from investigation under Section 157 Cr.P.C.
The case in brief
The case pertains to the death of a boy. On October 26, 2021, the Police was informed about an unidentified dead body laid down near platform no.2, up line to the out post of the G.R.P. Hathras Junction. Police reached there and the inquest was conducted on the body of the deceased the same day and Panchnama was prepared and thereafter the postmortem was also conducted on 26.10.2021, which indicated that the deceased died due to shock and haemorrhage as a result of antemortem injury.
The report was registered under Section 174(1) of the Code of Criminal Procedure. After conducting Panchnama, postmortem report and detailed accident report were submitted on 26.10.2021.
Subsequently, on October 28, 2021, an FIR in the case was lodged by the brother of deceased, mentioning therein that he had come to Aligarh on 28.10.2021 to take postmortem report and while he was sitting in waiting room of Aligarh Railway Station, he got to know that the deceased was sitting in General Bogie of Unchahar Express, where he met the accused (Gaurav @ Govind). After sometime, there was quarrel at Hathras Railway Station between a boy (deceased) and Gaurav and the boy was thrown from the train by accused.
The investigation was conducted and statement of complainant as well as other witnesses was recorded under Section 161 Cr.P.C. and charge sheet was filed against the applicant/accused before the Additional Chief Judicial Magistrate, Aligarh, under Section 302 I.P.C.
The cognizance was taken and charges were framed. Challenging the the charge sheet as well as the order of the Additional District and Sessions Judge, Aligarh framing charges against him, the Accused moved to the High Court.
Arguments put forth
The accused argued that the police conducted two investigations in the case, first under Section 174 and thereafter, under Section 157 CrPC. It was argued that charges have been framed in pursuance of the second F.I.R. [lodged at the instance of the borther of the deceased on October 28, 2021], which is not legally sustainable.
Lastly, it was submitted that for the same cause of action, it is the second F.I.R., therefore, proceeding initiated for framing the charge by the court is bad in the eyes of law and the first report (prepared under Section 174 CrPC) should be taken into consideration.
Court's Observations
At the outset, the Court noted that the information given to the Police about the a dead body found near railwayline does not disclose commission of any cognizable offence and therefore, the said information entered in G.D. cannot be termed as F.I.R.
The Court further said that the inquest was conducted in terms of Section 174 Cr.P.C. and thus, the police had rightly chosen not to lodge any F.I.R. on such information as the police was only conducting an inquiry in order to ascertain whether the death is natural or unnatural.
Consequently, the Court noted that in the present case, the information for cognizable offence was given by the informant on October 28, 2021 and thereafter, the police started investigation because act of commission of murder was disclosed in the F.I.R.
"...the F.I.R. lodged on 28.10.2021 for offence which is cognizable, therefore, investigation was conducted under Section 157 Cr.P.C. The first report dated 26.10.2021 was an information tendered by Portal/Pointsman, Mukesh Kumar, the railway authority regarding an unknown dead body which was lying near railway line and the same cannot be termed as F.I.R. The preparation of inquest report under Section 174 Cr.P.C. regarding death of deceased, postmortem examination and detailed accident report, was in fact, in the nature of inquiry and it cannot be equated with investigation contemplated under Section 157 Cr.P.C.," the Court remarked.
Therefore, noting that the charges have been framed after collecting material on record and court below had no option but to frame the charge, the Court dismissed the revision plea.
Case title - Gaurav @ Govind v. State of U.P. and Another
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“What God has joined together, let no one separate” is the sublime ideal read in the Bible
(Matthew 19:6, Mark 10:9). Do spouses in that union have the right to separate their
marriage, mutually, before the aura of the marriage period of one year vanishes, is the
question presented in these matters. Two young Christians are before us. Their marriage
was solemnized on 30.01.2022, in accordance with the Christian rites and ceremonies.
They realised that their marriage was a mistake. The marriage was not consummated.
On 31.5.2022, they moved a joint petition for divorce before the Family Court, Ernakulam,
under Section 10 A of the Divorce Act, 1869 (hereinafter referred to as the “Act”). The
Family Court registry refused to number the same, apparently noting the bar in filing a
joint petition within one year after the marriage, as referrable under Section 10 A of the
Act. The petition was filed under Section 151 of the Code of Civil Procedure. This was
taken up on the judicial side. The Family Court rejected the petition holding that one-year
separation after the marriage is an essential condition to maintain a petition under Section
10A of the Act. Challenging this order, both parties approached this Court in
O.P.No.398/2022. Thereafter, the matter was heard at length. In O.P.No.398/2022, this
Court appointed Advocates Sandhya Raju and Leela R. as amici curiae to assist the
Court. Realising that the bar is created by statute, the couple filed W.P. (
C).No.28317/2022 to declare that the waiting period of one year fixed under Section
10A(1) of the Act is unconstitutional. Both matters were taken up together.
2. Heard the learned counsel Smt.Sikha G. Nair appearing for the petitioners, Amici
curiae Adv.Sandhya Raju and Adv. R Leela and the learned Central Government
3. The Indian Divorce Act was enacted during the British period in the year 1869 to
confer on certain Courts the jurisdiction in matrimonial disputes of persons professing
Christianity. By the Amendment Act 51/2001, the word “Indian” appearing in the name of
the Act had been omitted. The 1869 law was based on the British enactment of 1858 .
The British scrapped the above law in 1923. The Law Commission of India in its 164th
report recommended that the Parliament enact a comprehensive law governing marriage
and divorce and other allied aspects of Christians in India. Based on the recommendation,
the Central Government convened a meeting of prominent leaders of the Christian
Communities in India and Members of Parliament belonging to the Christian community
on 28.4.2001. Based on the understanding arrived at in the meeting, the divorce law was
amended by removing the onerous conditions as contained in Section 10 of the Act and
also doing away with the procedures causing delay in obtaining divorce due to the
provisions contained in Sections 17 and 20 of the Act. One of the salient provisions was
brought in by amendment in the year 2001, namely, the dissolution of marriage by mutual
consent. Section 10A of the Act was inserted as a provision for dissolution of marriage by
mutual consent in addition to Section 10 of the Act, the grounds for dissolution of marriage
on fault basis.
10- A. Dissolution of marriage by mutual consent. -(1) Subject to the provisions of this Act
and the rules made thereunder, a petition for dissolution of marriage may be presented
to the District Court by both the parties to a marriage together, whether such marriage
was solemnized before or after the commencement of the Indian Divorce ( Amendment)
Act, 2001, on the ground that they have been living separately for a period of two years
or more, that they have not been able to live together and they have mutually agreed that
the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of
presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn by both the parties in the
meantime, the Court shall, on being satisfied, after hearing the parties and making such
inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the
petition are true, pass a decree declaring the marriage to be dissolved with effect from
the date of decree.
As seen from Section 10A of the Act, a petition for dissolution of marriage can be
presented to the Court under Section 10A only on the ground that the parties to the
marriage have been living separately for a period of two years or more and that they have
not been able to live together.
4. A Division Bench of this Court in Saumya Ann Thomas v. The Union of India
and others [MANU/KE/0255/2010] held that the stipulation of a period of two years as
the minimum mandatory period under Section 10A is arbitrary and oppressive and the
period of two years has to be read as one year. This was taking note of the oneyear period
stipulated in Section 28(1) of the Special Marriage Act, Section 13B(1) of the Hindu
Marriage Act and Section 32B(1) of the Parsi Marriage and Divorce Act.
5. There are three types of theories that have been recognised for the separation of
a legal marriage, (i)fault theory, (ii) irretrievable breakdown theory and (iii) no-fault basis
(mutual consent).
6. Divorce by mutual consent reflects the will of the parties to separate and get rid of
the marriage. The legislature has put safeguards against impulsive decisions that may
permeate such a decision by stipulating a gestation period before presenting a petition
for divorce on mutual consent. This period will insulate possible peril that may ensue for
the parties as a follow-up of the decision for mutual separation. In the Indian social
context, though marriages are solemnized by two individuals, it is seen more as a union
for laying the foundation for a strong family and society. Many laws have been made and
many rights have been created based on familial relationships. The legislature, therefore,
decided that a minimum period of separation must precede before presentation of a
petition for divorce on the ground of mutual consent.
7. The problem presented in this case is when the waiting period itself would cause
hardship to the parties. Can the law command parties to sit at the fence and suffer the
agony? The legislature in its wisdom contemplated possible repercussions of such
fixation of minimum period that would result in hardships to spouses and accordingly
allowed the Courts to entertain a petition within the minimum period in exceptional cases.
This is how Section 29 of the Special Marriage Act and Section 14 of the Hindu Marriage
Act, enabled the Courts to entertain the petition to be presented before one year had
lapsed from the date of marriage. There is no corresponding provision in the Divorce Act
for the Court to permit the dissolution of marriage by mutual consent until the mandatory
period of one year has lapsed from the date of separation. The constitutional validity of
the mandatory period is, therefore, questioned in the writ petition filed by the parties. This
Court in Saumya's case (supra) had no occasion to advert to the validity of the minimum
mandatory period by which spouses are denied the remedy of approaching the Court
before the lapse of one year from the date of marriage or from the date of separation. The
reasoning of the Court found in paragraph 42 of the above judgment reads thus:
42. Having considered all the relevant circumstances, we are of the opinion that the
stipulation of a higher period of two years of mandatory minimum separate residence for
those to whom the Divorce Act applies, in contradistinction to those similarly placed to
whom Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Divorce Act
and Sec.28 of the Special Marriage Act would apply, offends the mandate of equality and
right to life under Arts.14 and 21 of the Constitution.
The above reasoning of the Court would clearly show that the decision rendered and the
conclusion arrived at was on a premise that the mandatory minimum residence period of
two years for Christians is discriminatory as there is no such prescription of two years
under the Hindu Marriage Act and the Special Marriage Act etc. This Court, however,
considers the question in these cases on a different ground; whether in the absence of
any provisions allowing the parties to a marriage to move the Court before the lapse of
one year from the date of marriage or the date of separation. Can the provisions stand
the test of constitutional scrutiny? The plea of arbitrariness would arise in this context of
denial of judicial remedy to approach the Court before the lapse of one year from the date
of marriage or separation.
8. Men have free choice to enter into marriage. However, the same freedom is not
accorded to the men to separate the marriage. The State's interference in marriage
through legislation is on the assumption that men are ill-equipped to take a decision for
themselves and the State is competent to take decisions by taking note of the welfare,
needs, interests etc. of men. Legal paternalism is often justified with beneficial intent
which is sought to be secured through legislation, regulation etc. From a liberal
perspective, any encroachment on an individual's right to take a decision would be viewed
as an encroachment on personal liberty. But in our constitutional scheme, the
competency of a legislature to make laws for the common good, keeping in mind the
social context and the larger community interest cannot be termed as an encroachment
on personal liberty. The ideal of the constitution itself is to create a society of values.
These values represent the ethos of society, invalidation of liberty affecting the lives of
others, to promote the welfare and common good of the persons involved in relationships.
John Stuart Mill in his book 'On Liberty', Chapter IV - 'Of The Limits To The Authority Of
Society Over The Individual' discussed the problem relating to controlling the behaviour
of individuals. The author says, “The distinction here pointed out between the part of a
person’s life which concerns only himself, and that which concerns others, many persons
will refuse to admit. How (it may be asked) can any part of the conduct of a member of
society be a matter of indifference to the other members? No person is an entirely isolated
being; it is impossible for a person to do anything seriously or permanently hurtful to
himself, without mischief reaching at least to his near connections, and often far beyond
them. If he injures his property, he does harm to those who directly or indirectly derived
support from it, and usually diminishes..”
9. The harm likely to cause others is something that bothered the legislature to fix a
mandatory minimum period to present a petition for mutual divorce. We would not have
thought of interfering with a minimum period as it carries a laudable object behind it. But
we are constrained to note that no remedy is provided by statute in exceptional and
depraved conditions for a spouse to approach the Courts to get rid of the minimum period.
The legislature in their wisdom felt that some provisions are to be made to relax the rigour
of the minimum period to entertain a petition within the waiting period of separation in
other statutes. This essentially ensures that efficacious judicial remedy is provided in
cases of exceptional hardships to the parties. The denial of such a remedy to Christians
bothers us. The Court must circumvent from entering into the domain of legislature by
providing measures of relaxation. Individual liberty when curtailed, the Court has to
examine whether the law was passed to further any common good or to protect the larger
interest of the parties. We have already found that there is a rationale behind fixing the
oneyear waiting period. We also note that the very idea of fixing the waiting period before
the presentation is also intended to be secured after the presentation of such a divorce
petition. The Court after presentation under Section 10A(2) of the Act is bound to allow
the parties to think on their decision of mutual separation. The provision states that the
parties shall be given an opportunity to withdraw the petition not earlier than six months
after the date of presentation of the petition. However, we find that the mandate of Section
10A(1) will become oppressive if the parties are not given the option to highlight hardships
and exceptional hardships they may experience during the waiting period. The right to a
judicial remedy if curtailed by statutory provisions, the Court will have to strike it down as
it is violative of a fundamental right. The right to life encompasses judicial remedy as well.
Article 8 of the Universal Declaration of Human Rights declares that everyone has the
right to an effective remedy by the competent national Tribunals for acts violating
fundamental rights granted by the constitution or by law. The legislature in other statutes,
having felt the need for relaxation, to redress exceptional circumstances through judicial
remedy, cannot remain in oblivion when concerning the Christian community. Ronald
Dworkin, in his famous book 'Taking Rights Seriously' argues that, ”Individual rights are
political trumps held by individuals. Individuals have rights when, for some reason, a
collective goal is not a sufficient justification for denying them what they wish, as
individuals, to have or to do, or not a sufficient justification for imposing some loss or injury
upon them.” [Introduction Pg.(xi)]. The collective good we find as rationale cannot trample
on the rights of individuals to depart if his or her need to depart is not relatable to the
collective good. We are not holding that the law is discriminatory because of the reason
that different communities in equal circumstances are given different treatment. Law
intends to apply to a particular class or group and that group is not homogeneous with
certain classes or groups being excluded, compelling the legislature to make different
laws for each group. We are of the firm view that when liberty is taken away to act
according to one's will, without any procedure to safeguard the fallout of such restrictions,
the law will become oppressive. But for the legislation, parties would be able to separate
themselves. The legislature cannot take away liberty without adequately safeguarding the
interest of the individuals whose interests to seek remedy are affected even if such
legislation intends to achieve laudable objects.
10. Section 10 of the Divorce Act permits divorce on fault grounds. It is possible for a
spouse to file a petition for divorce without any waiting period. The Court may be able to
grant a divorce even before the period of one year, on being satisfied with the ground for
divorce. One of the grounds to obtain a divorce is willful non-consummation of marriage.
On recognizing the existence of this ground on the basis of fault, one may be able to
obtain a divorce from the Court by not contesting the same. However, if they have shown
wisdom, to avoid stigma, the Court cannot permit to move the petition without the lapse
of a period of one year after separation. This exactly is the dilemma and hardship for the
parties in these cases.
11. We hold that the fixation of the minimum period of separation of one year as
stipulated under Section 10A is violative of the fundamental right and accordingly, strike
it down.
12. We have interacted with the parties who came online before us on the last hearing
date. They also had appeared before the earlier Bench which heard the matter. On both
occasions, they were firm in their decision to separate. In view of the fact that more than
six months have lapsed since the presentation of the petition for divorce before the Court,
we find no further reason for their appearance before the Family Court again.
13. Before parting with the judgment, we hasten to observe that the Legislature’s
competence to enact laws to regulate divorce cannot be doubted as it has an avowed
intention to uphold the common good and welfare of the people and society. The State
knows what is best for the couple and the community. The grounds of divorce on a fault
basis have regulated divorce but in a practical sense, it has resulted in hardships rather
than in promoting welfare. The impact of welfare objectives must reflect on the parties.
Today, the Family Court has become another battleground, adding to the agonies of
parties seeking a divorce. This is obvious for the reason that the substantial legislation
enacted prior to Family Courts Act was fashioned on a platform to adjudicate upon
adversarial interests rather than to promote the common interest or good. The time has
come for a change in the law applicable to the parties on a common uniform platform.
The law differentiates parties based on religion in regard to welfare qua matrimonial
relationship. In a secular country, the legal paternalistic approach should be on the
common good of the citizens rather than based on religion. The State’s concern must be
to promote the welfare and good of its citizens, and religion has no place in identifying
the common good. The Union Government should seriously consider having a uniform
marriage code in India to promote the common welfare and good of spouses in
matrimonial disputes. The legislation on divorce must focus on the parties rather than the
dispute itself. In matrimonial disputes, the law must aid parties to resolve the differences
with the assistance of the Court. If a solution is not possible, the law must allow the Court
to decide what is best for the parties. The procedure for seeking divorce shall not be to
aggravate the bitterness by asking them to fight on preordained imaginary grounds.
14. In the result, these cases are disposed of with the following:
i. W.P.(C).No.28317/2022 is allowed declaring that the stipulation of the one-year
period or more for the purpose of filing a divorce petition by mutual consent under Section
10A is violative of fundamental right and is declared unconstitutional.
ii. O.P.(FC).No.398/2022 is allowed. The Family Court is directed to number the
petition presented by the petitioners seeking divorce on mutual consent and dispose of
the same within two weeks in the light of interaction we had with the parties before us and
to grant a decree of divorce without insisting further presence of parties.
We record our appreciation to Amici curiae Adv.Sandhya Raju and Adv. R Leela.
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The Kerala High Court on Friday said that the Union Government should seriously consider having a uniform marriage code in India in order to promote the common welfare and good of spouses in matrimonial disputes.
The Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said the law at present differentiates parties on the basis of their religion, when it comes to matrimonial relationships.
"In a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion. The State's concern must be to promote the welfare and good of its citizens, and religion has no place in identifying the common good," said the court.
The court said while the legislature's competence to enact laws to regulate divorce could not be doubted, the "grounds of divorce on a fault basis" that have regulated divorce, in a practical sense has resulted in hardships rather than in promoting welfare. It added that impact of welfare objectives must reflect on the parties.
"Today, the Family Court has become another battleground, adding to the agonies of parties seeking a divorce. This is obvious for the reason that the substantial legislation enacted prior to Family Courts Act was fashioned on a platform to adjudicate upon adversarial interests rather than to promote the common interest or good. The time has come for a change in the law applicable to the parties on a common uniform platform".
The Court made the observations in its decision on a petition challenging the fixation of the minimum period of separation of one year under Section 10A of the Divorce Act, 1869 as being violative of Fundamental Rights.
It further added that legislation on divorce must focus on parties than on the dispute itself.
"In matrimonial disputes, the law must aid parties to resolve the differences with the assistance of the Court. If a solution is not possible, the law must allow the Court to decide what is best for the parties. The procedure for seeking divorce shall not be to aggravate the bitterness by asking them to fight on preordained imaginary grounds".
Advocates Sikha G. Nair, Sandhya K. Nair, Anjana Suresh E., and Beena N. Kartha appeared on behalf of the petitioners. Deputy Solicitor General of India S. Manu appeared on behalf of the Union Government. Advocates Sandhya Raju and Leela R. were appointed as the Amicus Curiae in the instant case.
Case Title: Anup Disalva & Anr. v. Union of India
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This petition has been filed to direct the Sessions Judge Special
Court for Exclusive Trial under POCSO Act, Chennai, to receive the application
filed under Section 167(2) of Cr.P.C., in Crl.M.P.SR.No.337 of 2021 and
entertain the same and release the petitioner on default bail in Crime No.6 of
2021 on the file of the respondent Police.
2. The petitioner/A2 in Crime No.6 of 2021, which was registered
for the offence under Sections 10 r/w 9(1) (m) (n) and Section 17 of POCSO
Act and Section 506(ii) of IPC based on the complaint dated 12.04.2021. The
petitioner was arrested on 23.04.2021 and remanded to Judicial Custody on
3. The gist of the complaint is that the defacto complainant is a
singer by profession and the victim girl is her daughter. Due to her professional
requirement, she left her daughter under the care and custody of her sister/A4
from the age of 6 years. While the victim girl was under the care and custody of
A4, she was subjected to sexual assault and harassment by A1, who is A4's
husband, A2/the petitioner herein, a Pastor in a Church, and A3, relative of A1.
The victim was subjected to harassment till the age of 15 years. But A4, the
maternal aunt of the victim girl, was a silent spectator. During January 2020, the
victim girl unable to bear the sexual assault and harassment informed her
mother defacto complainant through neighbour's mobile. Immediately, defacto
complainant, the mother of the victim girl, took the victim girl with her. During
her stay with her mother, the victim was found uneasy. When she was examined
by a psychologist, the victim girl narrated the sexual assault committed on her
from the age of six. Based on which, the mother of the victim girl lodged a
complaint and a case was registered against the petitioner and 3 others. The
petitioner was arrested on 23.04.2021 and remanded on 24.04.2021.
4. The contention of the petitioner is that he moved a bail
application in Crl.M.P.No.459 of 2021 on merits. The Trial Court by order
dated 04.05.2021, dismissed the same for the reason statement of the victim girl
not yet recorded and the investigation is at the preliminary stage. Thereafter, the
petitioner moved a bail application before this Court in Crl.O.P.No.9099 of
2021. When the case was taken up for hearing, it was reported that the victim
girl tested positive for Covid-19 and hence delay in recording 164 Cr.P.C.
statement. Later, on 22.06.2021, the bail application was dismissed as
withdrawn. Subsequently, the petitioner filed statutory bail application in
Crl.M.P.No.562 of 2021 under Section 167(2) of Cr.P.C since charge sheet was
not filed even after expiry of 60 days. Alteration report filed on 25.06.2021
which is on 62nd day. However, the same was dismissed for the reason, offence
committed involves Section 6 of POCSO as per 164 Cr.P.C., statement received
on 18.06.2021. Thereafter, the petitioner filed second statutory bail application
in Crl.MP.SR.No.337 of 2021 on 22.07.2021, the same was not entertained and
returned for the reason that only 89 days completed as on 22.07.2021.
5. In this case, alteration report was filed after filing of the first
statutory bail application. The Lower Court relied on the judgment of the
Bombay High Court in the case of Kapil Wadhawan, wherein it was held that
the Court has to apply its mind at every stage from remand till framing of
charges. Further, the power of Court is very wide to determine, as to whether
the report to be filed was within 90 days or 60 days and dismissed the same. In
this case, the alteration report not filed in time, till expiry of both statutory
period. Further, 164 Cr.P.C., statement of the victim girl was recorded on
10.06.2021, received by the trial Court on 18.06.2021, it was contended that
164 statement disclose, commission of offence under Section 6 of POCSO Act.
Further, Trial Court gives yet another reason that initial complaint of the defacto
complainant, discloses the offences punishable under Section 6 of POCSO Act.
Hence, Trial Court dismissed the first statutory bail of the petitioner/accused,
even though First Information Report was registered only under Section 10 and
17 of POCSO Act, despite final report was not filed within the statutory period
of 60 days.
6. Thereafter, the petitioner once again filed 2nd statutory bail
application in Crl.MP.SR.No.337 of 2021 on 22.07.2021 and the same was not
entertained and returned for the reason that only 89 days was completed as on
7. The learned counsel for the petitioner submitted that the
petitioner was arrested on 23.04.2021 and remanded to judicial custody on
24.04.2021, statutory bail application in Crl.MP.SR.No.337 of 2021 was filed
on 22.07.2021. Though the application was filed after 90 days of remand, the
Trial Court wrongly returned the application as “not maintainable”, for the
reason only 89 days completed. According to the learned counsel, the date of
remand has to be included while considering the statutory bail application. If the
date of remand is included, 90 days would be completed on 22.07.2021 and
hence, the petition filed under Section 167(2) Cr.P.C is maintainable.
8. In support of the contention of the petitioner, the learned counsel
relied upon the judgment of the Hon'ble Apex Court in the case of Chaganti
Satyanarayana and others Vs. State of Andhra Pradesh, reported in 1986
SceJ 001, wherein the Apex Court held that the date of remand has to be
included. The learned counsel for the petitioner also referred to the judgment of
Uday Mohanlal Acharya, on this point.
9. The learned counsel further stated that Article 21 of the
Constitution of India provides that “no person shall be deprived of his life or
personal liberty except according to procedure established by law.” and the
same was settled by a Constitution Bench of this Court in Maneka Gandhi Vs.
Union of India reported in (1978) 1 SCC 248.
10. The learned counsel also relied upon the case of Rakesh
Kumar Paul Vs. State of Assam, reported in (2017) 15 SCC 67, wherein it is
held that the Court should not be too technical in matters of personal liberty.
11. The Division Bench of the State of Maharashtra in the case of
Hitendra Vishnu Thakur, held that unless the Court grants extension in time
based on the report of the Public Prosecutor, the designated Court under TADA
would have no jurisdiction to deny the accused his indefeasible right to default
bail if the accused seeks and is prepared to furnish the bail bonds as directed by
the Court.
12. The learned counsel further referred to the judgment of the
Apex Court in the case of Enforcement Directorate, Government of India,
Vs. Kapil Wadhawan & Another etc., wherein it is held that while computing
the period of 90 days or 60 days for default bail as contemplated in Section
167(2) (a) (ii) of the Cr.P.C., whether the day of remand is to be included or
excluded, the concerned Court may take a decision on this issue depending
upon the judgments brought before the notice of the Court. Further, directed the
Registry to place all the relevant documents before the Hon'ble Chief Justice for
constituting a bench of at least 3 judges to resolve the conflict in law on the
issue of grant of default bail.
13. The learned counsel for the petitioner further submitted that
Rule 6 (8) in the Criminal Rules of Practice reads as follows:
“6(8) In computing the period of 15 days
mentioned in Sub-Section (2) of Section 167 or the first
proviso to sub-section (2) of Section 309 of the Code,
both they day on which the order of remand is made and
the day on which the accused is ordered to be produced
before the Court, should be included in Judicial Form
Nos.14 and 25, respectively.” This Court which has been
stated that the date of remand is to be included while
calculating the period of remand under Section 167(2) of
14. In view of the same, the trial Court in rejecting the statutory
bail application on its own interpretation on 28.06.2021, wound amount to
defeating the rights of the accused. The Apex Court time and again held that the
indefeasible rights of the accused should be protected. The enactment of
Section 167(2) Cr.P.C., is the safeguard for default bail contained in the
provision thereto is intrinsically linked to Article 21.
15. The learned Additional Public Prosecutor filed his objection
that the victim's statement was recorded under Section 164 of Cr.P.C., on
10.06.2021 and the same was received by the trial Court on 18.06.2021. The
statutory bail application was filed on 24.06.2021. The perusal of 164 Cr.P.C.,
statement of the victim discloses the offence is punishable under Section 6 of
POCSO Act and hence, non filing of alteration report in time is not a ground to
consider the statutory bail.
16. He further submits that the accused was arrested on
23.04.2021 and remanded on 24.04.2021. The petitioner filed first bail
application under Section 167(2). The trial Court rightly rejected the same since
164 statement disclosed offence under Section 6 of POCSO Act is attracted.
Thereafter, alteration report was filed on 25.06.2021. Subsequently, the
petitioner filed second statutory bail application under Section 167(2) of Cr.P.C.
on 22.07.2021, contending that even after expiry of 90 days, charge sheet not
filed. In this case, charge sheet was filed on 23.07.2021. According to the
learned Public Prosecutor, the date of remand to be excluded which is clearly
held in the case of M.Ravidran Vs. Intelligence Officer, Directorate of
Revenue, Intelligence. But the petitioner wrongly included the date of remand,
hence, the trial Court rightly rejected the statutory bail application.
17. Considering the submissions made by the learned counsels
appearing on either side and on perusal of the materials, it is seen that the case
in Crime No.6 of 2021 registered on 22.04.2021, the petitioner is arrayed as A2
for offence under Sections 10, 9(i), 9(m) 9(n) 17 of POCSO Act and Section
506(ii) of IPC. The petitioner filed a bail application before the Trial Court on
merits in Crl.M.P.No.459 of 2021, and it was dismissed on 04.05.2021.
Thereafter, the petitioner filed bail application before this Court in
Crl.O.P.No.9099 of 2021 and the same was dismissed as withdrawn on
18. Thereafter, the petitioner filed first statutory bail application in
Crl.M.P.No.562 of 2021. The Trial Court while considering the said application
placing reliance on the decision of Bombay High Court in the case of Kapil
Wadhawan, wherein it was held that the concerned Court has sufficient power
to examine whether the period of filing final report is 90 days or 60 days.
19. In the present case, Trial Court considered the 164 statement of
the victim girl, found that Section 6 of POCSO Act gets attracted, hence
assumed the statutory period as 90 days. On such assumption, the Trial Court
dismissed the statutory bail application, even though FIR was registered only
under Sections 10 r/w Section 9 (i) (m) (n) and Section 17 of POCSO Act, and
the accused was remanded for the said offences only. The accused was arrested
and remanded on 23.04.2021, charge sheet ought to be filed within 60 days that
is on or before 22.06.2021, admittedly alteration report filed on 25.06.2021. On
the contrary, Lower Court on its own, assumed Section 6 of POCSO Act gets
attracted and dismissed the first statutory bail petition on 28.06.2021, which is
not proper.
20. Subsequently, the petitioner once again filed 2nd statutory bail
application in Crl.MP.SR.No.337 of 2021 on 22.07.2021 and the same was not
entertained for the reason that only 89 days completed as on 22.07.2021 and
returned the statutory bail application on 26.07.2021. The petitioner resubmitted
the petition giving calculation of 90 days;
Date of remand 24.04.2021,
21. The petitioner admittedly was arrested on 23.04.2021 for the
offence under Sections 10 r/w Section 9 (i) (m) (n) and Section 17 of POCSO
Act and Section 506(ii) of IPC, the petitioner was remanded on 24.04.2021. It
is seen that in the remand order, Section 6 of POCSO Act is not found. The
alteration report was filed on 25.06.2021. Admittedly, charge sheet not filed till
22.06.2021, hence accused entitled for mandatory bail. The trial Court in its
order in Crl.MP.No.562 of 2021 dated 28.06.2021, on its own, gives reason that
164 statement of the victim girl dated 10.06.2021, was received by the trial
Court on 18.06.2021 and the statement reveals commission of offence under
Section 6 of POCSO Act. In the First Information Report, remand report and in
remand order, there is no mention of inclusion of Section 6 of POCSO Act.
Admittedly, in this case, the accused was not remanded under Section 6 of
POCSO Act. Likewise, the alteration report with Section 6 of POCSO Act filed
only on 25.06.2021, the date of considering the first statutory bail application is
on 22.06.2021 on that date, no charge sheet filed. Hence, this Court is of the
view that the order passed by the Magistrate dismissing the first statutory bail in
Crl.M.P.No.562 of 2021 on 28.06.2021 is not proper.
22. The prayer now sought for in this petition is to consider and
direct the Special Judge to grant statutory bail, in Crl.M.P.SR.No.337 of 2021.
The Hon'ble Apex Court in the case of Sanjay Dutt vs. State through C.B.I.
cited supra clarified that when the accused promptly exercised his right under
Section 167(2) and indicated his willingness to furnish bail, no reason to deny
bail. Further held that the accused cannot be detained in custody on account of
subterfuge of the prosecution in filing a police report or additional complaint on
the same day, for reason the bail application is filed. Thus, when 60 days default
bail was filed, no alteration report filed, the petitioner is entitled for statutory
bail which is an accrued and indefeasible right. The Hon'ble Apex Court in the
case of Bikramjit Singh v. The State of Punjab reported in 2020 10 SCC 616,
reiterated and confirmed the right of accused and principles and guidelines to be
followed while considering statutory/default bail under Section 167(2) Cr.P.C,
by referring to various decisions of Apex Court, and the relevant portions are
extracted hereunder:-
"27. The second vexed question which arises on the facts of this case is
the question of grant of default bail.
20. .....with approval to the law laid down in Rajnikant
Jivanla Patel v. Intelligence Officer, Narcotic Control Bureau,
New Delhi reported in 1989 (3) SCC 532, wherein it was held
“9. ...13...The right to bail under Section 167(2)
proviso (a) thereto is absolute. It is a legislative
command and not court's discretion. If the
investigating agency fails to file charge- sheet before the
expiry of 90/60 days, as the case may be, the accused in
custody should be released on bail. But at that stage,
merits of the case are not to be examined. Not at all. In
fact, the Magistrate has no power to remand a person
beyond the stipulated period of 90/60 days. He must
pass an order of bail and communicate the same to the
accused to furnish the requisite bail bonds.”
21. ...No other condition like the gravity of the case,
seriousness of the offence or character of the offender, etc., can
weigh with the Court at that stage to refuse the grant of bail to an
accused under Sub-Section (4) of Section 20T TADA on account of
the “default” of the prosecution.
29. ... The majority judgment of G.B.Pattanaik, J. reviewed the
decisions of this Court and in particular the enigmatic expression "if already
not availed of: in Sanjay Dutt. The Court Court then held: (Uday Mohanlal
Acharya Case, SCC pp. 469-70 & 472-74, para 13)
13 .......We are of the considered opinion that
an accused must be held to have availed of his right
flowing from the legislative mandate engrafted in the
proviso to sub-section (2) of Section 167 of the Code
if he has filed an application after the expiry of the
stipulated period alleging that no challen has been
filed and he is prepared to offer the bail that is
ordered, and it is found as a fact that no challan has
been filed within the period prescribed from the date
of the arrest of the accused........
application and indicates in the application to offer
bail on being released by appropriate orders of the
Court then the right of the accused on being released
on bail cannot be frustrated on that the Magistrate
erroneously refuses to pass an order and the matter
is moved to the higher forum and a challan is filed in
interregnum.
33. ...This was stated in Rakesh Kumar Paul Versus State of Assam
reported in (2017) 15 SCC 67:-
39. ...This Court also noted that apart from the
possibility of the prosecution frustrating the
indefeasible right, there are occasions when even the
Court frustrates the indefeasible right. Reference was
made to Mohd. Iqbal Madar Sheikh Vs. State oif
Maharashtra, wherein it was observed that some
Courts keep the application for “default bail”
pending for some days so that in the meantime a
charge sheet is submitted. While such a practice both
on the part of the prosecution as well as some
Courts must be very strongly and vehemently
discouraged, we reiterated that no subterfuge should
be resorted to, to defeat the indefeasible right of the
accused for “default bail”during the interregnum
when the statutory period for filing the charge sheet
or challan expires and the submission of the charge
sheet or challan in Court."
23. In the above decisions, the Hon'ble Supreme Court held the
fact that the appellant filed yet another application for “default bail” would not
mean that this application would wipe out the effect of the earlier application
that had been wrongly decided. The dictum therefore is that in the matters of
personal liberty of an accused not to be too technical and be in favour of
personal liberty. The right to default bail, as has been correctly held by the
judgments of this Court, are not mere statutory rights under the first proviso to
Section 167(2) of the Code, but is part of the procedure established by law
under Article 21 of the Constitution of India, which is, therefore, a fundamental
right granted to an accused person to be released on bail once the conditions of
the first proviso to Section 167(2) are fulfilled. Hence, this Court is inclined to
grant bail to the petitioner.
24. This Court for the second contention as regards in dealing the
second statutory bail, it is not in dispute that the accused was remanded on
24.04.2021. The petitioner made second statutory bail application on
22.07.2021, which was returned stating 89 days only completed and thereafter,
it was represented. The bone of contention in this petition is whether the date
of remand to be included or excluded. The Criminal Rules of Practice 2019,
Rule 6 (8) clarifies the same, the date of remand to be included. Further, the
Apex Court in view of conflicting decisions, in the case of Enforcement
Directorate, Government of India, Vs. Kapil Wadhawan & Anr. Etc., (cited
supra), directed the concerned Court to take decision on the issue whether date
of remand to be included or excluded while considering the statutory period
under Section 167(2) and entitlement of default bail, on its own by framing
questioning of law. The Criminal Rules of Practice framed by this Court in Rule
6(8), mandates including the date of remand. As the facts placed herein clearly
show that within 90 days, the charge sheet not filed. Admittedly, the charge
sheet was filed on 23.07.2021. Therefore, the petitioner is entitled for statutory
bail and the same is granted.
25. The petitioner is ordered to be released on bail on executing his own
bond for a sum of Rs.10,000/- (Rupees Ten thousand only), before the
Superintendent of the Central Prison, Puzhal. Thereafter on his release, the
petitioner shall execute two sureties for a sum of Rs.10,000/- (Rupees Ten
Thousand only) each, before the learned Special Court for Exclusive Trial under
POCSO Act at Chennai, within 15 days from the date of lifting of the lock down
and the commencement of the Court’s normal functioning, failing which the bail
granted by this Court shall stand dismissed automatically.
(a)the petitioner to appear before the trial Court on all
hearing dates.
(b)the sureties shall affix their photographs and left thumb
impression in the surety bond and the Magistrate may obtain a
copy of their Aadhar card or Bank pass Book to ensure their
(c) the petitioner shall not tamper with evidence or witness
either during investigation or trial;
(d) the petitioner shall not abscond either during
investigation or trial;
(e) on breach of any of the aforesaid conditions, the
learned Magistrate/ Trial Court is entitled to take appropriate
action against the petitioner in accordance with law as if the
conditions have been imposed and the petitioner released on bail
by the learned Magistrate/Trial Court himself as laid down by the
Hon'ble Supreme Court in P.K.Shaji Vs. State of Kerala [(2005)
(f)if the accused thereafter absconds, a fresh FIR can be
registered under Section 229-A IPC.
25. With the above directions, this Criminal Original Petition is
allowed.
1.The Sessions Judge Special Court for Exclusive
Trial under POCSO Act, Chennai.
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The dictum in the matters of personal liberty of an accused is not to be too technical and be in favour of personal liberty, the court observed.Reiterating that the date of remand will be computed while considering an application for statutory bail, Madras High Court observed that the right to default bail is part of the procedure established by law under Article 21 of the Constitution, hence an indefeasible fundamental right.The single-judge bench of Justice M. Nirmal Kumar was considering the plea by a POCSO accused, seeking...
Reiterating that the date of remand will be computed while considering an application for statutory bail, Madras High Court observed that the right to default bail is part of the procedure established by law under Article 21 of the Constitution, hence an indefeasible fundamental right.
The single-judge bench of Justice M. Nirmal Kumar was considering the plea by a POCSO accused, seeking directions to the Special Court For Exclusive Trial under POCSO Act to grant default bail on an application filed under Section 167(2) CrPC.
Placing reliance on Bikramjit Singh v. The State of Punjab, 2020 10 SCC 616 and Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, the court also held that,
"... the fact that the appellant filed yet another application for "default bail" would not mean that this application would wipe out the effect of the earlier application that had been wrongly decided. The dictum, therefore, is that in the matters of personal liberty of an accused not to be too technical and be in favour of personal liberty. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled."
The court also referred to Sanjay Dutt vs. State through C.B.I (1994) to further add that once the accused has exercised the right to default bail under Section 167(2) and expressed his willingness to furnish bail, then that person can't be denied bail on account of prosecution deceivingly filing a police report or additional complaint on the same day. Therefore, when an application for bail is submitted after 60 days in a case and no alteration report has been filed till then, the accused will be entitled to his indefeasible right to statutory bail, the court clarified.
In the case at hand, the accused also filed a second statutory bail plea that was declined by the Special Court citing that only 89 days had elapsed since the accused was remanded in judicial custody. However, the High Court pointed out that the Criminal Rules of Practice 2019, Rule 6 (8) specifies that the date of remand must be included while considering a bail application. The single-judge bench also referred to Enforcement Directorate, Government of India, Vs. Kapil Wadhawan & Anr, LL 2021 SC 118 to bolster this position in law when the charge sheet has not been filed within 90 days.
Based on the above reasons, the court granted bail to the accused upon executing his own bond before the Superintendent of Puzhal Central Prison and executing two sureties for the sum of Rs 10,000 before the Special Court for Exclusive Trial under POCSO Act, Chennai. The two sureties must be executed within 15 days from lifting of lockdown and the commencement of court's normal functioning.
Background
In a POCSO case that pertains to sexual assault and harassment inflicted on a girl child for over a time span of 9 years, the four accused includes her uncle, a pastor from the Church and another relative of the uncle alleged to have been involved in the crime. According to the prosecution, the maternal aunt who was the caretaker of the now 15-year-old child has also been a silent spectator to the atrocities committed. The commission of the offence by the accused came into light when her own mother (de facto complainant) took the child to a psychologist for consultation.
The second accused in the case, a pastor, was booked for offences under Sections 10 r/w 9(1) (m) (n) and Section 17 of POCSO Act and Section 506(ii) of IPC based on the complaint dated 12th April, 2021. The petitioner was arrested on 23rd April, 2021 and remanded to Judicial Custody on 24th April, 2021. Though the petitioner accused filed a statutory bail application on 22nd June since the charge sheet was not filed even after 60 days, it was dismissed by the Special Court citing the reason that the offence under Section 6 of the POCSO Act has been made out from the statement of the girl child under Section 164 CrPC received on 10th June. Therefore, relying on the decision of the Bombay High Court in the case of Kapil Wadhawan, the special court held that it has sufficient power to examine whether the period of filing the final report is 90 days or 60 days. However, the alteration report came to be filed only on 25th June, i.e, after 62 days.
The second statutory bail application was filed on 22nd July which was again dismissed by the trial court by excluding the day of remand while computing the mandatory 90 day period. The refusal to grant bail on the above-ground became a bone of contention before the High Court.
In addition to the above, the court has noted in its order that the lower court erred in assuming on its own that Section 6 of the POCSO Act will be attracted based on the Section 164 CrPC Statement of the girl child:
"It is seen that in the remand order, Section 6 of POCSO Act is not found... The trial Court in its order in Crl.MP.No.562 of 2021 dated 28.06.2021, on its own, gives reason that 164 statement of the victim girl dated 10.06.2021, was received by the trial Court on 18.06.2021 and the statement reveals commission of offence under Section 6 of POCSO Act. In the First Information Report, remand report and in remand order, there is no mention of inclusion of Section 6 of POCSO Act... Likewise, the alteration report with Section 6 of POCSO Act was filed only on 25.06.2021, the date of considering the first statutory bail application is on 22.06.2021. On that date, no charge sheet was \ filed. Hence, this Court is of the view that the order passed by the Magistrate dismissing the first statutory bail... is not proper."
Case Title: R. Henry Paul v. the State of Tamil Nadu
Case No: Crl.O.P.No.14316 of 2021
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2.The petitioner aspires to become a Doctor. He wrote NEET and
scored 409 marks. He was not selected in the first round of counselling.
He was however kept on waiting list. On 07.04.2022 at about 07.30
P.M, he received a text from the second respondent through SMS to
register before 10.00 P.M. The petitioner is a resident of Narikudi village
in Thiruvidaimaruthur Taluk, Thanjavur District. He tried to register his
name. Due to poor internet connectivity, the petitioner was unable to
register his name on the portal immediately. Even if the connectivity
was good, the One Time Password (OTP) was not generated from the
portal in time. The OTP was obtained only at 10.31 P.M through SMS.
When he entered the password, the server was busy and there was
buffering. It became a Sivarathiri for the petitioner. All his efforts went
in vain.
3.The petitioner learnt that persons who scored as low as 108
marks in NEET were allotted seats under the management quota. Since
the efforts of the petitioner did not yield result, he filed the present writ
petition.
4.The counter affidavit filed by the respondents does not deal with
the allegations made by the writ petitioner. The counselling details and
the cut off mark prescribed for each round has been set out and it is
stated that the petitioner could not be allotted to even in the extended
mop up round in the final round of counselling for management quota.
It is also clarified that the last date of counselling for admission to MBBS
course is 28.04.2022 and that the counselling process for the academic
year 2021-2022 has already been completed and that there are no
vacancies. The stand of the respondents that the petitioner has not
secured the requisite marks cannot be accepted. If the petitioner's
mark was below the cut off mark, obviously, he could not have been
called for counselling. The petitioner has placed material before this
Court that the persons who have secured marks lower than the
petitioner had been allotted seats. The categories, to which the said
students who got selected belong, have not been indicated. In the
counter affidavit filed by the respondents, the basic case projected by
the petitioner has not at all been controverted.
5.I have to sustain the stand of the respondents that it is not
possible to direct the admission of the petitioner for any medical
course for the academic year 2021-22 though the writ petition was filed
in April 2022 itself. But can the issue of digital divide raised by the
petitioner go unanswered? The petitioner belongs to a Most Backward
Community. He hails from a remote village. For the marks obtained by
him, he was entitled to get admission in a medical course under
management quota. He failed to get a seat only because of online
glitches. Had the respondents adopted a dual mode of counselling, i.e.
both physical and online, the situation could have been avoided. Had
the respondents given the petitioner reasonable time to register himself
in the portal, then probably, he could have made it. These “ifs” haunt
me. What can the court do in such circumstances when the student is
not at fault ? I can direct the respondents to reconsider the mode of
selection in the light of the experience undergone by the petitioner
herein so that such incidents do not occur in future. Of course, that
would be no consolation to the petitioner.
6.What do the precedents say? The Hon'ble Supreme Court in the
decision reported in (2012) 7 SCC 389 (Asha v. P.T.B.D.Sharma
University of Health Sciences and ors) observed as follows :
“33.This brings us to the last phase of this case as
to what relief, if any, the Appellant is entitled to. Having
returned a finding on merits in favour of the Appellant,
the Court has to grant relief to the Appellant even, if
necessary, by moulding the relief appropriately and in
accordance with law. This Court must do complete justice
between the parties, particularly, where the legitimate
right of the Appellant stands frustrated because of
inaction or inappropriate action on the part of the
concerned Respondents. In fact, normally keeping in view
the factual matrix of this case, we would have directed
the admission of the Appellant to the MBBS course in the
academic year 2011-2012 and would further have
directed the Respondents to pay compensation to the
Appellant towards the mental agony and expense of
litigation and the valuable period of her life that stands
wasted for failure on the part of the Respondents to
adhere to the proper procedure of selection and
admission process. May be the Court would have granted
this relief subject to some further conditions. .....”
Though in that case, on account of the conduct of the appellant, relief
could not be granted, it was held that wherever the court finds that
action of the authorities has been arbitrary, contrary to the judgments of
this Court and violative of the Rules, Regulations and conditions of the
prospectus, causing prejudice to the rights of the students, the Court
shall award compensation to such students. This was re-affirmed by the
Full Bench of the Hon'ble Supreme Court in (2020) 17 SCC 465
(S.Krishna Sradha v. State of Andhra Pradesh and ors.)
“9...(iv) Grant of the compensation could be an additional remedy but
not a substitute for restitutional remedies. Therefore, in an appropriate case the
Court may award the compensation to such a meritorious candidate who for no
fault of his/her has to lose one full academic year and who could not be granted
any relief of admission in the same academic year.”
7.Digitisation is the road ahead. It should lead to empowerment
and not deprivation. The ground reality is that there is a digital divide in
the society. The Hon'ble Supreme Court had observed in Special Leave
to Appeal (C) No(s).4351/2021 dated 08.10.2021 (Action Committee
Unaided Recognized Private Schools v. Justice for All) observed
“4....The digital divide has produced stark inequality in
terms of access to education. Children belonging to EWS/DG
suffer the consequence of not being able to fully pursue
their education and many may have to drop out because of
a lack of access to internet and computers....”
If on account of the digital divide, a student is deprived of an
entitlement, the State is obliged to compensate him. I, therefore,
direct the respondents to pay a sum of Rs.1.00 lakh as compensation to
the petitioner herein within a period of eight weeks. I also direct the
respondents to ensure that the selection process is conducted and
finalized in such a way so as to ensure that incidents such as the one on
hand do not recur. The writ petition is disposed of accordingly. No
costs.
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State obliged to compensate students deprived of entitlement on account of digital divide, Court said.Observing that digitisation should lead to empowerment and not deprivation, the Madras High Court recently directed the Director of Medical Education and its Selection Committee to award a compensation of Rs. 1 lakh to a student who failed to register himself for the NEET counselling process due to technical glitches and poor internet connectivity in his village, thereby losing...
Observing that digitisation should lead to empowerment and not deprivation, the Madras High Court recently directed the Director of Medical Education and its Selection Committee to award a compensation of Rs. 1 lakh to a student who failed to register himself for the NEET counselling process due to technical glitches and poor internet connectivity in his village, thereby losing admission prospects.
The Madurai Bench of Justice GR Swaminathan observed that the state had an obligation to compensate a student who was deprived of his entitlement due to "digital divide". The court also directed the Department to ensure that the selection procedure is conducted in such a way so that incidents like these do not occur in future.
If on account of the digital divide, a student is deprived of an entitlement, the State is obliged to compensate him. I, therefore, direct the respondents to pay a sum of Rs.1.00 lakh as compensation to the petitioner herein within a period of eight weeks. I also direct the respondents to ensure that the selection process is conducted and finalized in such a way so as to ensure that incidents such as the one on hand do not recur. The writ petition is disposed of accordingly.
In the present case, the Petitioner who had scored 409 marks in the NEET Examination could not register his name for counseling on time due to poor internet connectivity. Even when the connectivity was good, the One Time Password was not generated on time. The petitioner later learned that persons who scored as low as 108 marks were also allotted seats under the management quota. Thus, he approached the high court.
The respondent department, on the other hand, contended that the counselling for the academic year 2021-2022 has already been completed and that there was no vacancies. Though they also contended that the Petitioner had not obtained the requisite marks to be considered for counseling, the court was not inclined to support that contention. The court observed that if the petitioner's marks was below the cut off, he would not have even been called for counseling.
The court agreed with the respondent that no direction could be issued to direct the admission of the petitioner for any medical course for the academic year 2021-22. At the same time, the court felt it necessary to address the digital divide which had caused this situation.
The court observed that the Petitioner was eligible to get admission for the marks obtained by him and he failed only because of online glitches. This situation could have been avoided if the respondents had adopted a dual mode of counselling, i.e. both physical and online. Thus, it directed the respondents to reconsider the mode of selection in the light of the experience undergone by the petitioner so that such incidents do not occur in the future.In addition, the court relied on the decision in Asha v. Pt.B.D.Sharma University of Health Sciences and ors which was confirmed by a full bench in S.Krishna Sradha v. State of Andhra Pradesh and ors. wherein the court had held that wherever the court finds that action of the authorities has been arbitrary, contrary to the judgments of this Court and violative of the Rules, Regulations and conditions of the prospectus, causing prejudice to the rights of the students, the Court shall award compensation to such students. Thus, the court deemed it fit to direct respondents to compensate the petitioner.
Case Title: K.Lal Bhagadhur Sasthri v. The Director of Medical Education and another
Case No: W.P(MD)No.7294 of 2022
Counsel for the Petitioner: Mr. D. Srinivasaraghavan for Mr.S.M.Mohan Gandhi
Counsel for the Respondents: Mr. V. Om Prakash, Government Advocate
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ivil Appeal No. 2967 of 1986.
From the Judgment and Order dated 28.7.1986 of the Allahabad High Court in W.P. No. 1793 of 1980.
Satish Chandra, R.B. Mehrotra, S.K. Mehta, Atul Nanda and Aman Vachher for the Appellant.
J.M. Khanna, R.B. Misra and Ms. Anil Katiyar for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and order of the High Court of Allahabad dated July 28, 1986 dismissing the appellant 's petition under Article 226 of the Constitution challenging the order of the Commissioner Varanasi Division dated February 13, 1980 setting aside the order of Municipal Board, Jaunpur appointing the appellant as Tax Inspector.
The Municipal Board, Jaunpur issued advertisement invit ing applications for appointment to the post of Tax Inspec tor.
The advertisement stated that the existing employees of the Revenue Department of the Municipal Board were eligible for consideration along with outsiders.
Hari Mohan Respond ent No. 3 who was the senior most Tax Collector working in the Municipal Board, Jaunpur was called for interview but he refused to appear for the interview on the plea that the post of Tax Inspector should have been exclusively filled by promotion and as he was the seniormost Tax Collector he should be promoted without considering any outsider.
The Municipal Board ignored, his claim and selected the appel lant, and appointed 204 him to the post of the Tax Inspector by the order dated 11.3.78.
Respondent No. 3 thereafter filed a claim petition before the Services Tribunal constituted under the U.P. Public Services Tribunals Act, 1976 but subsequently he withdrew the same on 23.12.79.
Thereafter he filed a repre sentation to the Prescribed Authority i.e. the Commissioner Varanasi challenging appellant 's appointment to the post of Tax Inspector.
The Commissioner by his order dated 13.2.80 set aside the order of the Municipal Board and cancelled the appellant 's appointment on the ground that the Respondent No. 3 was entitled to promotion in pursuance to the direc tions contained in the Government Order dated 10.4.50.
The appellant filed a writ petition under Article 226 of the Constitution before the High Court challenging the order of the Commission.
A learned Single Judge (B.D. Agarwal, J.) of the High Court of Allahabad dismissed the writ petition and affirmed the order of the Commissioner on the findings that the appellant 's appointment was made in violation of the Government Order dated 10.4.50.
Hence this appeal.
After heating learned counsel for the parties at length we are of the opinion that the High Court committed manifest error in upholding the order of the Commissioner.
The basic question which arises for consideration is whether the post of Tax Inspector, under the provision of the U.P. Municipal ities Act, 1916 (hereinafter referred to as the 'Act ') or any rules framed thereunder or under the Government Order dated 10.4.1950 the post of Tax Inspector was required to be filled by promotion only and not by direct recruitment.
The Prescribed Authority i.e., the Commissioner as well as the High Court both proceeded on the assumption that the Govern ment Order dated 10.4.50 had been issued by the State Gov ernment in exercise of its supervisory powers under section 71 of the Act and as such it was binding on the Municipal Board, and the directions contained therein required the Municipal Board to fill up the post of Tax Inspector exclusively by promotion and not by direct recruitment.
In making the appellant 's appointment as a direct recruit, the Municipal Board acted in violation of the directions contained in the aforesaid Government Order, therefore, the appellant 's appointment was rendered illegal.
The High Court upheld the order of the Prescribed Authority on these findings.
Learned counsel for the appellant urged that the directions con tained in the Government Order dated 10.4.50 were ultra vires the State Government 's powers under section 71 of the Act.
He placed reliance on Ramesher Prasad and Other vs Municipal Board, Pilibhit, AIR 1958 All. 363.
The learned counsel further urged that the aforesaid decision was approved by two other learned Judges of the High Court in 205 Ram Kripal Garg vs State of U.P., Writ Petition No. 4556 of 1965 dated 16.9.66 and Inder Bahadur vs Municipal Board, Mirzapur and Others, Writ Petition No. 235 of 1970 dated 20.10.72 holding that the Government Order dated 10.4.50 was ultra vires.
These decisions were placed before the learned Single Judge but he did not agree with the view taken in the aforesaid decisions instead he took a contrary view in holding that the Government Order dated 10.4.50 was valid and it required the Municipal Board to fill up the post of Tax Inspector only by promotion.
It is well settled princi ple of judicial discipline as has been reiterated in a number of decisions of this Court that if a. Single Judge, disagrees with the decision of another Single Judge, it is proper to refer the matter to a larger Bench for an authori tative decision.
But in the instant case the learned Judge acted contrary to the well established principles of judi cial discipline in ignoring those decisions.
Section 71 of the Act before its amendment in 1964 did not confer power on the State Government to issue any direc tion regulating the conditions of service of Municipal employees.
The view taken by the High Court in Ramesher Prasad case and followed in other two cases, is correct.
The High Court placed reliance on the Government Orders dated 27.4.57, 9.12.59 and 30.1.72 in holding that the directions contained in Government Order dated 10.4.50 were binding on the Municipal Board.
We have gone through the aforesaid Government Orders and Notifications but we find nothing therein to clothe the Government Order dated 10.4.50 with statutory character.
A Government Order declared ultra vires by High Court could not be revived by any subsequent Govern ment Order without there being any statutory power for the same.
Moreover the aforesaid Government Orders and Notifica tions do not contain any direction requiring the Municipal Board to fill up the post of Tax Inspector exclusively by promotion.
The High Court committed error in upholding the Commissioner 's order.
We have closely scrutinised the Government Order dated 10.4.50 (Annexure 1 to the petition) with the assistance of the counsel for the parties.
But even after conceding super visory power to the State Government to issue directions laying down conditions of service of Municipal employees, we do not find any directions therein requiring a Municipal Board to fill the post of Tax Inspector only by promotion and not by direct recruitment.
Learned counsel for the respondent placed reliance on paragraphs 5 and 6 of the Government Order in support of his contention that the post of Tax Inspector was required to be filled by promotion only.
Paragraphs 5 and 6 of the Government Order read as under: 206 "5.
In the case of the posts mentioned in the annexure promotions should, as a rule, be made from the lower to the higher posts or grades, as the case may be, in the same class of Service Subject to the general orders con tained in the above paragraphs.
The prevailing practice 'of transferring at random officials in one class of service to another should be stopped.
When direct recruitment to any post speci fied in the annexure had to be made it will be governed by the educational qualifications shown therein.
Recruitments to posts from outside should, however, as far as possible be made by inviting applications through adver tisement in the press and making a selection therefrom preferably be means of a competitive test.
Local Bodies may also be advised to form a Committee consisting of the Chairman or the President, the Executive Officer or the Secre tary, as the case may be, and the principal administrative officer of the department concerned, to make a selection from among the applicants for a vacant post by interviewing the after a competitive test.
The actual appointment will, however, be made by the competent authority.
" In order to ascertain the correct scope of the aforesaid paragraphs it is necessary to refer to the entire content of the Order.
It appears that the U.P. Pay Committee made certain recommendations prescribing minimum qualifications in respect of employees of Local Bodies.
The State Govern ment accepted the recommendations of the Pay Committee by its Resolution dated March 29, 1949 and in pursuance thereof it issued the Government Order dated 10.4.50 prescribing minimum qualifications for the employees of Local Bodies mentioned in the Schedule to the Order which included the post of Tax Inspector.
Paragraph 2 of the Order directed that future vacancies on the promotion post will not ordi narily be given from a lower to higher post unless the officials holding the lower post, possess the requisite educational qualifications prescribed for the higher post.
Paragraph 3 directed that the posts of Head Clerks or Office Superintendent should be filled by promotion only from among the educationally qualified Head Clerks.
It further directed that under no circumstances the posts of Head Clerks or Office Suptdt.
be filled by direct recruitment from outside.
Paragraph 4 directed the Municipal Boards to discontinue the posts of Sectional Head Clerks and to create posts of Office Head Clerks.
Paragraphs 7 and 8 of the Order do not contain any directions 207 with regard to the question of promotion.
Paragraph 5 as quoted earlier directed that promotion as a rule should be made from the lower to the higher post or grade in the same class of service subject to the directions contained in other paragraphs of the Order which means subject to the employee possessing the minimum qualifications prescribed for the higher post and the higher post should not be filled by transferring employees belonging to other class of serv ice.
Paragraph 6 directed that in case of direct recruitment to any post as specified in the annexure of the Order it should be governed by the educational qualifications pre scribed in the Order and recruitment should be made in accordance with the procedure prescribed therein by consti tuting a committee and inviting applications.
Paragraphs 5 and 6 as quoted above do not contain any directions requir ing Municipal Board to fill the post of Tax Inspector exclu sively by promotion.
Though paragraph 3 as already noted directed that under no circumstances the post of Head Clerk or Office Suptdt. should be filled up by the direct recruit ment from outside, no such direction for the post of Tax Inspector was issued, therefore it was open to the Municipal Board to make appointment to the post of Tax Inspector either by direct recruitment or by promotion.
In the instant case, the Municipal Board, Jaunpur gave opportunity to its employees working in the revenue class of service to appear for selection to the post of Tax Inspector in competition with outsiders.
Respondent No. 3 however, did not avail the opportunity for which he himself is to be blamed.
The Municipal Board, in our opinion, acted within its jurisdiction in making appointment to the pOSt Of Tax Inspector by direct recruitment.
The Commissioner, as well as the High Court committed error in taking a contrary view.
Subsequently, the Act was amended and the statutory rules i.e., the U.P. Palika Centralised Service Rules have been framed regulating the conditions of service of Municipal employees and appointment to the post of Tax Inspector is regulated by Statutory Rules.
The High Court committed serious error in upholding the order of the Government dated 13.2.80 in setting aside the appellant 's appointment without giving any notice or oppor tunity to him.
It is an elementary principle of natural justice that no person should be condemned without hearing.
The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him.
Any order passed in violation of principles of natural justice is rendered void.
There is no dispute that the Commissioner 's Order had 208 been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void.
The High Court committed serious error in upholding the Commis sioner 's Order setting aside the appellant 's appointment.
In this view, Orders of the High Court and the Commissioner are not sustainable in law.
We accordingly, allow the appeal and set aside the Order of the High Court as well as the Commissioner.
There will be no order as to costs.
T.N.A. Appeal allowed.
|
The Municipal Board, Jaunpur invited applications for the post of Tax Inspector.
The employees working in the Revenue Department of the Municipal Board were eligible for consideration alongwith the outsiders.
Respondent No. 3, the seniormost Tax Collector in Municipal Board, was called for interview but he refused to appear on the plea that the post of Tax Inspector should be exclusively filled by promotion and being the seniormost Tax Collector he should be promoted without considering any outsider.
Ignoring his claim the Municipal Board selected and appointed the appellant to the post of Tax Inspector.
Respondent No. 3 represented to the Commissioner challenging the appellant 's appointment.
The Commissioner set aside the order of the Municipal Board and cancelled the appellant 's appointment holding that pursuant to the directions contained in the Government 's Order dated 10.4.50, Respondent No. 3 was entitled to promotion.
The appellant challenged the Commissioner 's order before the High Court by filing a writ petition.
Disagreeing with the decision of another Single Judge, a Single Judge of the High Court dismissed the writ petition, and affirmed the order of the Commissioner on the findings that the appellant 's ap pointment was made in violation of the Government 's Order dated 10.4.50.
Hence this appeal.
202 Allowing the appeal and setting aside the order of the High Court, this Court, HELD: 1.
The orders of the High Court and the Commis sioner are not sustainable in law.
[208B] 1.1.
It is a well settled principle of judicial disci pline that if a Single Judge disagrees with the decision of another Single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision.
But in the instant case, the learned Single Judge of the High Court acted contrary to the well established principles of judi cial discipline in ignorning those decisions.
[205B C] 2.
Section 71 of the U.P. Municipalities Act, 1916 before its amendment in 1964 did not confer power on the State Government to issue any direction regulating the conditions of service of Municipal employees.
[205D] Ramesher Prasad and Ors.
vs Municipal Board, Pilibhit, A.I.R. 1958 All. 363; Ram Kripal Garg vs State of U.P., Writ Petition No. 4556 of 1965 dated 16.9.66 and Inder Bahadur vs Municipal Board, Mirzapur and Ors.
, Writ petition No. 235 of 1970 dated 20.10.1972 approved.
I Even after conceding supervisory power to the State Government to issue directions laying down conditions of service of Municipal employees, there are no directions in the Government Order dated 10 4 50 requiring a Municipal Board to fill the post of Tax Inspector only by promotion and not by direct recruitment.
Therefore, it was open to the Municipal Board to make appointment to the post of Tax Inspector either by direct recruitment or by promotion.
[205G; 207D] 2.2 In the instant case, the Municipal Board gave oppor tunity to its employees working in the revenue class of service to appear for selection in competition with outsid ers.
Respondent No. 3 however did not avail the opportunity for which he himself is to be blamed.
The Municipal Board acted within its jurisdiction in making appointment to the post of Tax Inspector by direct recruitment.
[207E] 2.3 A Govt.
Order declared ultra vires by the High Court, could not be revived by any subsequent Govt.
Order without there being any statutory power for the same.
[205E] 3.
It is an elementary principle of natural justice that no person 203 should be condemned without hearing.
The order of appoint ment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording an opportunity of hearing to him.
Any order passed in violation of the principles of natural justice is rendered void.
In the instant case, there is no dispute that the Commissioner 's order had been passed with out affording any opportunity of hearing to the appellant.
Therefore the order was illegal and void.
The High Court committed serious error in upholding the Commissioner 's order setting aside the appellant 's appointment without giving any notice or opportunity to him.
[207G H; 208A]
|
This writ petition is filed by the employer aggrieved by the orders
passed under Section 7-C of the Employees Provident Fund &
Miscellaneous Provisions Act, 1952, dated 12.11.2021 by the Assistant
Organization, Regional Office I, Hyderabad, who determined an amount of
Rs.15,21,834/- as contribution in respect of an international worker namely
Mrs. Leigh Fisher (Respondent No.2) as arbitrary, illegal ultra vires,
without jurisdiction and violative of rights guaranteed under Article 14 of
the Constitution of India.
2. Heard the learned counsel for the petitioner and learned Standing
Counsel for the respondent No.1 as well as learned counsel for the
3.1 The learned counsel for the petitioner submitted that the petitioner
namely M/s. Aga Khan Academy was a not-for-profit charitable institution
which was set up as a Centre for Excellence, providing financial assistance
to more than 50% of the students. Dr. Geoffrey Fisher was the Head of the
Academy (CEO), handling day to day affairs of the academy at the
relevant period. During his tenure he engaged his wife namely Mrs. Leigh
Fisher as Consultant for the period from 28.02.2015 to 31.10.2015 and as
an employee for the period from 01.11.2015 to 30.11.2018. Mrs. Leigh
Fisher was a citizen of Australia. As a consultant, she was a freelancer.
She had expertise in the specific field for which she was engaged. As per
the provisions of Employees Provident Funds Act, a consultant was not an
employee, as such, not covered under the Employees Provident Funds &
Miscellaneous Provisions Act, 1952. Mrs. Leigh Fisher on the request of
Dr. Geoffrey Fisher, visited India on business visa and her consultancy was
renewed till October, 2015. Thereafter, she was employed as Manager-
CSR, (External Relations and Partnership) with effect from 01.11.2015.
Her services were terminated under the agreement of termination w.e.f.
3.2 Learned counsel for the petitioner further submitted that the first
respondent initiated 7-A enquiry for the period from April, 2013 to June,
2015 and passed an order on 12.03.2018 determining the contributions
payable as Rs.52,72,451/- in respect of domestic and international workers.
Accordingly, the petitioner has paid the entire contributions as ordered by
the Department. The 7-A order became final. While things stood thus, the
2nd respondent lodged a complaint with the 1st respondent alleging that the
PF contributions were not paid from 01.02.2015 to 01.11.2019. Basing on
the said complaint, a show cause notice was issued by the 1st respondent on
14.01.2021. The petitioner gave reply to the show cause notice on
03.03.2021 and 30.03.2021. Thereafter, the 1st respondent commenced
proceedings under Section 7-A of the EPF Act vide summons dated
19.03.2021. The petitioner submitted his objections on 23.06.2021
followed by a representation dated 05.07.2021. The Enforcement Officer
submitted a detailed report dated 05.07.2021 and requested for conclusion
of enquiry under Section 7-A r/w 26-B of EPF Scheme, 1952. But
surprisingly the 1st respondent passed order under Section 7-C of EPF Act
3.3 He further submitted that the Impugned Order was passed without
jurisdiction and ultra vires the provisions of EPF & MP Act, 1952. The
issues 1 and 2 framed and determined by the authority would squarely fall
within the scope and ambit of para 26-B of the Employees Provident Fund
Scheme 1952. Para 26-B would mandate that the determination should be
by the Regional Commissioner, but in the present case, the proceedings
were decided by the Assistant Provident Fund Commissioner.
3.4 Issue No.3 would indicate that the enquiry concerned the nature and
quantum of wages, on which the complainant was eligible for EPF. It
would indicate that the determination sought to be made was first of its
kind, whereas Section 7C of the EPF Act provided for determination of
escaped amount which escaped determination of the dues under Section
7A. Likewise, the issue No.3 also would indicate that the enquiry
concerned fixation of quantum of EPF dues which was also sought to be
determined by the authority for the first time, but not the escaped amount.
The authority commenced the proceedings by way of a show cause notice
dated 14.01.2021. Thereafter, summon was issued on 19.03.2021 referring
the proceedings to be under Section 7A. Thereafter, about 15 hearings
were conducted by the respondent treating it as 7A proceedings and Diary
No.82/2021 was allotted. The 1st respondent never gave an impression that
the proceedings were under Section 7C of the Act. However, the
respondents converted the 7A proceedings into 7C proceedings on
13.09.2021 by mentioning it as typographical error. The said procedure
which was adopted by the respondent was illegal. The proceedings under
Section 7A and 7C were dealing with two different legal aspects. 7C
proceedings could be invoked only to determine the escaped amount.
However, the impugned order would not speak about what was the
omission or failure on the part of the employer to make any document or
report available, or to disclose, for determining the correct amount due. In
the absence of any such allegation, the provisions of Section 7C could not
be invoked. A detailed order under Section 7A was already passed on
12.03.2018 and no review application was filed and it was not challenged
before the Central Government Industrial Tribunal (CGIT) or before the
High Court. As such, the present application seeking review of 7A order
was not maintainable. No application for review was filed within (45) days
as mandated under Sec.7-B of the PF Act. Therefore, the respondent
authority ought not to have received the complaint and ought to have
rejected the same.
3.5 He further contended that Mrs. Leigh Fisher was a citizen of
Australia and the Indian Government was having Social Security
Agreement (SSA) with the said country. As per EPF scheme, an
international worker would not needed to be covered under EPF Act if
such international worker was originating from a country with whom
Indian Government was having SSA. The Enforcement Officer admitted
the same in his cross examination and inspite of the same, the 1st
respondent passed impugned order observing that the employer had not
furnished the Certificate of Coverage (COC). It was the duty of the
employee to produce the COC or in the alternative the respondent
department had to summon those details from the concerned authorities.
When once such objection was raised by the employer, the burden would
lie on the other parties to prove their case and the employer was not
expected to prove the case of the employee. The order passed by the
respondent was contrary to the established basic principles of law and was
liable to be set aside.
3.6 He further contended that Dr. Geoffrey Fisher, Head of Academy
(CEO) after discussion with all the international workers employed by the
academy decided to bifurcate the gross salary into basic pay and HRA with
their consent. Accordingly, PF contributions were paid in the same
manner. The complainant had not raised any objection in that matter and
had withdrawn the amount without any protest. Hence, her complaint
alleging that the salary was illegally bifurcated was devoid of any merit.
The respondent authority ought not to have conducted any kind of enquiry.
An application was filed by the petitioner seeking permission to cross
examine Mrs. Leigh Fisher and also the Enforcement Officer and requested
to summon both of them. But the 1st respondent had refused to grant
permission to cross examine Mrs. Leigh Fisher vide proceedings dated
27.09.2021. As the impugned order was passed without examining the
complainant, it was liable to be set aside on the said ground also.
3.7 He further contended that the complaint was vague and was
entertained without any proper investigation. The 1st respondent ignoring
all the basic requirements acted contrary to the instructions of the
department’s guidelines. The investigation officer verified the records of
the appellant on the basis of the complaint filed by Mrs.Leigh Fisher and
submitted a report dated 05.07.2021 arriving the dues payable by appellant
for an amount of Rs.8,55,025/- for the period from November, 2015 to
November, 2018 and suggested to conclude the enquiry under Section 7A
r/w Para 26 (b) of EPF & MP Act, 1952. In his report the Enforcement
Officer had not considered the period from February, 2015 to October,
2015 wherein the claimant worked as consultant, whereas the respondent
while passing order had ignored the said report and unilaterally arrived at
huge dues amount without any basis and hence the said order was not
sustainable and liable to be quashed. The respondent authority also had not
considered the amount paid towards administrative charges. The
complainant claimed EPF contribution on net salary. The special
allowance paid by the employer was non-monetary perquisite equal to the
PF contribution, Professional Tax and Income Tax to be paid by the
3.8. As per the judgment of the Hon’ble Apex Court in the case of
Vidyamandir, the professional developmental allowances/expenses would
not fall under the definition of wages, as such there was no further liability
on the part of the academy. Professional development allowances/expenses
were not paid to all the employees universally. Section 2-B (ii) of EPF Act
excludes the House Rent Allowance (HRA). HRA would differ from
company to company and employee to employee as such, it would not
attract EPF contribution as it was a variable allowance.
3.9. The observation of the respondent that PF contributions were to be
paid on HRA was totally illegal and unconstitutional. Apart from HRA,
the contribution was also arrived on consultancy charges. The head of the
academy and Mrs. Leigh Fisher being husband and wife lodged complaint
after leaving the services of the petitioner academy. The complainant had
not approached the respondent with clean hands and prayed to set aside the
impugned proceedings issued by the 1st respondent under Section 7C of
4.1 Learned Standing Counsel for the 1st respondent submitted that the
complaint was received from 2nd respondent, a citizen of Australia, who
was engaged as an employee of the petitioner stating that the petitioner
establishment defaulted in remitting the EPF contribution in respect of the
complainant as per the provisions of the Act for the period from
01.02.2015 to 01.11.2018. Basing on the complaint, a show cause notice
was served on the petitioner on 14.01.2021. In order to ascertain the dues,
an inquiry under Section 26(b) of the EPF Scheme, 1952 r/w Section 7A
was initiated and summons dated 19.03.2021 were sent to the petitioner.
The case was initially allotted Diary No.82 of 2021 and later after noticing
that a typographical error had taken place, with due approval of the
competent authority, the inquiry was converted to Section 7C r/w Para 30
and 36 of the Act, 1952 and a new Dairy No.142 of 2021 was allotted.
During the course of enquiry, the representatives of the petitioner
establishment as well as complainant appeared. As per the principles of
natural justice, the petitioner establishment was given sufficient
opportunity at every stage of enquiry.
4.2 Having gone through the evidences adduced during the enquiry and
the depositions submitted by the Area Enforcement Officer and by taking
into consideration the material facts and the documents available on
record, the enquiry was concluded and the impugned order dated
12.11.2021 was passed by the authority under Section 7C of the Act,
determining the escaped amount due from the petitioner. The enquiry
conducted by the authority would hold good. It was conducted as per the
rules laid down by the Act, 1952 and schemes framed there under.
4.3 Section 7C would refer to the payment of the escaped amount within
a period of 5 years from the date of communication of the order passed
under Section 7A or Section 7B. As such, the question of lack of
jurisdiction would not arise. The determination of escaped amount due
from the petitioner was made clear and it was justified. When Section 7A
proceedings were not questioned, raising any doubt on the entitlement or
induction of the respondent into the EPF scheme could not be raised now.
The petitioner had not made out any valid grounds during the course of
enquiry. The impugned order was passed after elaborate arguments and
after considering various factual and legal propositions and prayed to
dismiss the writ petition.
5. Learned counsel for the 2nd respondent contended that Section 7A
proceedings were passed by the 1st respondent on 12.03.2018, no questions
were raised since then by the petitioner on the jurisdiction of the
respondent in passing orders under Section 7A. Since section 7C would
refer to payment of the escaped amount, the question of lack of jurisdiction
would not arise. She was engaged by the petitioner not because of Dr.
Geoffrey Fisher, but because of her qualification and rich experience. Her
services were utilized notwithstanding the nomenclature of
post/designation of her shown. Lesser contributions were paid and the
amounts were erroneously computed in the proceedings under Section 7A.
As such, further proceedings for payment of escaped amount were
initiated. The visit of 2nd respondent to India on a business visa would not
have any bearing on the present lis. There was no illegality in passing of
the impugned order. The core issue was whether all the components of the
salary were included for the computation of the PF contribution or not,
which was ultimately decided by the impugned proceedings. The petitioner
had an effective and an alternative remedy to file an appeal in the EPFA
Tribunal under Section 7(1) of the Act. However, Rule 7 (2) of the EPFAT
Rules would postulate depositing of 75% of the awarded amount. In order
to avoid the same, the present petition was filed stating that the impugned
orders were ultra vires the provisions of the Act and prayed to dismiss the
writ petition.
7. The record would disclose that 7A enquiry was conducted by the 1st
respondent for the period from April, 2013 to June, 2015 and an order was
passed on 12.03.2018 determining the contribution payable as
Rs.52,72,451/- and that the petitioner paid the entire contribution as
ordered by the department. Subsequently, the 2nd respondent lodged a
complaint alleging that the PF contributions were not paid from
01.02.2015 to 01.11.2018 and basing on the said complaint, a show cause
notice was issued by the 1st respondent to the petitioner on 14.01.2021 and
summons under Section 7A of the EPF Act were issued to the petitioner on
19.03.2021. The show cause notice would disclose that if the petitioner
failed to remit the dues and set right the omissions pointed out within 10
days, enquiry under Section 7A of the Act would be initiated to assess the
dues under EPF & MP Act, 1952 and schemes framed there under. The
petitioner filed his objections to the proceedings under Section 7A of EPF
Act, 1952 vide his letter dated 05.07.2021 contending that the application
filed by the 2nd respondent seeking review of Section 7A order was not
maintainable as it had to be challenged within 45 days, as per the
provisions of 7B of PF Act and the same was also not in the format
prescribed under the Act. He also contended that as per the guidelines for
initiation of enquiry under Section 7A of the Act issued by the EPF
Organization, New Delhi, dated 14.02.2020, the Enforcement Officer had
to investigate the case of any complaint on the basis of admissible
evidence gathered during investigation.
8. As per Section 13 (1) of EPF Act and extracted clauses 2 and 3 of
the guidelines, it was stated that “any enquiry or legal proceedings
initiated without prima facie case is of the nature of fishing and roving
enquiry and the same was impermissible. The minimum standard of
evidence for commencement of any legal proceedings is “existence of a
prima-facie case” and a mere complaint in itself would not constitute
prima facie evidence sufficient to initiate an enquiry under Section 7A as
complaint was only a source of information and not a legal proof of the
It was also extracted that “the tendency to initiate inquiries on the
basis of complaints alone is legally untenable and must be avoided as it
would lead to surpassing the investigations required under law before
initiation of any inquiry.”
9. Thus, a show cause notice was issued by the 1st respondent under
Section 7-A of the Act and the petitioner also gave his reply by way of
objections for initiating enquiry under Section 7A once again, as an
enquiry was conducted under Section 7A once on 12.03.2018 and the same
became final. The 1st respondent without issuing any notice under Section
7C converted the proceedings under Section 7A into 7C by making an
observation in the impugned order that a typographical error took place. As
such, 7A enquiry is converted to enquiry under Section 7C r/w Para 30 and
36 of the EPF & MP Act, 1952 by allotting a new diary No.142 of 2021.
10. Section 7C pertains to determination of escaped amount. Section 7C
of EPF & MP Act reads as follows :
7C. Determination of escaped amount.—Where an order
determining the amount due from an employer under section 7A or
section 7B has been passed and if the officer who passed the order—
(a) has reason to believe that by reason of the omission or failure on
the part of the employer to make any document or report available,
or to disclose, fully and truly, all material facts necessary for
determining the correct amount due from the employer, any amount
so due from such employer for any period has escaped his notice;
(b) has, in consequence of information in his possession, reason to
believe that any amount to be determined under section 7A or
section 7B has escaped from his determination for any period
notwithstanding that there has been no omission or failure as
mentioned in clause (a) on the part of the employer, he may, within
a period of five years from the date of communication of the order
passed under section 7A or section 7B, re-open the case and pass
appropriate orders re-determining the amount due from the
employer in accordance with the provisions of this Act:
Provided that no order re-determining the amount due from the
employer shall be passed under this section unless the employer is
given a reasonable opportunity of representing his case.
11. Thus, Section 7C could be invoked only to determine the escaped
amount. But the impugned order would not disclose what was the omission
or failure on the part of the employer for determining correct amount due.
The impugned order also would not disclose framing of any issue with
regard to the escapement of any amount. Four issues were framed by the
Assistant Provident Fund Commissioner who passed the impugned order
12. The first issue was with regard to whether Mrs. Leigh Fisher was
eligible for enrollment into Provident Fund under the EPF and MP Act
1952 being an international worker? The second was with regard to what
was the period for which the employer was liable to pay EPF dues in
respect of the complainant, Mrs. Leigh Fisher? The third issue was with
regard to what were the wages/salary/remuneration on which the
complainant was eligible for EPF calculation? and the fourth issue was
with regard to what was the quantum of EPF dues payable by the
Thus, all these issues would indicate that the determination sought to
be made was first of its kind and would not indicate any escapement of
amount which was already determined.
13. The Proviso to Section 7C would say that no order redetermining the
amount due from the employer should be passed under this section unless
the employer was given a reasonable opportunity of representing his case.
14. Though learned counsel for the respondent Nos.1 and 2 contended
that the petitioner was given reasonable opportunity of representing his
case at all stages, the show cause notice was issued under Section 7A of
EPF and MP Act and all the proceedings were conducted giving him an
impression that it was an enquiry conducted under Section 7A and no
notice was issued to him under Section 7C of the Act. It was in violation of
the proviso to Section 7C and also in violation of principles of natural
justice. The issues framed and determined by the authority also would
clearly fall within the scope and ambit of Para 26-B.
15. Para 26-B of the Employees Provident Fund Schemes, 1952 reads as
26B. Resolution of Doubts – If any question arises whether an
employee is entitled or required to become or continue as a member,
or as regard the date from which he is so entitled or required to
become a member the decision thereon of the Regional
Commissioner shall be final.
16. Para 26-B mandates that the determination thereof shall be by the
Regional Commissioner. In the present case, the authority who passed the
impugned order was the Assistant Provident Fund Commissioner. As
such, the order passed was also without jurisdiction and ultra vires the
provisions of EPF and MP Act, 1952. It is well settled that statutory
remedies were applicable to the orders passed intra vires the statute only
but not applicable to the orders passed ultra vires the statute.
17. Though the learned counsel for 2nd respondent contended that the
orders passed under Section 7C was appealable under Section 7I, but as the
order was passed ultra vires, the statute, the writ petition under Article 226
of Constitution is maintainable.
18. Learned counsel for the petitioner contended that impugned order
should be read as it was and it should not be supplemented by any counter
affidavit etc., The word escape was not used in the entire order. The order
also would not disclose any fresh notice issued to the petitioner under
Section 7C of the Act. The date and stage at which the typographical error
was committed was not indicated in the order and relied on the judgment
of the Hon’ble Apex Court in Mohinder Singh Gill and another vs. Chief
Election Commissioner, New Delhi and others reported in (1978) 1
Supreme Court Cases 4051, wherein it was held that :
“8….when a statutory functionary makes an order based on
certain grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in the
shape of affidavit or otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to Court on account of a
challenge, get validated by additional grounds later brought out.
We may here draw attention to the observations of Bose, J. in
Gordhandas Bhanji: Public orders, publicly made, in exercise of a
statutory authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what he
meant, or of what was in his mind, or what he intended to do.
Public orders made by public authorities are meant to have public
effect and are intended to affect the acting and conduct of those to
whom they are addressed and must be construed objectively with
reference to the language used in the order itself. Orders are not
like old wine becoming better as they grow older.”
19. He also relied upon the judgment of the Hon’ble Apex Court in
Nawabkhan Abbaskhan vs. The State of Gujarat reported in (1974) 2
Supreme Court Cases 1212 wherein it was held that :
“14. Where hearing is obligated by a statute which affects the
fundamental right of a citizen, the duty to give the hearing sounds in
constitutional requirement and failure to comply with such a duty is
fatal. May be that in ordinary legislation or at common law a
Tribunal, having jurisdiction and failing to hear the parties, may
commit an illegality which may render the proceedings voidable
when a direct attack is made thereon by way of appeal, revision or
review, but nullity is the consequence of unconstitutionality and so
without going into the larger issue and its plural divisions, we may
roundly conclude that the order of an administrative authority
charged with the duty of complying with natural justice in the
exercise of power before restricting the fundamental right of a
citizen is void ab initio and has no legal efficacy. The duty to hear
manacles his jurisdictional exercise and any act is, in its inception,
void except when performed in accordance with the conditions laid
down in regard to hearing. May be, this is a radical approach, but
the alternative is a travesty of constitutional guarantees, which leads
to the conclusion of post-legitimated disobedience of initially
unconstitutional orders. On the other hand law and order will be in
jeopardy if the doctrine of discretion to disobey invalid orders were
20. The Hon’ble Apex Court held that when a fundamental right of the
petitioner was encroached upon without due hearing, legal result was that
the accused was never guilty of flouting an order which never legally
existed. It observed that the order in violation of natural justice was void.
21. The Hon’ble Apex Court further observed that :
“…An order is null and void if the statute clothing the
administrative tribunal with power conditions it with the obligation
to hear, expressly or by implication. Beyond, doubt, an order which
infringes a fundamental freedom passed in violation of the audi
alteram partem rule is a nullity. When a competent court holds such
official act or order invalid, or sets it aside, it operates from nativity,
i.e. the impugned act or order was never valid…”
22. In the present case also Section 7C mandates that the employer shall
be given reasonable opportunity of representing his case before
redetermining the amount due from him. The word used is “shall”. But, as
seen from the record, no opportunity was provided to the petitioner for
representing his case before issuing proceedings under Section 7C of the
Act. He was not given an opportunity to submit his objection with regard
to initiation of proceedings under Section 7C of the Act. As such, it is
considered fit to set aside the impugned proceedings issued by the 1st
respondent under Section 7C of EPF & MP Act, 1952 as illegal,
unauthorized, without jurisdiction and ultra vires the provisions of the EPF
& MP Act, 1952 and violative of the petitioner’s rights.
23. As such, the writ petition is allowed by setting aside the impugned
proceedings dated 12.11.2021. No order as to costs.
24. Miscellaneous Petitions pending, if any, shall stand closed.
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The Telangana High Court in a Writ Petition ruled that an order cannot be passed under Section 7C of The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (EPF act) for determination of escaped amount unless the employer is given a reasonable opportunity of representing his case Brief facts of the case The Writ Petition was filed by the employer aggrieved by the...
The Telangana High Court in a Writ Petition ruled that an order cannot be passed under Section 7C of The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (EPF act) for determination of escaped amount unless the employer is given a reasonable opportunity of representing his case
Brief facts of the case
The Writ Petition was filed by the employer aggrieved by the orders passed under Section 7C of the Act, 1952 by the Assistant Provident Fund Commissioner, Hyderabad, who determined an amount of Rs. 15,21,834/- as contribution in respect of an international worker namely Mrs. Leigh Fisher.
The counsel for the petitioner submitted that the petitioner namely M/s Aga Khan Academy was not-for-profit charitable institution which was set up as a Centre for Excellence, providing financial assistance to more than 50% of the students. Dr. Geoffrey Fisher was the Head of the Academy handling day to day affairs of the academy at the relevant period. During his tenure he engaged his wife namely Mrs. Leigh Fisher who was a citizen of Australia as Consultant for the period from 28.02.2015 to 31.10.2015 and as an employee for 3 years from 01.11.2015.
The Assistant PF Commissioner initiated 7-A enquiry for the period from April, 2013 to June, 2015 and passed an order on 12.03.2018 determining the contributions payable as Rs.52,72,451/- in respect of domestic and international workers. Accordingly, the petitioner has paid the entire contributions as ordered by the Department. The 7-A order became final.
Thereafter, Mrs. Leigh lodged another complaint that PF contributions were not paid from 01.02.2015 to 01.11.2019. Basing on the said complaint, a show-cause notice was issued to the petitioner. The proceedings under Section 7A of the EPF Act commenced. But surprisingly, the Assistant PF Commissioner passed order under Section 7-C of EPF Act. There was never an impression given that the proceedings were under Section 7C of the Act. Section 7C of the EPF Act provided for determination of escaped amount which escaped determination of the dues by employer under Section 7A.
The impugned order did not disclose framing of any issue with regard to the escapement of any amount. The first issue was with regard to whether Mrs. Leigh Fisher was eligible for enrollment into Provident Fund under the EPF and MP Act 1952 being an international worker? The second was with regard to what was the period for which the employer was liable to pay EPF dues in respect of the complainant, Mrs. Leigh Fisher? The third issue was with regard to what were the wages/salary/remuneration on which the complainant was eligible for EPF calculation? and the fourth issue was with regard to what was the quantum of EPF dues payable by the establishment, if due?
The impugned order did not detail what was the omission or failure on the part of the employer for determining correct amount due under Section 7C.
Finding of the Court
Justice G. Radha Rani observed that it is well settled that statutory remedies were applicable to the orders passed intra vires the statute only but not applicable to the orders passed ultra vires the statute.
"Section 7C mandates that the employer shall be given reasonable opportunity of representing his case before redetermining the amount due from him. The word used is "shall". But, as seen from the record, no opportunity was provided to the petitioner for representing his case before issuing proceedings under Section 7C of the Act. He was not given an opportunity to submit his objection with regard to initiation of proceedings under Section 7C of the Act."
The writ petition was thus allowed.
Case Title: M/s. The AGA Khan Academy v. Assistant PF Commissioner
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1. Detailed submissions on various applications, including applications
seeking leave to defend filed on behalf of the defendants, were heard on 10th
July, 2022, 23rd August, 2022 and 5th September, 2022, when judgment was
reserved and one week‟s time was granted to the parties to file written
submissions. Written submissions were duly filed on behalf of the parties in
both suits.
2. On 11th October, 2022, the matter was mentioned on behalf of counsel
for the defendants in order to bring to the knowledge of the Court the
subsequent developments regarding insolvency proceedings having been
filed against the defendant no.1. Accordingly, the matter was listed for
directions on 17th October, 2022. Counsels for the parties sought time to
make submissions in respect of the subsequent developments and the matter
was posted on 27th October, 2022. On the said date, an additional affidavit
and a fresh application, being I.A.17487/2022, under Order VII Rule 11 of
the CPC filed on behalf of the defendant no.1, were on record. Submissions
on behalf of the parties were heard and the judgment was reserved again.
3. Since similar issues arise in both the suits, they are being decided by
way of a common judgment.
4. Brief facts in CS(COMM) 8/2021 are set out below.
4.1. CS(COMM) 8/2021 is a summary suit filed on behalf of Axis Trustee
Services Limited under Order XXXVII of the CPC seeking recovery
of EUR 64,751,108.73 from the defendants no.1 and 2. Defendants
no.1 and 2 are the ex-promoters of Bhushan Steel Limited (renamed
as Tata Steel BSL Limited)/the borrower [hereinafter “Bhushan
4.2. A Facility Agreement dated 14th April, 2011 [hereinafter “Facility
Agreement”] was executed between Bhushan Steel and various
financial creditors. Pursuant to the said Facility Agreement, the
plaintiff was appointed as the security agent vide Security Agent
Agreement dated 18th May, 2011 to look after the beneficial interest
of the lenders. The repayment obligations of Bhushan Steel were
secured by way of a personal guarantee given jointly by the
guarantors, being the defendants no.1 and 2.
4.3. Bhushan Steel defaulted in repayment of the principal installments
under the Facility Agreement from 30th April, 2015 as also on the
payment of interest. Upon default, personal guarantee was invoked
by the plaintiff acting in his capacity as a security agent vide
Invocation Notice dated 8th November, 2017.
4.4. The Corporate Insolvency Resolution Process (CIRP) was initiated
against Bhushan Steel before the Principal Bench of the National
Company Law Tribunal (NCLT) vide order dated 26th July, 2017. In
the said proceedings, the Financial Creditors filed a claim for the
outstanding amounts in terms of the Facility Agreement. An amount
of EUR 156,929,177.43 was admitted by the Resolution Professional
of Bhushan Steel as the financial debt owed to the Financial Creditor.
As a part of the Resolution Plan dated 3rd February, 2018, approved
by the NCLT on 15th May, 2018, a total amount of EUR
92,178,068.70 was received by the Financial Creditor on 29th and 30th
May, 2018. In terms of Clause 8.7.3(vi) of the approved Resolution
Plan, Financial Creditors of Bhushan Steel were given right to recover
any unresolved financial debt, owed by the borrower, from the
guarantors in terms of the personal guarantee issued by them.
Pursuant thereto, vide a Demand Notice dated 20th October, 2020, the
financial creditors demanded payment of EUR 64,751,108.73/- from
the defendants (guarantors). No reply to the said notice was received,
nor was the due amount paid to the financial creditors. Accordingly,
the present suit has been filed seeking recovery of EUR
4.5. Summons in CS(COMM) 8/2021 were issued on 16th April, 2021 and
were accepted in Court by the counsel appearing on behalf of the
defendants no.1 and 2. On the said date, counsel for the defendants
submitted that insolvency proceedings against the defendant no.2
have been initiated before the NCLT and therefore, the suit cannot
proceed against the defendant no.2. Taking note of the aforesaid
submission, the defendant no.1 was directed to maintain status quo in
respect of his immovable properties and no orders were passed against
the defendant no.2.
5. Brief facts in CS(COMM) 20/2021 are set out below.
5.1. CS(COMM) 20/2021 is a summary suit filed on behalf of
Norddeutsche Landesbank under Order XXXVII of the CPC seeking
recovery of EUR 44,102,086.02/- from the defendants, being
personal guarantors, in respect of three Guarantee Agreements
executed in favour of the plaintiff for securing payment of amounts
under three separate Facility Agreements executed in favour of
Bhushan Steel/the borrower. As on 29th May, 2018, the total claim of
the plaintiff was EUR 103,331,481.86/-with applicable interest, out of
which EUR 60,769,146.46/- was admitted and received by the
plaintiff in the CIRP. The total outstanding amount as on 18th
November, 2020 and accordingly claimed in the suit is EUR
44,102,086.02/-, which includes applicable interest.
5.2. Summons in the suit were issued on 15th January, 2021 and the
defendants were directed to maintain status quo in respect of their
movable and immovable assets. The defendants were further directed
to file affidavits within two weeks giving details of their assets and
the status of the said assets. An appeal was filed against the orders
dated 15th January, 2021 and 16th December, 2021 in CS(COMM)
20/2021. The said appeal is pending before the Division Bench.
6. In view of insolvency proceedings having been initiated against both
the defendants no.1 and 2, the first issue to be decided is whether the present
suits can proceed against the defendants in view of applications having been
filed under Section 95 of the IBC against both the defendants.
7. In this regard, counsel for the defendants has made the following
i. Insolvency proceedings were initiated against the defendant no.2 by
L&T Finance Limited before the NCLT, Delhi on 4th March, 2020
and therefore, in light of Section 96 of the IBC, the interim
moratorium would come into effect and the present suits would not be
maintainable against the defendant no.2.
ii. The NCLT is the appropriate forum for adjudicating the personal
insolvency of the defendants. Reliance is placed on Section 179 read
with Section 60 of the IBC to submit that insolvency proceedings in
respect of personal guarantors of a corporate debtor would lie before
the NCLT and not a Debt Recovery Tribunal (DRT). Reliance is also
placed on the judgment of the Supreme Court in Embassy Property
Development Pvt. Ltd. v. State of Karnataka &Ors., (2020) 13 SCC
iii. The moratorium under Section 96 of the IBC is „debt centric‟.
Therefore, it would be applicable to both the defendants no.1 and 2,
who are co-guarantors, as the debt is common to both of them and is
not separable. Reliance in this regard is placed on the judgment of the
Supreme Court in State Bank of India v. V. Ramakrishnan and Anr.,
iv. In any event, in view of the insolvency proceedings being initiated
against the defendant no.1 on 28th May, 2022, the present suits cannot
proceed against the defendant no.1. The relevant date for the interim
moratorium under Section 96 is the date of filing of an application
under Section 94/95 of the IBC.
v. Without prejudice to the above, even if the date, when the insolvency
application against the defendant no.1 was registered i.e. 3rd October,
2022, is considered, the present suits still cannot proceed any further
as the judgment was yet to be pronounced on the said date and the
suits were pending. Reliance in this regard is placed on the judgments
in State Bank of India and Others v. S.N. Goyal, (2008) 8 SCC 92
and Stichting Doen-postcode Loterij v. Vin Poly Recyclers Pvt. Ltd.
8. On the other hand, senior counsel appearing on behalf of the plaintiffs
has made the following submissions:
i. The insolvency resolution process and bankruptcy for individuals is
governed under Part III of the IBC. In terms of Sections 78 and 79,
the adjudicating authority for personal insolvency matter is the DRT
and not the NCLT. Therefore, the defendants cannot claim any
moratorium on the basis of an application filed under Section 95 of
the IBC before the NCLT, which has no jurisdiction to entertain the
same.
ii. Section 60 only contemplates a situation where the CIRP in respect of
the corporate debtor is pending. Otherwise, for the purposes of Part III
of the IBC, the DRT alone is the adjudicating authority vested with
the power to deal with an application under Section 95 of the IBC. In
view of the fact that the CIRP in respect of the corporate debtor,
Bhushan Steel stands concluded, the insolvency proceedings against
the defendants could not have been filed before the NCLT.
Resultantly, the benefit of Section 96 of IBC is not available to the
defendants.
iii. The defendant no.2 himself has objected to the maintainability of the
application filed against him under Section 95 of the IBC on the
ground that the NCLT does not have the jurisdiction. Therefore, the
defendant no.2 cannot be permitted to approbate and reprobate.
iv. Without prejudice to the above, the effect of the interim moratorium
under Section 96 of the IBC would apply against all debts of a
particular individual and not of any other person or a co-guarantor.
v. Under the Personal Guarantee dated 19th May, 2011, both the
defendants no.1 and 2 are jointly and severally liable towards the
plaintiff. Legal incapacity of the defendant no.2 cannot impact the
remedies against the other guarantor.
vi. Though the application under Section 95 in respect of the defendant
no.1 was filed on 28th May, 2022, it was registered only on 3rd
October, 2022, when the judgment had been reserved in the present
cases. Once the judgment has been reserved in a matter, the
subsequent developments in the matter cannot come in the way of the
court pronouncing the judgment. Therefore, the interim moratorium
under Section 96 of the IBC in respect of the defendant no.1 cannot
come in the way of the Court pronouncing its judgment in the present
suits.
vii. The effect of a moratorium has to be assessed by the court and the
court cannot take a blinkered approach. The pronouncement of
judgment in the present proceedings would not have an effect of
diminishing the assets of the defendants. Reliance in this regard is
placed on the judgment in SSMP Industries Ltd. v. Perkan Food
9. I shall now proceed to deal with the rival contentions raised by the
counsels appearing on behalf of the parties.
10. To appreciate the aforesaid submissions, a reference may be made to
the relevant provisions of the IBC. Part II of the IBC deals with
PERSONS” and Section 60 of the IB Coccurs in Chapter VI of Part II of the
IBC titled “ADJUDICATING AUTHORITY FOR CORPORATE
PERSONS.” The relevant portion of Section 60 of the IBC is set out below:
―60. (1) The Adjudicating Authority, in relation to
insolvency resolution and liquidation for corporate persons
including corporate debtors and personal guarantors thereof
shall be the National Company Law Tribunal having territorial
jurisdiction over the place where the registered office of the
corporate person is located.
(2) Without prejudice to sub-section (1) and notwithstanding
anything to the contrary contained in this Code, where a
corporate insolvency resolution process or liquidation
proceeding of a corporate debtor is pending before a National
Company Law Tribunal, an application relating to the insolvency
resolution or bankruptcy of a personal guarantor of such
corporate debtor shall be filed before such National Company
(3) An insolvency resolution process or bankruptcy proceeding of
a personal guarantor of the corporate debtor pending in any
court or tribunal shall stand transferred to the Adjudicating
Authority dealing with insolvency resolution process or
liquidation proceeding of such corporate debtor.
(4) The National Company Law Tribunal shall be vested with all
the powers of the Debt Recovery Tribunal as contemplated under
Part III of this Code for the purpose of sub-section (2).‖
11. The term “personal guarantor” has been defined in Section 5(22) of
the IBC, which is as under:
―(22) "personal guarantor" means an individual who is the
surety in a contract of guarantee to a corporate debtor;‖
12. Part III of the IBC deals with “INSOLVENCY RESOLUTION AND
BANKRUPTCY FOR INDIVIDUALS AND PARTNERSHIP FIRMS” and
the relevant portions of Sections 78 and 79 of the IBC, which are a part of
Chapter I of Part III are set out below:
―78. This Part shall apply to matters relating to fresh start,
insolvency and bankruptcy of individuals and partnership firms
where the amount of the default is not less than one thousand
Provided that the Central Government may, by
notification, specify the minimum amount of default of higher
value which shall not be more than one lakh rupees.
79. In this Part, unless the context otherwise requires,—
(1) "Adjudicating Authority" means the Debt Recovery Tribunal
constituted under sub-section (1) of section 3 of the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993;‖
13. Next, a reference may be made to relevant portions of Sections 95 and
96 of the IBC, which occur in Chapter III of Part III of the IBC:
―95. (1) A creditor may apply either by himself, or jointly with
other creditors, or through a resolution professional to the
Adjudicating Authority for initiating an insolvency resolution
process under this section by submitting an application.
96. (1) When an application is filed under section 94 or
(a) an interim-moratorium shall commence on the date of
the application in relation to all the debts and shall cease to
have effect on the date of admission of such application; and
(b) during the interim-moratorium period—
(i) any legal action or proceeding pending in respect of any
debt shall be deemed to have been stayed; and
(ii) the creditors of the debtor shall not initiate any legal
action or proceedings in respect of any debt.‖
14. A reference may also be made to Section 179 of the IBC, which is a
part of Chapter VI of the IBC dealing with “ADJUDICATING
―179. (1) Subject to the provisions of section 60, the
Adjudicating Authority, in relation to insolvency matters of
individuals and firms shall be the Debt Recovery Tribunal having
territorial jurisdiction over the place where the individual debtor
actually and voluntarily resides or carries on business or
personally works for gain and can entertain an application under
this Code regarding such person.‖
15. The interplay between Section 60 and Section 179 of the IBC came up
for consideration before the Supreme Court in Embassy Property
Development (supra), wherein the Supreme Court observed that in respect
of personal guarantors of corporate persons, the NCLT would be the
adjudicating authority. The relevant observations of the Supreme Court are
set out below.
―33. Sub-section (4) of Section 60 of the IBC, 2016 states that
the NCLT will have all the powers of the DRT as contemplated
under Part III of the Code for the purposes of sub-section (2).
Sub-section (2) deals with a situation where the insolvency
resolution or liquidation or bankruptcy of a corporate guarantor
or personal guarantor of a corporate debtor is taken up, when
CIRP or liquidation proceeding of such a corporate debtor is
already pending before NCLT. The object of sub-section (2) is to
group together (A) the CIRP or liquidation proceeding of a
corporate debtor, and (B) the insolvency resolution or
liquidation or bankruptcy of a corporate guarantor or personal
guarantor of the very same corporate debtor, so that a single
forum may deal with both. This is to ensure that the CIRP of a
corporate debtor and the insolvency resolution of the individual
guarantors of the very same corporate debtor do not proceed on
different tracks, before different fora, leading to conflict of
interests, situations or decisions.
34. If the object of sub-section (2) of Section 60 is to ensure
that the insolvency resolutions of the corporate debtor and its
guarantors are dealt with together, then the question that arises
is as to why there should be a reference to the powers of the DRT
in sub-section (4). The answer to this question is to be found in
Section 179 of the IBC, 2016. Under Section 179(1, it is the DRT
which is the adjudicating authority in relation to insolvency
matters of individuals and firms. This is in contrast to Section
60(1) which names the NCLT as the adjudicating authority in
relation to insolvency resolution and liquidation of corporate
persons including corporate debtors and personal guarantors.
The expression ―personal guarantor‖ is defined in Section
5(22) to mean an individual who is the surety in a contract of
guarantee to a corporate debtor. Therefore the object of sub-
section (2) of Section 60 is to avoid any confusion that may
arise on account of Section 179(1) and to ensure that whenever
a CIRP is initiated against a corporate debtor, NCLT will be the
adjudicating authority not only in respect of such corporate
debtor but also in respect of the individual who stood as surety
to such corporate debtor, notwithstanding the naming of the
DRT under Section 179(1) as the adjudicating authority for the
insolvency resolution of individuals. This is also why sub-
section (2) of Section 60 uses the phrase ―notwithstanding
anything to the contrary contained in this Code.‖
16. The NCLAT in its judgement dated 27thJanuary, 2022 in Company
Appeal (AT) Insolvency No. 60/2022 titled State Bank of India, Stressed
Asset Management Branch v. Mahendra Kumar Jajodia discussed the
provisions of Section 60 of the IBC and held that even if the CIRP in respect
of the corporate debtor is not pending before the NCLT, the NCLT would be
the appropriate forum for adjudicating an application under Section 95 in
respect of a personal guarantor. The relevant observations of the NCLAT are
―7. Sub-Section 1 of Section 60 provides that Adjudicating
Authority for the corporate persons including corporate debtors
and personal guarantors shall be the NCLT. The Sub-Section 2
of Section 60 requires that where a CIRP or Liquidation
Process of the Corporate Debtor is pending before ‗a‘ National
Company Law Tribunal the application relating to CIRP of the
Corporate Guarantor or Personal Guarantor as the case may
be of such Corporate Debtor shall be filed before ‗such‘
National Company Law Tribunal. The purpose and object of
the sub-section 2 of Section 60 of the Code is that when
proceedings are pending in ‗a‘ National Company Law
Tribunal, any proceeding against Corporate Guarantor should
also be filed before ‗such‘ National Company Law Tribunal.
The idea is that both proceedings be entertained by one and the
same NCLT. The sub-section 2 of Section 60 does not in any way
prohibit filing of proceedings under Section 95 of the Code even
if no proceeding are pending before NCLT.
8. The use of words ‗a‘ and ‗such‘ before National
Company Law Tribunal clearly indicates that Section 60(2) was
applicable only when a CIRP or Liquidation Proceeding of a
Corporate Debtor is pending before NCLT. The object is that
when a CIRP or Liquidation Proceeding of a Corporate Debtor
is pending before ‗a‘ NCLT the application relating to Insolvency
Process of a Corporate Guarantor or Personal Guarantor
should be filed before the same NCLT. This was to avoid two
different NCLT to take up CIRP of Corporate Guarantor. Section
60(2) is applicable only when CIRP or Liquidation Proceeding of
a Corporate Debtor is pending, when CIRP or Liquidation
Proceeding are not pending with regard to the Corporate Debtor
there is no applicability of Section 60(2).
9. Section 60(2) begins with expression ‗Without prejudice
to sub-section (1)‘ thus provision of Section 60(2) are without
prejudice to Section 60(1) and are supplemental to sub-section
(1) of Section 60.
10. Sub-Section 1 of Section 60 provides that Adjudicating
Authority in relation to Insolvency or Liquidation for
Corporate Debtor including Corporate Guarantor or Personal
Guarantor shall be the NCLT having territorial jurisdiction
over the place where the Registered Office of the Corporate
Person is located. The substantive provision for an
Adjudicating Authority is Section 60, sub-Section (1), when a
particular case is not covered under Section 60(2) the
Application as referred to in sub-section (1) of Section 60 can
be very well filed in the NCLT having territorial jurisdiction
over the place where the Registered Office of corporate Person
is located.
11. The Adjudicating Authority erred in holding that since
no CIRP or Liquidation Proceeding of the Corporate Debtor
are pending the application under Section 95(1) filed by the
Appellant is not maintainable. The Application having been
filed under Section 95(1) and the Adjudicating Authority for
application under Section 95(1) as referred in Section 60(1)
being the NCLT, the Application filed by the Appellant was
fully maintainable and could not have been rejected only on the
ground that no CIRP or Liquidation Proceeding of the
Corporate Debtor are pending before the NCLT. In result, we
set aside the order dated 05thOctober, 2021 passed by the
Adjudicating Authority. The Application filed by the Appellant
under Section 95(1) of the Code is revived before the NCLT
which may be proceeded in accordance with the law.‖
17. The statutory appeal, being Civil Appeal No(s).1871-1872/2022, filed
against the aforesaid order of the NCLAT, was dismissed by the Supreme
Court vide order dated 6th May, 2022.
18. In view of the legal position elucidated above, it clear that Section
179(1), which provides the jurisdiction for the DRT with respect to
insolvency matters of individuals and firms, is subject to Section 60 of the
IBC. Sub-section (1) of Section 60 of the IBC provides that in relation to
insolvency resolution for corporate persons, including corporate debtors and
personal guarantors, the Adjudicating Authority shall be the NCLT.
Sub-section (2) of Section 60 provides that where the CIRP of a corporate
debtor is pending before an NCLT, an application relating to the insolvency
of a personal guarantor of such corporate debtor shall be filed before the
same NCLT. Sub-section (3) of Section 60 further provides that the
insolvency resolution process in respect of a personal guarantor pending in
any Court or Tribunal, shall stand transferred to the adjudicating authority
dealing with the insolvency resolution process of the corporate debtor.
19. On behalf of the plaintiff, reliance has been placed on sub-section (2)
of Section 60 to contend that insolvency proceedings in respect of a personal
guarantor of a corporate debtor shall be filed in the NCLT only if the CIRP
is pending in respect of corporate debtor before the NCLT. In view of the
fact that the CIRP in respect of corporate debtor, Bhushan Steel already
stands concluded, insolvency proceedings in respect of its guarantors have to
be filed before the DRT and not the NCLT. The aforesaid submission
overlooks the fact that sub-section (2) of Section 60, IBC starts with words
‗without prejudice to sub-section (1)‘. Clearly, sub-section (2) of Section 60
is supplemental to sub-section (1) of Section 60 and has to be read along
with sub-section (1) of Section 60. A harmonious reading of the aforesaid
provisions would lead to the conclusion that sub-section (1) of Section 60
applies in respect of insolvency proceedings in respect of personal
guarantors of corporate debtors irrespective of the fact whether CIRP is
pending against the corporate debtor. The objective of sub-sections (2) and
(3) is that where proceedings in respect of a corporate debtor have been
initiated in one NCLT and those against a guarantor before another NCLT or
another court or tribunal while the CIRP is pending in respect of the
corporate debtor before a particular NCLT, the proceedings against the
personal guarantor should also be before the same NCLT.
20. It may also be relevant to mention here that in term of Rule 3(1)(a) of
the Insolvency and Bankruptcy (Application to Adjudicating Authority for
Insolvency Resolution Process for Personal Guarantors to Corporate
Debtors), Rules, 2019, it has specifically been provided that the adjudicating
authority for the purposes of Section 60 would be the NCLT. No distinction
has been made under different sub-sections of Section 60 of the IBC in this
Rule with regard to the competent adjudicating authority.
21. On behalf of the plaintiffs, it was further contended that the defendant
no.2 himself had objected to the maintainability of the aforesaid application
filed against the defendant no.2 under Section 95 of the IBC on the ground
that the NCLT does not have jurisdiction. In my view, even if such a stand
has been taken by the defendant no.2, the same would not constitute an
estoppel against the defendant no.2 as it was a legal objection taken by the
defendant no.2 and an admission in law cannot be held to be binding against
a party. An estoppel can be in respect of admissions made on facts, however,
there can be no estoppel on admissions based on law. In any event, the legal
position has emerged only after the dismissal of the appeal by the Supreme
Court in Mahendra Kumar Jajodia (supra). Therefore, the judgment in
Union of India and Others v. N. Murugesan and Others, (2022) 2 SCC 25
would not be of any assistance to the plaintiffs in the present case.
22. In view of the discussion above, I am of the view that the NCLT
would be the appropriate adjudicating authority in respect of insolvency
proceedings initiated against the defendants in their capacity as personal
guarantors for the corporate debtor, Bhushan Steel.
23. The insolvency proceedings against the defendant no.2 under Section
95 of the IBC were initiated before the NCLT on 4thMarch, 2020, before
filing of the present suits and in view thereof, the interim moratorium under
Section 96 would be operable insofar as the defendant no.2 is concerned.
24. Now, I shall examine the effect of insolvency proceedings initiated
against the defendant no.1. As per the additional affidavit filed on behalf of
the defendant no.1, an insolvency application, being (IB)-710(PB)/2022,
was filed against the defendant no.1 by State Bank of India before the
NCLT, New Delhi on 28th May, 2022. The same was registered on 3rd
October, 2022. The application was listed before the NCLT on 7th October,
2022 and the matter was adjourned to 4th November, 2022. A reading of
Section 96 of the IBC makes it clear that the relevant date for the interim
moratorium to come into effect is the date ―when an application is filed
under Section 94/95‖. When the legislature has specifically used the word
―filed‖ in respect of an application under Section 94/95, the court cannot
read the same to mean the date when the application is “registered”, as is
sought to be contended on behalf of the plaintiffs.
25. The very same submission made on behalf of the plaintiffs, that the
relevant date for purposes of interim moratorium under Section 96 should be
the date when the application is registered and not the date of filing, came up
for consideration before the NCLAT. The NCLAT in the judgment dated 6th
June, 2022 in Company Appeal (AT) (Insolvency) No.724/2022 titled
Dinesh Kumar Basia v. State Bank of India held that an application under
Section 95 is treated to be filed when it is filed in the office of the Registry
at the filing counter. The submission of the appellant therein that the
application cannot be held to be filed unless it is numbered by the Registry
was rejected. The relevant observations of the NCLAT are set out below:
―13. Section 96 of the Code uses the expression – ―when an
application is filed under Section 94 and 95‖. What is the
meaning of filing an Application under Section 94 and 95 is
the question to be answered in these Appeal(s). Rule 2, sub-
rule (14) of the NCLT Rules itself defines the word ‗filed‘,
which is to the following effect:
―(14) ―filed‖ means filed in the office of the Registry of the
14. When we read Rule 2 (14) along with Rule 23 of NCLT
Rules, it is clear that Application is treated to be filed when it
is filed in the Office of the Registry at the filing counter. Thus,
filing on behalf of the Appellant/ Applicant is complete as
soon as the Application is presented at the filing counter of
the Office of the Registry. What is required to be done by the
Applicant by filing an Application is provided in Rules 22 to 24
and 26, which the Applicant has to comply with while
submitting the Application. The submission, which has been
pressed by the learned Counsel for the Appellant is that the
Application cannot be held to be filed unless it is numbered by
the Registry, that is, only when the Application is found defect
free and accorded a numbering by the Registry. Thus, a filing
within the meaning of 2019 Rules read with NCLT Rules, is the
filing at the filing counter or the filing is to be treated to be
filing only when it is numbered by the Office of the Registry, is a
question to be answered.
16. The expression ‗filing‘ is defined in several statutes. We
may first notice the dictionary meaning of filing. In P
Ramanatha Aiyar – Advanced Law lexicon (6th Edition Vol. 2,
D-1) defines the ‗filing‘ as follows:
―Filing. Delivery of a paper to the proper officer to be kept on
file; placing and leaving a paper among the files; placing a
paper in the proper official custody; presenting a paper at the
proper office and leaving it there, deposited with the papers in
such office; placing a paper in the proper official‘s custody by
the party charged with this duty, and the making of the proper
indorsement by the officer.‖
18. When as per Rule 10, sub-rule (2), when an electronic
facility is available and an Application is filed in electronic
form, the filing is complete as soon as it is registered
electronically, we do not find any support from the statutory
scheme to the submission of learned Counsel for the
Appellant that petition would be treated as filed when it is
numbered by the Registry. Numbering of an Application by
Registry is a process, which is undertaken by the Registry as
per the relevant rules and instructions. Several consequences
ensue on filing of the Application in the Registry, if it is
accepted that the filing shall be dependent on numbering of
the Application by the Registry. It will lead to uncertainty
regarding date of filing. When statutory consequences are
provided, there has to be certainty regarding such
consequences. We cannot accept any interpretation, which
may lead to uncertainty regarding the date of filing, resulting
in uncertainty, regarding enforcement of the Interim
Moratorium. Interim Moratorium has serious consequences,
which consequences flow immediately after filing of the
Application. If we accept the submission of the Appellant that
filing is postponed till it is numbered, it will lead to
uncertainty and allow the Guarantors and other Respondents
to delay the moratorium by pleading that filing is not
complete, since the Application has not yet numbered. The
statutory scheme, thus, does not in any manner support the
submission of learned Counsel for the Appellant. Numbering
of Application is essential for different purpose and cannot be
equated with the filing as contemplated by the Rules.‖
26. In the present case, the application against the defendant no.1 has
been filed under Section 95 of the IBC by State Bank of India on 28 th May,
2022, as a creditor of the corporate debtor/borrower for whom the defendant
no.1 stood as a guarantor. Therefore, in my view, the relevant date on which
the interim moratorium under Section 96 would kick in would be 28th May,
27. It is not the case of the plaintiffs that the application filed by State
Bank of India under Section 95 of the IBC against the defendant no.1 was
collusive. State Bank of India is placed in a similar situation as the plaintiffs
herein and is seeking to recover from the defendant no.1 the unresolved debt
in respect of the corporate debtor, Bhushan Steel. In fact, as is evident from
the application filed on behalf of State Bank of India, the debt of State Bank
of India is several times over the combined debt owed to the plaintiffs
herein. Therefore, this is not a case where the insolvency application has
been filed with a mala fide intention by a debtor/guarantor himself so as to
take the benefit of the interim moratorium under Section 96 of the IBC.
28. Even if it is assumed that the relevant date for the interim moratorium
under Section 96 of the IBC to come into effect is 3 rd October, 2022 i.e. the
date on which the application filed by State Bank of India under Section 95
of the IBC was registered, it would make no difference as the judgment was
yet to be pronounced on the said date. A matter is said to be pending before
a court till the time judgment is pronounced, signed and dated. The
pronouncement of judgment in a case is a part of the proceedings in a suit.
Therefore, till the time a judgment is pronounced in a suit, the parties are
free to bring to the attention of the court any subsequent development that
may have occurred after the judgment was reserved in the matter, which
could have a bearing on the judgment to be delivered by the court. It is then
for the court to determine whether it is necessary to take cognizance of such
subsequent developments and whether any further hearing is required in the
matter before rendering the judgment. Reference may be made to the
judgment in State Bank of India and Others v. S.N. Goyal, (2008) 8 SCC
92, wherein the Supreme Court has held that a Judge becomes functus officio
only after judgment is pronounced, signed and dated.
29. In the present case, there was a significant development that came to
the knowledge of the defendants after the judgment was reserved, which is
filing of the insolvency application against the defendant no.1. This was
brought to the attention of the Court by filing an additional affidavit as well
as I.A. No.17487/2022. Taking cognizance of the aforesaid developments,
the submissions of the parties were heard.
30. The mandate of Section 96 of the IBC is clear. The interim
moratorium under Section 96 of the IBC kicks in as soon as an application is
filed under Section 94/95 of the IBC and the effect of such interim
moratorium is that all pending legal proceedings are deemed to have been
stayed. This is in contrast to the moratorium under Section 14 of the IBC,
whereby the moratorium comes into effect only upon an order being passed
by the NCLT declaring a moratorium.
31. A Division Bench of this Court in Stichting Doen-postcode Loterij v.
Vin Poly Recyclers Pvt. Ltd. & Ors., 2010 (115) DRJ 708 (DB) was seized
of a similar issue in a case where judgment was reserved on the leave to
defend application filed on behalf of the defendant herein. After the
judgment was reserved, the defendant/respondent therein made a reference
to BIFR that was registered under Section 22 of the erstwhile Sick Industrial
Companies (Special Provisions) Act, 1985 (SICA). The issue before the
Division Bench was whether the judgment could be pronounced in view of
the bar contained in Section 22 of SICA. The Division Bench held that the
judgment could not be pronounced in view of the bar contained under
Section 22. The relevant observations of the Division Bench as contained in
para 8 of the judgment are set out below:
―8. We cannot but wonder, whether all the aforesaid steps
required by law to be taken in the event of the judgment being
reserved would not fall in ―proceedings‖. The literal meaning of
the language of Section 22 of the Act is that the status as prevailing
on the date of applicability of Section 22 is to remain unless the
permission of BIFR to proceed further is obtained. It would have
been open to the counsel for the appellant/plaintiff to contend that
such bar would not affect pronouncement of the judgment only if
no further proceedings were required to be undertaken by the court
thereafter and only if the action of the Court of pronouncement of
judgment was to relate back to the date of hearing. However, it is
not so in law. In the existing state of affairs, to differentiate between
the proceedings required to be taken for pronouncement of the
judgment and the proceeding required to be undertaken for taking
any other steps in the suit has no rational nexus. The purport of
Section 22 was to protect a sick company from the legal proceedings
of the nature mentioned in Section 22. Prior to amendment thereof,
suits were not included and the bar applied only to execution
proceedings. However, after the amendment in the year 1994, the
legislature deemed it appropriate to bar the institution of as well as
proceeding further with all the suits against such sick companies. If
it were to be held that the judgment could be pronounced, then we see
no reason why other proceedings in the suit, save a coercive
proceedings qua the assets of the sick company, could also not be
proceeded with further.‖
32. The dicta of the aforesaid judgement is squarely applicable in the
present case. In view of the fact that the judgement was yet to be
pronounced, the legal proceedings in the present suits remained pending
when the interim moratorium with respect to the defendant no.1 under
Section 96 of the IBC came into effect. Therefore, the proceedings in the
present suits are liable to be stayed and judgment in respect of applications
seeking leave to defend cannot be pronounced.
33. In SSMP Industries (supra) relied upon by the plaintiffs, the court
was faced with a situation when a counter claim was filed by the defendant
against the plaintiff/corporate debtor. It was in that situation that the court
noted that it would create a piquant situation if there is a moratorium in
respect of the counter claim and the suit continues to proceed in respect of
the claims of the plaintiff against the defendant. There would be a
possibility of conflicting views in respect of the same transaction as the suit
in respect of the original claim of the plaintiff would be adjudicated by this
Court and the counter claim against the plaintiff would be adjudicated by the
NCLT. Faced with such a situation, the court did not apply the moratorium
in respect of the counter claim. This is not the situation here and therefore,
the observations of the court in the aforesaid case would not be of assistance
to the plaintiffs in the present case.
34. Before the insolvency applications were filed against the defendant
no.1, counsel for the defendants had also contended that the interim
moratorium in respect of one of the co-guarantors would also apply to the
other co-guarantor for the same debt as the liability of both the co-
guarantors arise from the same debt. Reliance is placed on the words „any
debt‟ occurring in Section 96(1)(b) of the IBC. Though I need not delve into
this submission in view of the fact that insolvency proceedings have
subsequently been filed against the defendant no.1, however, since I have
heard the counsels for the parties extensively on this issue, I propose to
address the same.
35. In my view, the language of Section 96(1) of the IBC cannot be
stretched so as to include all co-guarantors within the ambit of the interim
moratorium. The reference to „all the debts‟ in Section 96(1)(a) has to be in
respect of all debts of a particular debtor. This is clear from the language
used in Section 96(1)(b)(ii) to the effect that ‗the creditors of the debtor
shall not initiate any legal action or proceedings in respect of any debt.‘
Therefore, the effect of the interim moratorium is only in respect of the
debts of a particular debtor. By no stretch of imagination can it be said to
include other independent guarantors in respect of the same debt of a
corporate debtor. Merely because an interim moratorium under Section 96 is
operable in respect of one of the co-guarantors, the same would not apply to
the other co-guarantor(s).
36. Counsel for the defendants has relied on the following paragraphs of
the judgment in V. Ramakrishna (supra):
―26. We are also of the opinion that Sections 96 and 101,
when contrasted with Section 14, would show that Section 14
cannot possibly apply to a personal guarantor. When an
application is filed under Part III, an interim-moratorium or a
moratorium is applicable in respect of any debt due. First and
foremost, this is a separate moratorium, applicable separately
in the case of personal guarantors against whom insolvency
resolution processes may be initiated under Part III. Secondly,
the protection of the moratorium under these sections is far
greater than that of Section 14 in that pending legal
proceedings in respect of the debt and not the debtor are stayed.
The difference in language between Sections 14 and 101 is for
a reason.
26.1. Section 14 refers only to debts due by corporate debtors,
who are limited liability companies, and it is clear that in the
vast majority of cases, personal guarantees are given by
Directors who are in management of the companies. The object
of the Code is not to allow such guarantors to escape from an
independent and co-extensive liability to pay off the entire
outstanding debt, which is why Section 14 is not applied to them.
However, insofar as firms and individuals are concerned,
guarantees are given in respect of individual debts by persons
who have unlimited liability to pay them. And such guarantors
may be complete strangers to the debtor — often it could be a
personal friend. It is for this reason that the moratorium
mentioned in Section 101 would cover such persons, as such
moratorium is in relation to the debt and not the debtor.
26.2. We may hasten to add that it is open to us to mark the
difference in language between Sections 14 and 96 and 101, even
though Sections 96 and 101 have not yet been brought into force.
This is for the reason, as has been held in State of Kerala v. Mar
Appraem Kuri Co. Ltd. [State of Kerala v. Mar Appraem Kuri
Co. Ltd., (2012) 7 SCC 106 : (2012) 4 SCC (Civ) 69] , that a law
―made‖ by the legislature is a law on the statute book even
though it may not have been brought into force.‖
37. In the aforesaid judgment, the observations made by the Supreme
Court were in the context of moratorium under Section 101 applying to
guarantors of debts of individuals and firms. In the present case, the
defendant no.1 is not the guarantor in respect of the debt of the defendant
no.2. They are both independent guarantors in respect of the corporate
debtor, with joint and several liability. Therefore, the reliance placed on the
aforesaid judgment is misplaced. Creditors would have an independent
recourse against either of the guarantors and the inability to recover against
one of the guarantors would not come in the way of making recoveries
against the other guarantors. Even in terms of Section 43 of the Indian
Contract Act, a plaintiff can choose to proceed against one of the co-
promisors. Further, Sections 44 and 138 of the Contract Act provide that
discharge of one of the parties/sureties does not amount to discharge of the
other party/surety. Therefore, I am of the considered view that the interim
moratorium under Section 96 in respect of one of the guarantors would not
ipso facto apply against a co-guarantor.
38. In view of the discussion above and the clear statutory mandate under
Section 96 of the IBC, the proceedings in the present suit are stayed against
both the defendants.
39. Accordingly, I.A. 5554/2021 and I.A. No.17487/2022 in CS(COMM)
8/2021 and I.A. 4996/2021, I.A. 5013/2021 and I.A. 5663/2021 in
CS(COMM) 20/2021 stand disposed of.
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The Delhi High Court recently while dealing with two summary suits filed by creditors of Bhushan Steel limited against the ex-promoters of Bhushan Steel namely Brij Bhushan Singhal and Neeraj Singhal for recovery of money held that the interim moratorium under section 96 of the Insolvency & Bankruptcy Code, 2016 (IBC/Code) is specific to all debts of a particular debtor and will not...
The Delhi High Court recently while dealing with two summary suits filed by creditors of Bhushan Steel limited against the ex-promoters of Bhushan Steel namely Brij Bhushan Singhal and Neeraj Singhal for recovery of money held that the interim moratorium under section 96 of the Insolvency & Bankruptcy Code, 2016 (IBC/Code) is specific to all debts of a particular debtor and will not be applicable to other personal co-guarantors.
Single Judge bench of Justice Amit Bansal had previously heard the parties on various occasions and reserved the judgement on 05.09.2022. Thereafter, Defendant No.1 filed an application under Order VII Rule 11 of Code of Civil Procedure on the ground that insolvency proceedings have also been filed against himself before National Company Law Tribunal, New Delhi (NCLT) after the judgement was reserved therefore, by virtue of interim moratorium under Section 96 of the Code, suit cannot proceed against any of the Defendant.
The said applications were opposed by the Plaintiffs on the ground that by virtue of Section 78 & 79 of Code, the adjudicating authority for personal guarantors is Debt Recovery Tribunal and therefore, an application under Section 95 of IBC cannot be filed before NCLT as it has no jurisdiction to entertain the same and the very same objection is also taken by the Defendants before NCLT.
It was further contended by the Defendants that interim moratorium would only apply against all debts of a particular co debtor and not any other person or co-guarantor.
The Single judge bench interpreted the provisions of Section 60(2) & Section 179 of the Code and after referring the judgment of NCLAT in the case of State Bank of India v. Mahendra Kumar Jajodia held that;
" 18. In view of the legal position elucidated above, it clear that Section 179(1), which provides the jurisdiction for the DRT with respect to insolvency matters of individuals and firms, is subject to Section 60 of the IBC. Sub-section (1) of Section 60 of the IBC provides that in relation to insolvency resolution for corporate persons, including corporate debtors and personal guarantors, the Adjudicating Authority shall be the NCLT…"
The Court also held that interim moratorium against one of the Co-guarantors will not protect the other co-guarantor even thought the liability of both the the co-guarantors arise from the same debt.
"The reference to „all the debts‟ in Section 96(1)(a) has to be in respect of all debts of a particular debtor. This is clear from the language used in Section 96(1)(b)(ii) to the effect that the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt.' Therefore, the effect of the interim moratorium is only in respect of the debts of a particular debtor. By no stretch of imagination can it be said to include other independent guarantors in respect of the same debt of a corporate debtor. Merely because an interim moratorium under Section 96 is operable in respect of one of the co-guarantors, the same would not apply to the other co-guarantor(s)"
But since, insolvency proceedings were also subsequently filed against the Defendant No.1 after the judgement was reserved, the High Court stayed the proceedings against both the defendants.
Case Title: Axis Trusteeship Services Limited v. Brij Bhushan Singhal & Anr.
Counsel for Plaintiff: Mr.DayanKrishnan, Senior Advocate with Ms. Misha, Mr.VijayantPaliwal, Ms. Moulshree Shukla, Mr. Sukrit Seth, Mr. Parth Gokhale, Ms. Megha Khandelwal and Mr.Daksh Kadian, Advocates.
Counsel for Plaintiff in 2nd Suit: Mr. Dayan Krishnan, Senior Advocate with Ms. Shally Bhasin, Mr. Chaitanya Safaya, Mr. Prateek Yadav and Mr. Prateek Gupta, Advocates.
Counsel for Defendants: Mr. Sandeep Sethi, Senior Advocate with Ms. Ranajana Roy Gawai, Ms. Vasudha Sen, Ms. Aayushi Singh, Mr. Parminder Singh and Mr. Pranjit K. Bhattacharya, Advocates.
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Writ Petition is filed praying for issuance of a Writ of
Mandamus, to direct the respondent No.5 to re-issue the Passport of the
petitioner in Application Reference No.21-2003341220 dated 28.09.2021.
2. Heard either side.
3. The writ petitioner is an Indian Citizen. He is presently
carrying on business in Malaysia. It is alleged that the petitioner was
involved in a few Criminal Cases in the year 2017 and 2018 when he was
in India. It is true that while one case is pending in F.I.R Stage, the other
two are in CC Stage.
4. The petitioner's Passport is valid up to 07.07.2023. He had
lost his Passport and he has also given a complaint before the local Police
at Malaysia. Thereafter, the petitioner approached the Indian Embassy at
Malaysia for re-issuance of the Passport. The Indian Embassy declined to
do so by citing the involvement of the petitioner in the aforesaid Criminal
5. It is well settled that the pendency of the Criminal Case at the
FIR stage, is not a bar for issuance of the Passport. It is true that if it has
culminated in filing of the final report, permission of the Court for
issuance of Passport will have to be obtained, but this requirement is
applicable only if the petitioner wants to leave India. It cannot apply when
the petitioner wants to come back to India. The learned counsel for the
petitioner submitted that in similar circumstances, a learned Judge of this
Court, in the case of Rahul Ravindran Vs. Union of India and others,
reported in 2021 (4) MLJ 289 = MANU/TN/4595/2021, had taken
favourable view and disposed of the writ petition on certain directions. I
am of the view that this writ petition can also be disposed of with similar
directions.
6. Accordingly, this Writ Petition stands disposed of with the
(a) The petitioner is directed to submit a
representation to the Indian Embassy at Malaysia enclosing a
certified/web-copy of this order made in this writ petition;
(b) Immediately on receipt of such representation, the
Passport of the petitioner shall be re-issued/renewed for a
(c) On such re-issuance/renewal, the petitioner shall
come over to India and take immediate steps to participate in
the Criminal proceedings and work out his remedy and defend
(d) The petitioner shall also file a memo before the
concerned Court, where the Criminal case is pending and bring
to the notice of the said Court, the orders passed in this writ
(e) If in case the criminal case does not come to an
end within the period for which the Passport has been re-
issued/renewed, the petitioner shall get the necessary
permission only from the concerned Court in line with the
notification issued by the Government of India through the
Ministry of External Affairs in G.S.R.298(E) dated 14.04.1976
7. However, there shall be no orders as to costs.
Ministry of External affairs,
Ministry of Overseas Indian Affairs,
3.The High Commission of India,
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The Madras High Court has observed that the pendency of a criminal case that is at the FIR stage is not a bar for the issuance of a passport. However, in cases where the final report has been filed, permission of the concerned Court has to be obtained for issuance of a Passport, it further said.
Justice GR Swaminathan further observed that such a requirement is applicable only when the concerned person wants to leave India and not when the person wants to come back to India.
In the present case, the Petitioner, carrying on a business in Malaysia, lost his passport and he filed a complaint before the local police in Malaysia. He then approached the Indian Embassy in Malaysia for the re-issuance of his Passport. However, the Indian Embassy declined to do so citing involvement of petitioner in criminal cases.
The petitioner was involved in a few criminal cases while he was in India in the years 2017 and 2018. While one case is pending in the FIR stage, the other two are in CC Stage.
Observing that earlier under similar circumstances the court had taken a favorable view, Justice Swaminathan allowed the issuance of a passport to the petitioner. The petitioner was directed to make an application to the Indian Embassy in Malaysia enclosing a copy of the order. The embassy was directed to renew/re-issue the passport of the petitioner for a period of two years.
The Court also directed the petitioner to come over to India and participate in the criminal proceedings. The petitioner was also directed to inform the concerned Court about the orders passed in the present case. It was further observed that if the criminal case does not come to an end within the period for which the Passport was renewed, the petitioner could approach the concerned Court where the criminal case was going on and get necessary permissions in this regard.
Case Title: Mr. Shaik Abdulla v. The Union of India and others
Case No: WP No 12515 of 2022
Counsel for Petitioner: Mr.M.Sricharan Rangarajan For Mr.Mohamed Ashick
Counsel for Respondent: Mr.K.Subbu Ranga Bharathi Central Government Standing Counsel (for R1,R2,R3 and R5), Mr.C.Jayaprakash Government Advocate (for R-6)
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This Criminal Original Petition has been filed to direct the respondent
police to alter the FIR in Crime No.25 of 2022 on the file of the respondent
police station by including the Sections 420, 417 and 379 IPC therein. Even
though the petitioner sought to include Section 379 I.P.C, the learned counsel
for the petitioner has not pressed the same.
2. The learned counsel for the petitioner submitted that the petitioner is
the wife and the accused is the husband. The first accused husband without
disclosing the fact that he is an impotent, married the complainant for the
second time and he also received 200 sovereigns gold jewels, with things worth
about Rs.5,00,000/- (Rupees Five Lakhs only). After the marriage, the
petitioner came to know that her husband is an impotent and subsequently, she
came to know that her husband's first marriage was ended in failure on the
ground that he is an impotent. Under these circumstances, the petitioner's
husband and his family members without disclosing the entire facts, cheated the
petitioner by not disclosing her husband's impotency and showed himself as a
competent person to consummate the marriage. After the truth came to light
about the accused husband, having no other way, to get rid of this situation, the
accused husband granted divorce by saying talak and went to U.S. Aggrieved
over the same, the petitioner given a complaint to the respondent Police. They
registered a case in Crime No.25 of 2022 under Sections 498-A and 406 I.P.C
without including the offences punishable under Sections 417 and 420 I.P.C,
even though the allegations disclosed the fact of cheating committed by the
accused persons. Hence, the petitioner filed this Petition to include the
offences punishable under Sections 417 and 420 I.P.C.
3. The learned Government Advocate (Criminal Side), appearing for the
respondents submitted that after receiving the complaint, a case has been
registered in Crime No.25 of 2022 for offences under Sections 498-A and 406
I.P.C. Now, the matter has been referred for preliminary enquiry to Social
Welfare Department, Madurai, for the purpose of conducting preliminary
enquiry. After receiving the report from the Social Welfare Department,
Madurai, they are ready to consider the alteration of F.I.R.
4. I have considered the matter in the light of the submissions made by
the learned counsel for the petitioner and the learned Government Advocate
(Criminal Side) appearing for the respondent and perused the records.
5. Perusal of the records reveals the fact that the petitioner is the
complainant. The marriage between the petitioner and the first accused took
place on 04.04.2021 at Marriott Hotel, Madurai. After the marriage, the
complainant and the accused were residing at Soolaimedu, Chennai. From the
inception of the marriage, the complainant found the different attitude of the
husband accused and also found that he is not interested with his wife in the
marriage life due to his impotency. Thereafter, the complainant came to know
that due to his impotency, he got divorced from his first wife. Thereafter, the
family of the petitioner's husband also humiliated the petitioner in various
manner. After the difference of opinion, the accused husband left the home on
04.01.2022 and the petitioner gave a complaint on 15.02.2022. The case has
been registered on 18.05.2022. A perusal of the complaint given by the
complainant clearly stated about the non-disclosure of the impotency of the
husband at the time of marriage and he made the complainant to believe that he
is a competent person to live ordinary life as husband and wife without
disclosing his incapacity and thereby, the accused husband deceived the
complainant and made her to marry him, as though he is competent to
consummate the marriage.
6. Therefore, this Court directs the respondent Police to add the offences
under Sections 417 and 420 in the case and investigate and file the final report
within four months, after receiving the report from the Social Welfare
7. With the above direction, this Criminal Original Petition is disposed
1.The Inspector of Police,
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Allowing an application for alteration of FIR filed by an estranged wife, the Madras High Court recently directed the respondent police to register offences under Section 417 and 420 of IPC for cheating against the husband who deceived the wife by non-disclosing his impotency. Justice V Sivagnanam of the Madurai Bench directed the respondent police to add the offences along with...
Allowing an application for alteration of FIR filed by an estranged wife, the Madras High Court recently directed the respondent police to register offences under Section 417 and 420 of IPC for cheating against the husband who deceived the wife by non-disclosing his impotency.
Justice V Sivagnanam of the Madurai Bench directed the respondent police to add the offences along with already existing Section 498-A and 406 and submit the final report within four months after investigation.
Therefore, this Court directs the respondent Police to add the offences under Sections 417 and 420 in the case and investigate and file the final report within four months, after receiving the report from the Social Welfare Department, Madurai
The marriage between the petitioner wife and the accused husband took place on 04.04.2021. The accused had received 200 sovereigns of gold jewels with things worth about Rs.5,00,000/-. According to the petitioner, it was after marriage that she came to know that the husband is impotent and that his first marriage ended in failure du to his impotency. The husband and his family had cheated the petitioner by not disclosing the entire facts. To get rid of this situation, the husband granted divorce by saying talak and went to US. Aggrieved, the petitioner gave a complaint and a crime was registered under Sections 498-A and 406 I.P.C. Though the allegations disclosed facts of cheating, offences punishable under Sections 417 and 420 I.P.C were not initially included. The present petition was filed seeking the same.
The respondent state submitted that after receiving the complaint, the matter has been sent to the Social Welfare Department for preliminary enquire. The alteration of FIR could be considered only after receiving the report from the department.
The court, after considering the materials observed that the accused was not interested in his wife since the inception of marriage due to his impotency. Even the family of the accused had humiliated the petitioner in various manners. The accused had not disclosed his impotency to the petitioner and made her believe that he was a competent person to live an ordinary life as husband and wife. Thus, he had deceived the complainant and made her marry him.
A perusal of the complaint given by the complainant clearly stated about the non-disclosure of the impotency of the husband at the time of marriage and he made the complainant to believe that he is a competent person to live ordinary life as husband and wife without disclosing his incapacity and thereby, the accused husband deceived the complainant and made her to marry him, as though he is competent to consummate the marriage.
In view of the same, the court was inclined to grant the prayer of the petitioner and directed addition of charges.
Case Title: Irfana Nasreen v. The State
Case No: Crl.O.P(MD)No.11840 of 2022
Counsel for the Petitioner: Mr.M.Radhakrishnan
Counsel for the Respondent: Mr.R.Suresh Kumar, Government Advocate (Criminal Side)
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I was recently hearing a matter pertaining to the affairs of a
registered society. I posed a casual question whether the membership
of the society is confined to any particular caste. The counsel for the
petitioner exclaimed in disbelief-”Milord, the society is named after
V.O.C”. I understood what he meant. For the uninitiated, I must clarify
that only those belonging to Pillaimar community can become the
members of the society.
2.We are celebrating the 75th year of independence. An iconic
freedom writer who sacrificed his everything for the sake of the nation
has been reduced into a caste symbol. The very same fate has befallen
many others too. Such thoughts crossed my mind as I heard the
petitioner in person. He is a 4th year law student in Government Law
College, Theni. He had been suspended by the impugned order which
also proposes to initiate disciplinary action against him.
3.His sin ?. He wanted installation of the portrait of
Dr.Babasaheb Ambedkar in the office room of the Principal. He also
wanted the course to be taught in Tamil. Both these demands are
unexceptionable. But the petitioner had conducted himself in a manner
so as to raise the hackles of the college administration. He is alleged to
have uttered rude and defiant words at the Principal. He had barged
into the class rooms when the classes were going on. His mobilization
efforts were seen as acts of indiscipline and misconduct. That led to the
issuance of the impugned proceedings.
4.The would-be lawyer argued his case in person. He denied
the imputations made against him. He asserted his innocence. I could
not have gone into the factual aspects. If the petitioner is made to face
the enquiry, the consequences looked uncertain. In the writ petition,
the petitioner had impleaded three of his professors in person. When
allegations of mala fide are made, the respondent concerned has to be
given an opportunity to file counter-affidavit to controvert the same. If
the matter is dealt with in routine course, it may not be taken up in the
foreseeable future. I therefore suggested to the petitioner to give up
the respondents named in person. I indicated that he could give a
handwritten letter of apology addressed to the Principal, in which event,
I could persuade the college management to give a quietus to the
issue. The writ petition was listed for admission on 10.08.2022. I
posted the matter for disposal on 12.08.2022. I made it clear that on
12.08.2022, the government counsel must report that the portrait of
Dr.Ambedkar had been put up in the office room of the Principal.
5.When the matter was taken up today, the government
counsel informed the court that in the office room of the Principal, the
portrait has been installed. This probably encouraged the petitioner to
accept my suggestion. He wrote out a handwritten letter expressing his
unconditional apologies to the Principal. This was handed over to a
teaching staff of the college in my presence.
6.The petitioner belongs to a Scheduled Caste community.
He had not indulged in any act of violence. He had merely taken up a
legitimate public cause. He is now in the fourth year. He had expressed
his sincere apologies. Therefore, the principle of proportionality
demands that the matter is given a quietus. The petitioner had already
been kept away from the classes for two weeks. He does not deserve
to suffer anything more. I therefore direct the fourth respondent to
treat the matter as closed. I make it clear that the petitioner shall not
suffer any stigma.
7.The issue regarding the portrait of Dr.Ambedkar has been
considered in quite a few judicial decisions. A bank employee was even
dismissed from service when he attempted to forcibly install the portrait
without getting permission from his superiors. A Division Bench of the
Madras High Court vide order dated 04.02.2016 in WA No.884 of 2015
came to his rescue. There is a reference to the Circular issued by the
Banking Division, Department of Economic Affairs, Ministry of Finance,
Government of India in F.No.5/7/2006-SCT(B) dated 08.09.2006 which
directs the nationalised banks to put up the portrait of Dr.Ambedkar.
G.O.(Ms)No.2363 Public (General I) Department dated 24.10.1990
issued by the Government of Tamil Nadu states that in addition to the
nine portraits named in the G.O, the portrait of Dr.B.R.Ambedkar can
also be displayed in Public Offices and building. The expression “also”
occurring in the G.O deserves to be noted. Probably, the subsequent
political developments catapulted the icon and in G.O.(Ms)No.457 Public
(General I) Department, dated 04.06.2006, Dr.Ambedkar got to be
included at Serial No.(K). When WP No.875 of 2021 was filed before
the First Bench for directing the government to display the portrait of
the incumbent Prime Minister of India and President of India in all the
government offices and public buildings in the State of Tamil Nadu as
per the aforesaid G.O, the learned Advocate General appearing for the
State submitted that the relevant notification gives an option to the
Government offices to carry one or more of the photographs of the
several national leaders.
8.Dr.Ambedkar is the architect of the Indian Constitution. He
is the very symbol of social liberation. His scholarship is unparalleled.
He can be the greatest inspiration for every law student. The Director
of Legal Studies, Chennai is requested to issue circular mandating the
installation of the portrait of Dr.Babasaheb Ambedkar in all the
Government Law Colleges in Tamil Nadu.
9.I did deal with the petitioner with an element of harshness
during court proceedings. Of course, my intention was to ensure that
the petitioner did not end up a martyr but as a lawyer at the end of his
academic studies. It is quite possible that the petitioner nurtures a
sense of hurt. I had directed remittance of cost of Rs.10,000/- in one
case in favour of Madurai Bench of Madras High Court Advocates
Welfare Board Trust. I had indicated that the money was to be spent
for the welfare of a law student belonging to scheduled caste. The said
Trust is called upon to pay a sum of Rs.10,000/- to the petitioner. It
will help him to buy some standard law texts which can be the
foundation for his law library. Dr.Ambedkar said “Be Educated, Be
Organised and Be Agitated”. The petitioner must focus on the first
advice for the next two years.
10.Charity should begin at home. As I was finalizing the draft
order dictated in the open court, I looked around. I confess that the
photograph of Dr.Babasaheb is not on the walls of my chambers. I
resolved to make good the omission at the earliest.
11.This writ petition stands disposed of accordingly. No costs.
Consequently, connected miscellaneous petitions are closed.
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While dealing with a challenge to the suspension of a law student, the Madras High Court stressed pon the need to install portraits of Dr. BR Ambedkar in Law colleges. Justice GR Swaminathan, therefore, directed the Director of Legal Studies, Chennai to issue a circular mandating the installation of portraits of Dr. Ambedkar in all Government Law Colleges. Dr.Ambedkar is the...
While dealing with a challenge to the suspension of a law student, the Madras High Court stressed pon the need to install portraits of Dr. BR Ambedkar in Law colleges. Justice GR Swaminathan, therefore, directed the Director of Legal Studies, Chennai to issue a circular mandating the installation of portraits of Dr. Ambedkar in all Government Law Colleges.
Dr.Ambedkar is the architect of the Indian Constitution. He is the very symbol of social liberation. His scholarship is unparalleled. He can be the greatest inspiration for every law student. The Director of Legal Studies, Chennai is requested to issue circular mandating the installation of the portrait of Dr.Babasaheb Ambedkar in all the Government Law Colleges in Tamil Nadu.
The judge said he would ensure that even his chambers had photographs of Dr. Ambedkar.
Charity should begin at home. As I was finalizing the draft order dictated in the open court, I looked around. I confess that the photograph of Dr.Babasaheb is not on the walls of my chambers. I resolved to make good the omission at the earliest.
The court was dealing with a plea filed by a law student who was challenging his suspension and the disciplinary action taken against him. The petitioner had sought for installation of the portrait of Dr.Babasaheb Ambedkar in the office room of the Principal and for the course to be taught in Tamil Language. However, he had uttered rude and defiant words at the Principal and had conducted himself in an undisciplined manner.
Though the petitioner had impleaded his professors, the court suggested that they be given up as the case would not be taken up in the foreseeable future if it was dealt with in a routine manner. The court suggested that the petitioner could give a handwritten apology to the Principal pursuant to which the college management could give a quietus to the issue. The court also directed the government counsel to ensure that portrait of Dr.Ambedkar had been put up in the office room of the Principal.
When compliance of the above direction was reported by the Government Advocate, the petitioner was also encouraged to accept the court's suggestion. He wrote out a handwritten letter expressing his unconditional apology to the Principal and this was handed over to the teaching staff of the college.
The court also noted that the Petitioner, who belonged to a Scheduled Caste community had not indulged in any acts of violence and had merely undertaken a legitimate public cause. He had also sought sincere apology for his actions. Therefore, the principle of proportionality demands that the matter is given a quietus, the Court said and directed the Principal to treat the matter as closed.
The court also called upon the High Court Advocates Welfare Board Trust to pay a sum of Rs. 10,000 to the petitioner which would help him to buy standard law texts. The court advised the petitioner to focus on his studies for the remaining academic years.
Dr.Ambedkar said "Be Educated, Be Organised and Be Agitated". The petitioner must focus on the first advice for the next two years.
Case Title: S Sasikumar v. The Vice Chancellor and others
Case No: W.P.(MD)No.17892 of 2022
Counsel for the Petitioner: Mr.S.Sasikumar, Party-in-person
Counsel for the Respondent: Mr.K.P.Krishnadoss (R1), Mr.V.Om.Prakash (R2-R4)
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3. The instant petition under Section 482 of the Code of Criminal
Procedure, 1973 has been filed by the petitioner praying for quashing of FIR
bearing No. 26/2017 registered at Police Station Baba Haridas Nagar, Delhi
for offences punishable under Sections 354/452/506/509/354B/34 of the
4. Notice. Mr. Panna Lal Sharma, learned APP accepts notice on behalf
of the State.
5. All the petitioners are present before this Court and have been
identified by their counsel Mr E.P. Pandey and Investigating Officer (IO)
ASI Jitender Kumar from Police Station Baba Haridas Nagar, Delhi.
6. On a query made by this Court, respondent no.2, who is present in
Court and has been identified by the IO, has categorically stated that she has
entered into compromise out of her own free will and without any pressure,
coercion or threat. It is also stated by respondent No.2 that the entire dispute
has been amicably settled between the parties vide Memorandum of
Understanding (MoU)/Settlement Deed dated 21.02.2022 entered into
between them and that she has no objection if the FIR is quashed.
7. Both the parties have appeared before this Court. The complainant
states that the parties herein are neighbours and a dispute had arisen over
some misunderstanding, pursuant to which the present cross FIRs have been
registered. The cases were registered in the year 2017 and charges have
already been framed. Thus, there has been a delay by the parties in coming
to the Court for compromise for quashing of the FIRs, thereby consuming
much judicial time and time of the investigating agency.
8. The tendency to file cases under Sections 354/509 in disputes between
neighbours to settle scores is on the rise and needs to be curbed. The
complainants in both the cases are present and state that they do not want to
pursue the matter as the matter has been amicably settled. The parties have
been cautioned and counselled. However, considering that the parties have
amicably settled the dispute out of their own free will, and without any
coercion, it will be in the interest of justice that the FIRs are quashed subject
to the accused persons depositing a sum of Rs. 10,000/- each in Lawyers’
Welfare Fund, Tis Hazari Courts, Delhi and the receipt thereof be filed
before the Registry of this Court within a week.
9. Accordingly, FIR bearing No. 26/2017, registered at Police Station
Baba Haridas Nagar, Delhi for offences punishable under Sections
354/452/506/509/354B/34 of the IPC and all consequential proceedings
emanating therefrom are quashed.
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The Delhi High Court has observed that the tendency of filing cases of outraging modesty of a woman under Section 354 and 509 of Indian Penal Code, in the disputes between neighbours to settle scores needs to be curbed.
Justice Swarana Kanta Sharma made the observation while quashing an FIR registered under sec. 354, 452, 506, 509, 354B and 34 of Indian Penal Code.
The complainant had stated that the parties were neighbours and a dispute had arisen over some misunderstanding, pursuant to which cross FIRs were registered.
The cases were registered in the year 2017 and charges had already been framed. Thus, the Court noted that there was a delay by the parties in coming to the Court for compromise for quashing of the FIRs, thereby consuming much judicial time and time of the investigating agency.
"The tendency to file cases under Sections 354/509 in disputes between neighbours to settle scores is on the rise and needs to be curbed," the Court said, after it was informed by the complainants that they did not want to pursue the matter as the same had been amicably settled.
While cautioning and counselling the parties, the Court quashed the FIR subject to the accused persons depositing a sum of Rs. 10,000 each in Lawyers' Welfare Fund, Tis Hazari Courts.
The plea was accordingly disposed of.
Case Title: TARUN AND ORS v. STATE (NCT OF DELHI) AND ANR.
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Case :- CONTEMPT APPLICATION (CRIMINAL) No. - 5 of 2022
Counsel for Applicant :- Sudhir Mehrotra
Counsel for Opposite Party :- R.V. Pandey,Abhishek Mishra,Ashutosh
Pursuant to order dated 04.08.2022, contemnor is present in the Court.
Contemnor vide order dated 04.08.2022, was held guilty for committing
contempt for breach of the mandate pronounced by the Supreme Court in
Arnesh Kumar Vs. State of Bihar reported in 2014 (6) SCJ 219.
In the affidavit, the contemnor pleads for taking a sympathetic view on the
quantum of punishment, for the reason, that he is a young officer and his
wife is expecting. Further, it is pleaded that he is the sole bread earner of
his family, including, four brothers and one sister; he further pleads that
punishment would adversely affect his career. The contemnor, therefore,
tenders an unconditional apology.
We have considered the averments made in the affidavit and submissions
of the learned counsel for the contemnor.
This Court would not lose sight of the fact that the contemnor, being a
member of disciplined Force, in exercise of his powers of arrest, has
willfully and deliberately bypassed the mandate of the Supreme Court in
Arnesh Kumar (supra), which is binding on all the authorities, including,
the Magistrate, in view of Article 141 of the Constitution of India.
'Apology' means regretful acknowledgement or an excuse for failure. It is
an explanation offered to a person affected by one's action that no offence
was intended. Further, held 'apology' should be unquestionable in sincerity
and tempered with sense of genuine remorse and repentance, and not a
calculated strategy to avoid punishment. The apology tendered by the
contemnor is a matter of last resort, therefore, it cannot be accepted.
It has been noted by the Court in the order dated 04.08.2022, that the
contemnor, though, has served a notice under Section 41-A Cr.P.C. on the
accused, but, to bypass the mandate of the Supreme Court, he willfully and
deliberately recorded in the GD that accused declined to accept the terms
and condition of the notice. Further, communal colour was attempted to be
given by the contemnor taking advantage that the accused belongs to a
muslim community, by stating that there was an apprehension of
communal riots. It is noted in the order that no such apprehension did exist
as admittedly, the FIR was not lodged at the police station until
intervention by the higher authorities. There is no entry in the GD that
there was any such apprehension of communal flare up in the event of the
accused not being arrested. The misleading entry in the GD was made
willfully and deliberately with sole purpose to bypass the mandate in
Arnesh Kumar (supra), in order to arrest the accused. The contemnor, in
the circumstances, has circumvent the mandate which was binding upon
In the event of the Court taking a sympathetic view, it would not sub-serve
public interest and the administration of justice. In order to secure public
respect and confidence in the judicial process, the Court is constrained in
awarding punishment to the contemnor, Investigating Officer, Shri
Chandan Kumar, Incharge of Police Station, Kanth, District Shahjahanpur,
for committing contempt.
In the circumstances, Shri Chandan Kumar, Incharge of Police Station,
Kanth, District Shahjahanpur, is sentenced to undergo simple
imprisonment for 14 days and fine is imposed at Rs. 1000/-. On default,
the contemnor shall undergo one week further simple imprisonment.
The sentence shall be kept in abeyance for 60 days from today as the
learned counsel for the contemnor pleads that the contemnor would like to
prefer an appeal under Section 19 of Contempt of Court Act, 1971.
In view thereof, the contempt petition and pending application, if any,
stands disposed of.
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The Allahabad High Court last week sentenced a police officer to undergo simple imprisonment for 14 days after holding him guilty of contempt for deliberately bypassing the mandate of the Supreme Court in the case of Arnesh Kumar v. State of Bihar.As per the Arnesh Kumar judgment, the arrest should be the exception where the offence is punishable with less than 7 years imprisonment, and...
The Allahabad High Court last week sentenced a police officer to undergo simple imprisonment for 14 days after holding him guilty of contempt for deliberately bypassing the mandate of the Supreme Court in the case of Arnesh Kumar v. State of Bihar.
As per the Arnesh Kumar judgment, the arrest should be the exception where the offence is punishable with less than 7 years imprisonment, and notice for appearance under Section 41A CrPC should be served on the accused in such cases instead of arrest. The arrest can be made in exceptional circumstances in such cases, but the reasons have to be recorded in writing.
In the instant case, the contemnor [Chandan Kumar, Incharge of Police Station, Kanth, District Shahjahanpur] though served a notice under Section 41-A Cr.P.C. on the accused, but, he had willfully and deliberately recorded in the GD that the accused declined to accept the terms and condition of the notice.
In fact, he tried to give a communal color to the matter by stating that since the accused belongs to a Muslim community and therefore, there was an apprehension of communal riots, if he was not arrested.
However, the Court noted that no such apprehension did exist as admittedly, the FIR was not lodged at the police station until intervention by the higher authorities. There was no entry in the GD that there was any such apprehension of a communal flare-up in the event of the accused not being arrested.
This was done to somehow arrest the accsued by bypassing Supreme Court's guidelines laid down in the case of Arnesh Kumar.
"The misleading entry in the GD was made willfully and deliberately with the sole purpose to bypass the mandate in Arnesh Kumar (supra), in order to arrest the accused. The contemnor, in the circumstances, has circumvented the mandate which was binding upon him," the Court held as it found him guilty of contempt.
The Bench of Justice Suneet Kumar and Justice Syed Waiz Mian refused to take a sympathetic view on the matter of sentencing, as it noted that the same would not sub-serve the public interest and the administration of justice.
Calling his approach as 'casual', the Court made the following observation:
"The approach of the contemnor has been casual, thereby, imposing himself over and above the law. The contemnor being a member of the disciplined force is bound to comply the mandate of law, breach thereof would entail civil and criminal consequence. The apology tendered is qualified and guarded to escape the proceedings."
Consequently, in order to secure public respect and confidence in the judicial process, the Court ordered Chandan Kumar, Incharge of Police Station, Kanth, District Shahjahanpur to undergo simple imprisonment for 14 days and imposed a fine of Rs. 1000/ for committing contempt.
However, the sentence was kept in abeyance for 60 days as the counsel for the contemnor pleaded that the contemnor would like to prefer an appeal under Section 19 of Contempt of Court Act, 1971. In view thereof, the contempt petition was disposed of.
Appearances
Counsel for Applicant :- Sudhir Mehrotra
Counsel for Opposite Party :- R.V. Pandey,Abhishek Mishra,Ashutosh Kumar Pandey,R.V. Pandey
Case title - In Re v. Shri Chandan Kumar, Investigating Officer
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1. Heard Sri Satya Prakash Rathor, learned Amicus Curiae for the
appellant and Sri S.B. Maurya, learned counsel for the State and perused the
material on record.
2. This jail appeal has been filed by the appellant Gabbar Patel @
Dharmendra challenging the impugned judgement and order dated
25.09.2006 passed by Additional District & Sessions Judge, Court No. 14,
Varanasi in Sessions Trial No. 784 of 2004, by which he has been convicted
and sentenced under Section 307 I.P.C. to undergo three years and six
months rigorous imprisonment.
3. The prosecution case as per the First Information Report lodged on
04.03.2003 at about 01:40 am is that the police informer informed the police
that one person standing at Jalalpur Mod and is about to commit an incident
who is having narcotics and a country made pistol with him, on which, the
S.O. Sunil Kumar Bisnoi along with his accompanying police personnels
proceeded towards the said person. They had torch with them. The said
person all of sudden fired upon them to which they escaped and then they
followed him after which near Jalalpur Mod he showed them his weapon but
they arrested him on 03.03.2003 at about 23:40 hrs after overpowering him.
They recovered a 12 bore country made pistol from his right hand and
immediately upon opening its barrel found an empty cartridge. The said
person was asked about his identity to which he disclosed that his name is
Gabbar Patel @ Dharmenndra Patel and told his father’s name and
address. He further told them that he has diazepam tablets with him. He
told them to take his search after which from his left pocket something
wrapped in paper was found, on opening of which small tablets were
recovered which were on counting found to be 300 tablets. The country
made pistol, empty cartridge and the tablets were recovered and a recovery
memo was prepared which was duly signed by him. The said recovery
memo is Exb: Ka-1 to the records.
4. On the basis of the said recovery memo, a First Information Report
was lodged on 04.03.2003 at 01:40 am as Case Crime No. 29 of 2003
under Section 307 IPC, Case Crime No. 30 of 2003, under Section 3/25
Arms Act and Case Crime No. 31 of 2003, under Section 8/22 of N.D.P.S.
5. The matter was investigated and a charge sheet no. 34 of 2003 dated
24.03.2003 was filed against the accused-appellant Gabbar Patel @
Dharmendra under Section 307 I.P.C. The same is Ex. Ka- 5 to the records.
6. Vide order dated 03.05.2005 passed by the Additional Sessions
Judge, Court No. 14, Varanasi charge was framed under Section 307 I.P.C.
against the accused Gabbar Patel @ Dharmendra. He pleaded not guilty
and claimed to be tried.
7. In the trial, Sup-Inspector Ajay Srivastava was examined as PW-1.
Amongst the prosecution documents, the recovery memo was produced as
Exb: Ka-1, the Chik FIR was Exb: Ka-2, the GD of registration of the FIR
was Exb: Ka-3, site plan was Exb: Ka-4 and the charge sheet was Exb: Ka-
5 to the records.
8. After recording of the evidence of PW-1, the accused in his
statement recorded under Section 313 Cr.P.C. in reply to question no. 4
stated that he committed a fault. He pleads guilty. Further, to question no.
6 he states that he is in jail since long time and as such leniency be shown.
The trial court thus after his confession under Section 313 Cr.P.C.
concludes the trial as passed the impugned judgment by stating that on the
basis of statement of PW-1 and the recovery memo along with the
confession of the accused-appellant, the prosecution has succeeded its case
beyond reasonable doubt and convicts him as stated above.
9. PW-1 Ajay Srivastaava was posted as Chowki In-charge Harhua,
Police Station Bada Gaon, District Varanasi. On the day of the incident, he
was standing with the S.O. at Jamalpur Mod and were talking about
miscreants, on which, the police informer came and on his information and
pointing out an effort was made to arrest the accused-appellant after which
he fired upon the police party from his country made pistol but the police
party was saved and no one received injury. He was overpowered and was
apprehended along with 12 bore country made pistol, one live cartridge
and one empty cartridge along with 300 tablets of diazepam. The recovery
memo was prepared on the dictation of S.O. Sunil Kumar. The articles
were sealed and the accused was brought to the Police Station and the First
Information Report was lodged. He proves the handwriting of the Head
Constable who transcribed the First Information Report. The investigation
was given to Sup-Inspector Vipin Kumar Rai who concluded it and filed a
charge sheet. He proves the handwriting of Vipin Kumar Rai also. No
cross examination was done.
10. The accused then in reply to question no. 4 in his statement recorded
under Section 313 Cr.P.C. was asked as to why a case has been lodged
against him, to which, he states that he is at fault. He admits his guilt. In
reply to the question no.1 with regards to his making a fire on the police
party, he states that it is true. He further with regards to the recovery of the
weapon and the recovery memo, does not say anything. Further, in reply to
the documents and investigation he does not say anything. In the last reply
to a question no. 6 as to whether he wants to say anything, he states that he
is in jail since a long time and leniency be shown to him.
11. The trial court came to a conclusion that the prosecution has proved
its case beyond reasonable doubts on the basis of the statement of PW-1
Ajay Srivastava, the recovery memo Exb: Ka-1 and acceptance of guilt by
the accused in his statement recorded under Section 313 Cr.P.C. and thus
convicts him as stated above.
12. Learned Amicus Curiae argued that the view as taken by the trial
court is fully perverse and illegal. The prosecution has to stand on its own
leg and prove its case beyond reasonable doubt. It is argued that admittedly
the present case is a case of no injury. The recovery memo although is on
record and has been exhibited by the prosecution but there is no
corroborative evidence to show the use of the said weapon in the present
case. There is no opinion of any expert or even evidence to the effect that
the said weapon was sent for analysis to show that there was fire made by
the accused-appellant. The corroboration in so far as the use of the said
weapon is concerned, is missing. It is argued that even the prosecution has
not come forward to show that the said weapon was sent to the ballistic
expert for its testing which would go to corroborate its use in the present
case. It is argued that merely by pleading guilty in the statement recorded
under Section 313 Cr.P.C., the accused cannot be held guilty. At the stage
of framing of charge, the accused had pleaded not guilty and claimed to be
tried. It was the duty of the prosecution to stand on its leg to show the
involvement of the appellant. It is argued that the impugned judgment and
order deserves to be set aside and the appellant deserves be acquitted.
13. Per contra, learned counsel for the State opposed the arguments of
learned Amicus Cruiae and argued that the statement of PW-1 has clinched
the issue. The implication of the appellant is there. He was apprehended at
the spot with the weapon by which he made a fire. The accused has
confessed his guilt in his statement under Section 313 Cr.P.C. The same are
sufficient to reach to a conclusion of his being involved in the matter and
convict him. Hence, the appeal deserves to be dismissed.
14. After having heard learned counsels for the parties and perusing the
records, the issue involved in the present matter lies in a small compass. It
is as to whether after pleading guilty in the statement recorded under
Section 313 Cr.P.C. and the prosecution proving the recovery memo and
one witness coming and the deposing against the accused who was one of
the team members of the arresting team, is sufficient for conviction or not.
Admittedly, the present case is a case of no injury. It is stated that the
accused made a solitary fire but the same did not hit anyone. He was later
on overpowered and apprehended and stated to be having a 12 bore
country made pistol with one empty cartridge along with one live cartridge
in his possession. The said articles were recovered from him.
15. The prosecution is silent as to whether the said weapon was sent to
the ballistic expert for examination which would corroborate its use at that
point of time. Mere recovery of a weapon and one empty cartridge would
not be sufficient to prove the use of the said weapon without any
corroborating evidence.
16. The next question which crops up is as to whether the accused if
pleads guilty in his statement under Section 313 Cr.P.C. is also the
circumstance to rest against him or not. In the present case, as has been
stated above after charges were framed by the concerned court, the accused
had pleaded not guilty and had claimed to be tried.
In his statement recorded under Section 313 Cr.P.C. he has not given
any reply to certain questions and further states of his being guilty and then
in addition states of the court taking a lenient view in the sentence as he is
in jail since long time. Law as it stands undisputed is that the statement
under Section 313 Cr.P.C. is not evidence. It is not a substantive peace of
evidence. It can be used for appreciating evidence led by the prosecution to
accept or reject it. However, it cannot be said to be a substitute for the
prosecution evidence. It is only the version or stand of the accused by way
of explanation to a question put by the prosecution regarding incriminating
material appearing against him which are brought to his notice and he is
given a chance to reply them. The statement is not made on oath. Yet it can
be taken into consideration at the trial against an accused for arriving at his
guilty or otherwise but the prosecution has to at the very first instance
prove its case beyond reasonable doubts against him and then his
explanation or answer to such incriminating circumstance should be
looked into. It cannot be said that mere stating of being guilty in the
statement under Section 313 Cr.P.C. will end the issue and would lead the
route only to the guilt of the accused without prosecution establishing its
case beyond reasonable doubt against him through cogent, reliable and
admissible evidence.
17. In the present case, there is no other witness examined by the
prosecution. Although, the quality of evidence is needed in a case and not
the quantity. In the present case, only one witness was examined who was
a member of the said police team. He has deposed for each and everything
of the case. The corroboration of the use of the weapon is not present. The
weapon was not sent for expert analysis. The case is a no injury case. It
cannot be said that merely by pleading guilty in the statement under
Section 313 Cr.P.C. the accused can be pinned down and a conviction can
be recorded against him.
18. Looking to the facts and circumstances of the case and in view of
the above discussion as done, the accused-appellant deserves to be
extended the benefit of doubt and as such the present appeal is allowed.
The appellant is acquitted of the charges levelled against him. The
appellant if is in jail, shall be released forthwith.
19. Office is directed to transmit the lower court records along with the
copy of this judgment to the trial court forthwith for its compliance and
necessary action.
20. Sri Satya Prakash Rathor, learned Amicus Curiae who was
appointed Amicus Curiae vide order dated 04.08.2022 passed by this Court
assisted the Court in deciding the appeal.
21. Office is directed to pay a sum of Rs. 8,000/- for assistance of the
Court to learned Amicus Curiae within two months from today.
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The Allahabad High Court has observed that even if an accused pleads guilty in his statement recorded under Section 313 CrPC, even then the prosecution has to establish its case beyond so as to obtain an order of the court regarding the guilt of the accused."...mere stating of being guilty (by the accused) in the statement under Section 313 Cr.P.C. will end the issue and would lead the route...
The Allahabad High Court has observed that even if an accused pleads guilty in his statement recorded under Section 313 CrPC, even then the prosecution has to establish its case beyond so as to obtain an order of the court regarding the guilt of the accused.
"...mere stating of being guilty (by the accused) in the statement under Section 313 Cr.P.C. will end the issue and would lead the route only to the guilt of the accused without prosecution establishing its case beyond reasonable doubt against him through cogent, reliable and admissible evidence," the bench of Justice Samit Gopal remarked.
With this, the Court acquitted Accused/Gabbar Patel of charges under section 307 IPC by extending the benefit of the doubt.
The case in brief
The police were informed that the accused was standing on the road, having narcotics and a country-made pistol with him and was about to commit an incident. The police personnels proceeded towards the Accused and that is when, all of sudden, the accused fired upon them after which they escaped, however, later on, they arrested him after overpowering him.
The Accused was charge-sheeted under section 307 IPC, the trial was conducted and after the recording of the evidence of PW-1, the accused (while making a statement under Section 313 CrPC) was asked as to why a case has been lodged against him, to which, he stated that he was at fault. He admits his guilt. In reply to another question with regards to his making a fire on the police party, he stated that it is true. Further, in his last reply as to whether he wanted to say anything, he stated that he is in jail for a long time and leniency be shown to him.
Consequently, the trial court concluded the trial and passed the impugned judgment by stating that on the basis of the statement of PW-1 and the recovery memo along with the statement of the accused under section 313 CrPC, the prosecution had succeeded in its case beyond reasonable doubt and convicted him. Challenging that very order, the accused moved to the High Court.
Court's observations
At the outset, the Court noted that there was no injury to anyone and the accused made a solitary fire but the same did not hit anyone. Further, the Court noted that a 12 bore country made pistol with one empty cartridge along with one live cartridge was found in his possession, yet, the prosecution did not show whether the said weapon was sent to the ballistic expert for examination which would corroborate its use at that point of time.
In view of this, the Court emphasized that mere recovery of a weapon and one empty cartridge would not be sufficient to prove the use of the said weapon without any corroborating evidence.
Regarding the question as to whether the accused, if pleads guilty in his statement under Section 313 Cr.P.C. is also the circumstance to rest against him or not, the Court made the following observations:
"In his statement recorded under Section 313 Cr.P.C. he has not given any reply to certain questions and further states of his being guilty and then in addition states of the court taking a lenient view in the sentence as he is in jail since long time. Law, as it stands undisputed, is that the statement under Section 313 Cr.P.C. is not evidence. It is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. However, it cannot be said to be a substitute for the prosecution evidence."
Further, taking into account the fact that in the present case, only one witness was examined who was a member of the said police team, who had deposed for each and everything of the case, and that even the corroboration of the use of the weapon was not present.
"The weapon was not sent for expert analysis. The case is a no injury case. It cannot be said that merely by pleading guilty in the statement under Section 313 Cr.P.C. the accused can be pinned down and a conviction can be recorded against him," the Court further held as it acquitted the appellant/accused of the charges levelled against him.
Case title - Gabbar Patel @ Dharmendra v. State [JAIL APPEAL No. - 5752 of 2007]
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The police after investigation submitted a charge
sheet for the offences punishable under Section 498 A
read with Section 34 of IPC and Sections 3 and 4 of
2. The summary of the charge sheet is that
the marriage of Accused No.1 and respondent No.2
was solemnized on 08.10.2009 in accordance with
islamic customs and tradition and thereafter they
resided at the marital home along with other accused.
Out of the said wed-lock, a child by name Rehan was
born on 04.06.2011 in India. Thereafter accused No.1
and respondent No.2 along with the child went to USA
in the month of December-2011. They returned to
India in the year 2016 and during their stay in India,
respondent No.2 was harassed by accused to bring
dowry for the purpose of higher education of accused
No.1 in USA. On 08.02.2017 respondent No.2 went
back to USA along with the child and later on
10.02.2018 she was sent back forcibly to India. On
28.05.2018 she went to the house of accused Nos.2 to
4. At that point of time, the said accused refused to
allow her to enter the house.
3. Learned Magistrate after taking cognizance
of the aforesaid offences issued summons. Taking
exception of the same, this petition is filed.
4. Learned counsel for the petitioner submits
that except omnibus and general allegations there is
no specific allegation as against the accused for
having demanded dowry or for having assaulted
respondent No.2. He further submits that marriage of
accused No.1 and respondent No.2 was dissolved on
29.01.2018 by the IOWA Court in USA and also
permanent alimony of $50,000 was paid to
respondent No.2. Hence, he submits that the charge
sheet filed against the petitioners-accused in the
absence of any essential ingredients so as to
constitute the commission of aforesaid offences
alleged against the petitioners-accused is without
5. Learned counsel appearing for respondent
No.2 submits that the order granting divorce by the
Court of USA is obtained fraudulently without issuing
notice to respondent No.2 and the same has no
binding on respondent No.1. The charge sheet
material clearly discloses commission of the offences
alleged against the accused and the same does not
warrant any interference.
6. I have examined the submissions of the
learned counsels for the parties.
7. It is undisputed that respondent No.2
resided with accused No.1 along with child in USA.
The allegation is that respondent No.2 was sent back
to India forcibly on 16.02.2018 without any
reasonable cause. It is also undisputed that the
marriage of respondent No.2 with accused No.1 was
dissolved by the IOWA Court at USA and permanent
alimony has been deposited in the bank account of
respondent No.2 which clearly implies that marriage of
accused No.1 with respondent No.2 was dissolved and
the contention of learned counsel for respondent No.2
that the order of divorce was obtained fraudulently
without issuing notice to respondent No.2 cannot be
considered in this petition. Hence, the marriage of
respondent No.2 having been dissolved with accused
No.1, the charge sheet filed against accused is without
any substance. In the absence of any essential
ingredients so as to constitute the commission of
offences alleged against the petitioners-accused, the
charge sheet filed is not sustainable.
8. Even otherwise, except omnibus and
general allegations there are no specific allegations as
to how and in what manner each of the accused
subjected respondent No.2 to cruelty or assaulted her.
Hence, the charge sheet filed on the basis of omnibus
and general allegations is also without any substance.
The dispute between the parties arises out of martial
discord, however, given a criminal texture so as to
pressurize the petitioners/accused to arrive at
9. The allegation against accused Nos.2 to 4
subjecting respondent No.2 to cruelty was during her
alleged stay in India in 2017. Respondent No.2
returned to India on 10.02.2018 and the FIR was
lodged on 30.05.2018 without offering any
explanation. Hence, it is implied that the FIR was
lodged against accused Nos.2 to 4 with an ulterior
motive to wreak vengeance and with revengeful
10. The probability of the conviction of the
petitioners-accused being remote and bleak, it would
be abuse of process of law, if the criminal proceeding
is allowed to be continued against the petitioners-
accused. Accordingly, i pass the following:
1 Criminal petition is allowed.
2. The impugned proceedings in
C.C.No.1426/2018 pending on the file of Addl. Civil
Judge & JMFC, Bantwal, D.K., is hereby quashed.
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The Karnataka High Court while quashing a case registered by a woman against her ex-husband and in-laws under section 498-A (dowry harassment) said the charge sheet filed on the basis of omnibus and general allegations is without any substance.
A single judge bench of Justice Hemant Chandangoudar allowed the petition filed by Dr. Shahul Hameed Valavoor and others and quashed the prosecution registered under sections 498 A read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
As per the prosecution, the couple married in 2009 in accordance with Islamic customs and tradition and thereafter they resided at the marital home along with other accused. It was alleged that accused No.1 (husband) and respondent No.2 (complainant) along with the child went to the USA in the month of December-2011. They returned to India in the year 2016 and during their stay in India, respondent No.2 was harassed by accused to bring dowry for the purpose of higher education of accused No.1 in USA. In February 2017, respondent No.2 went back to the USA along with the child but later on was forcibly sent back to India, it was alleged.
In May 2018, she went to the house of accused Nos.2 to 4 but was denied entry, it was further alleged.
Findings:
The bench noted that it is also undisputed that the marriage of respondent No.2 with accused No.1 was dissolved by the IOWA Court at USA and permanent alimony has been deposited in the bank account of respondent No.2 which clearly implies that marriage of accused No.1 with respondent No.2 was dissolved. The contention that the order was obtained fraudulently without issuing notice to respondent No.2 cannot be considered in this petition.
"Hence, the marriage of respondent No.2 having been dissolved with accused No.1, the charge sheet filed against accused is without any substance. In the absence of any essential ingredients so as to constitute the commission of offences alleged against the petitioners-accused, the charge sheet filed is not sustainable."
Further it said, "Even otherwise, except omnibus and general allegations there are no specific allegations as to how and in what manner each of the accused subjected respondent No.2 to cruelty or assaulted her. Hence, the charge sheet filed on the basis of omnibus and general allegations is also without any substance."
The bench then opined that the dispute between the parties arises out of marital discord, however, given a criminal texture so as to pressurise the petitioners/accused to arrive at settlement.
Further the bench said respondent No.2 returned to India in February 2018 but the FIR was lodged only in May 2018, without offering any explanation. "Hence, it is implied that the FIR was lodged against accused Nos.2 to 4 with an ulterior motive to wreak vengeance and with revengeful intent."
Accordingly, it allowed the petition.
Case Title: DR. SHAHUL HAMEED VALAVOOR & Others v. STATE OF KARNATAKA BY
BANTWAL RURAL POLICE, BANTWAL.
Case No: CRIMINAL PETITION No.7036 OF 2019
Date of Order: 19TH DAY OF SEPTEMBER, 2022
Appearance: VISHWAJITH RAI.M, ADVOCATE A/W ANANYA RAI, ADVOCATE for petitioners; SHANKAR.H.S, HCGP FOR R1; B.LETHIF, ADVOCATE FOR R2
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This intra Court appeal arises out of a judgment
dated 09.02.2010 passed by the learned Single Judge
by which writ petition preferred by the appellant
has been dismissed and order dated 18.08.2008
passed by the Karnataka Information Commission has
been upheld. In order to appreciate the grievance of
the appellant, relevant facts need mention which are
stated infra.
2. The BIAL is a Company incorporated under
the provisions of the Companies Act, 1956 which has
been incorporated with an object to develop an
international airport with private sector participation
at Devanahalli, Bangalore. A share holder's
agreement dated 23.01.2002 has been entered into
between Karnataka State Industrial Investment and
Authority of India (AAI), Siemens Project Ventures
GmbH, Flughafen Zuerich AG. Larsen and Toubro
Limited and BIAL. Under the said agreement, the
management of affairs of the Company vests with the
Board of Directors.
3. The respondent No.2 made an application
under Section 4(1)(b) of the Right to Information Act,
2005 (hereinafter referred to as 'the Act') seeking suo
motu declaration by the appellant as to the contents
provided under Section 41(1)(b) of the Act. The BIAL
sent a reply stating that it is not a public authority as
defined under Section 2(h) of the Act. The respondent
No.2 thereupon moved the Karnataka Information
Commission (hereinafter referred to as 'the
Commission'). A Full Bench of the Commission by an
order dated 18.08.2008, inter alia, held that BIAL is a
public authority as defined under Section 2(h) of the
Act and directed BIAL to furnish the information to
respondent No.2 within one month.
4. The aforesaid order dated 18.08.2008 was
subject matter of challenge in a writ petition. The
learned Single Judge, by an order dated 09.02.2010,
dismissed the writ petition. In the aforesaid factual
background, this appeal arises for our consideration.
5. Learned Senior counsel for the appellant -
BIAL submitted that the Supreme Court in
ORS. Vs. STATE OF KERALA AND ORS1, has laid
down the criteria to determine whether an authority is
a public authority under Section 2(h) of the Act. It is
further submitted that aforesaid question of fact has
to be determined on the basis of the criteria laid down
by the Supreme Court in the aforesaid decision and
therefore, the order passed by the learned Single
Judge as well as the Commission be set aside and the
matter be remitted to the Commission for decision
6. On the other hand, learned Senior counsel for
the respondent No.2 submits that the Commission
has considered all the relevant aspects and the
findings of the Commission are not opposed to the
aforesaid decision of the Supreme Court.
7. We have considered the submissions made on
both sides and have perused the record. The
Commission had passed an order on 18.08.2008. The
decision of the Supreme Court in THALAPPALAM
SERVICE CO-OP. BANK LTD. AND ORS. supra, is
subsequent in point of time. The Supreme Court, in
the aforesaid decision, inter alia, has laid down the
criteria for determination of an authority as public
authority. The question which arises for
consideration is whether BIAL is a body owned,
controlled or substantially financed by the funds
provided by the appropriate Government. The
Supreme Court has dealt with the expression
'substantially financed' used in Section 2(h) of the Act
and has held that merely providing subsidies, grants,
exemptions, privileges, etc. as such cannot be said to
be providing fund to a substantial extent unless the
record shows that funding was so substantial to the
body which practically runs by such funding but for
such funding it would struggle to exist.
8. It has further been held that burden to show
that a body is owned, controlled or substantially
financed by the funds provided by the appropriate
Government is on the applicant who seeks the
information. It has further been held that categories
mentioned in Section 2(h) of the Act are exhaustive
and therefore, there is no question of adopting a
liberal construction to the expression 'public
9. In our considered opinion, the question
whether the BIAL is a public authority within the
meaning of Section 2(h) of the Act is required to be
adjudicated with reference to decision of Supreme
Court in THALAPPALAM SERVICE CO-OP. BANK
LTD. AND ORS. supra. The aforesaid question
requires adjudication of facts. Therefore, we are
inclined to remit the matter to the Commission.
10. For the aforementioned reasons, order dated
09.02.2010 passed by the learned Single Judge as
well as order dated 18.08.2008 passed by the
Karnataka Information Commission are hereby set
The matter is remitted to the Commission. The
Commission shall decide the matter afresh within a
period of three months, after affording an opportunity
of hearing to the parties.
Needless to state that all contentions are kept
open which may be agitated by the parties before the
Accordingly, the appeal is disposed of.
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The Karnataka High Court has directed the State Information Commission to decide afresh whether the Bangalore International Airport Limited (BIAL) is a public authority within the meaning of Section 2(h) of the Right to Information Act.
A bench of Justices Alok Aradhe and S Vishwajith Shetty allowed the appeal preferred by BIAL against a single judge's order which upheld the Commission's decision declaring the company to be a 'public authority' and asking it to furnish certain information sought by the private Respondent under RTI Act.
The division bench noted that the impugned order of the State Information Commission was passed on August 18, 2008, prior to the Supreme Court's decision in Thalappalam Service Co-Op. Bank Ltd. & Ors. v. State Of Kerala & Ors., which laid down the criteria to determine whether an authority is a public authority under Section 2(h) of the Act.
It observed,
"In our considered opinion, the question whether the BIAL is a public authority within the meaning of Section 2(h) of the Act is required to be adjudicated with reference to the decision of the Supreme Court in Thalappalam Service Co-Op. Bank Ltd. & Ors., (2013) 16 SCC 82. The aforesaid question requires adjudication of facts. Therefore, we are inclined to remit the matter to the Commission."
BIAL is a Company incorporated under Companies Act, 1956 with an objective to develop an international airport with private sector participation at Devanahalli, Bangalore. A shareholder's agreement dated 23.01.2002 has been entered into 4 between Karnataka State Industrial Investment and Development Corporation Ltd. (KSIIDC), Airport Authority of India (AAI), Siemens Project Ventures GmbH, Flughafen Zuerich AG. Larsen and Toubro Limited and BIAL. Under the said agreement, the management of affairs of the Company vests with the Board of Directors.
Respondent Benson Issac, had filed an application under Section 4(1)(b) of RTI Act seeking suo moto declaration by BIAL as to the contents provided under Section 41(1)(b) of the Act. The company responded by stating that it is not a public authority as defined under Section 2(h) of the Act.
Issac then moved the Karnataka Information Commission and obtained relief from a Full Bench. This order was challenged in a writ petition and came to be upheld by a Single Judge on February 9, 2010. Following which the intra-court appeal was filed.
The High Court observed,
"The Supreme Court has dealt with the expression 'substantially financed' used in Section 2(h) of the Act and has held that merely providing subsidies, grants, exemptions, privileges, etc. as such cannot be said to be providing fund to a substantial extent unless the record shows that funding was so substantial to the body which practically runs by such funding but for such funding it would struggle to exist."
It added "It has further been held that the burden to show that a body is owned, controlled or substantially financed by the funds provided by the appropriate Government is on the applicant who seeks the information. It has further been held that categories mentioned in Section 2(h) of the Act are exhaustive and therefore, there is no question of adopting a liberal construction to the expression 'public authority'."
Following which it held "The aforesaid question requires adjudication of facts. Therefore, we are inclined to remit the matter to the Commission. For the aforementioned reasons, order dated 09.02.2010 passed by the learned Single Judge as well as order dated 18.08.2008 passed by the Karnataka Information Commission are hereby set aside. The matter is remitted to the Commission. The Commission shall decide the matter afresh within a period of three months, after affording an opportunity of hearing to the parties."
Case Title: BANGALORE INTERNATIONAL AIRPORT LIMITED v. KARNATAKA INFORMATION COMMISSION & others
Case No: W.A. NO.900 OF 2010
Date of Order: 30TH DAY OF NOVEMBER 2022
Appearance: K.G. RAGHAVAN, SR. COUNSEL FOR MANU KULKARNI, ADVOCATE for appellant.
G.B. SHARATH GOWDA, ADV., FOR R1.
VIKRAM A. HUILGOL, SR. COUNSEL A/W AVANI CHOKSHI, ADV, FOR CLIFTON D'ROZARIO, ADV., FOR R2.
T.P. VIVEKANANDA, ADV, FOR R3.
NAMITHA MAHESH B.G. AGA FOR R4.
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tion (Civil) No. 1695 of 1987 Etc.
(Under Article , ' 23 of the Consitution of India).
Govind Mukhotey, J.D. Jain and B.B. Sinha for the Petition ers.
Dr. Y.S. Chitale, Mahabir Singh, K.B. Rohtagi and Sha shank Shekhar for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
The petitioners in these writ petitions are licenced dealers having factories and manufacturing units at Panipat in the State of Haryana and consume sheep hair for manufacturing woollen fabrics and blankets.
In order to carry on their trade they purchase sheep hair to get yarn manufactured out of it for being used in its turn for manu facturing woollen fabrics and blankets.
The only question urged in these writ petitions is as to whether sheep hair was an agricultural produce within the meaning of the said 295 term as defined under Section 2(a) of the Punjab Agricultur al Produce Markets Act, 1961 (hereinafter referred to as the Act) so as to attract the provisions of the said Act to it.
The term "agricultural produce" according to its definition contained under Section 2(a) of the Act means all produce, whether processed or not, of agriculture, horticulture, animal husbandry or forest as specified in the Schedule to the Act.
On its plain meaning, therefore, only such produce as is specified in the Schedule to the Act shall fall within the term "agricultural produce".
Section 38 of the Act confers power on the State Government, by notification, to add to the Schedule any other item of agricultural produce or amend or omit any item of such produce specified therein.
The relevant items in the Schedule on which reliance has been placed by learned counsel for the petitioners in sup port of the contention that sheep hair was not an agricul tural produce are items 41.
Wool (Oon), 75.
Goat hair and 76.
Camel hair.
It has been urged by learned counsel for the petitioners that even though Goat hair and Camel hair have been included in the Schedule, Sheep hair had not been so included and consequently sheep hair was not an agricultural produce within the meaning of the Act and the insistence of the authorities that the petitioners should obtain a licence and pay market fee with regard to their transaction in respect of sheephair was unjustified.
With regard to item No. 4 l namely Wool (Oon), it was urged firstly that wool is the manufactured item of sheep hair and not sheep hair itself and secondly the word 'wool ' according to its dictionary meaning is the soft undercoat of various animals including sheep.
Reference in this behalf has been made to the Dic tionary of Scientific and Technical Terms M.C. Graw Hill.
According to it wool is a textile fibre made from raw wool characterised by absorbency, resiliency and insulation.
It further states that wool is the soft undercoat of various animals such as sheep, angora, goat, camel, alpaca, llamma and vicuna.
Having heard learned counsel for the parties, we are not inclined to agree with the submission made by learned coun sel for the petitioners.
Before dealing with the matter further it would be useful to notice at this place that item No. 41 of the Schedule after the word 'wool ' uses the word '0on ' also within brackets which indicates as to what was really intended by the use of the word 'Wool '.
Indeed, in the Hindi version of the Act, item No. 41 of the Schedule uses the word '0on ' only and does not at all use the word 'wool '.
Now to the submissions made by learned counsel for the petitioners, the first submission made by him that the word 'wool ' contemplated manufactured item of 296 sheep hair and not sheep hair itself, it believed even by the dictionary meaning of the said word relied on by him.
Firstly, the raw material out of which a textile fibre is made is also described as raw wool.
Secondly, not only the textile fibre but also the soft undercoat of various animals including sheep has itself been described as wool.
It is, therefore, apparent that not only the textile fibre made out of raw wool but even the soft undercoat of the various animals including sheep, according to the dictionary afore said, would be wool.
Encyclopaedia Britannica, under the heading wool in vol.
23, states: "Animal fibres are usually spoken of as hair, with the exception of the coat of the sheep which is usually termed wool".
A perusal of what has been stated under the heading wool therein would indicate that wool has almost invariably been used in the context of sheep hair.
In Indian Aluminium Cables Ltd. vs Union of India, [1985] 3 SCC page 284 after referring to several earlier decisions of this Court it was held that in determining the meaning or connotation of words and expressions describing an article in a tariff schedule those words and expressions should be construed in the sense in which they are under stood in the trade by the dealer and the customer when goods are marketable.
The same rule of interpretation was reiter ated in Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co., [1989] 1 SCC page 150.
It was held: "It is well settled, as mentioned before, that where no definition is provided in the statute itself, as in this case for ascertaining the correct meaning of a fiscal entry reference to a dictionary is not always safe.
The correct guide, it appears in such a case, is the context and the trade meaning XXXXX The trade meaning is one which is prevalent in that particular trade where the goods is known or traded.
If special type of goods is subject matter of a fiscal entry then that entry must be understood in the context of that particu lar trade, bearing in mind that particular word xxxxx It is a well settled principle of construc tion, as mentioned before, that where the word has a scientific or technical meaning and also an ordinary meaning according to common par lance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clear ly expressed by the legislature.
This princi 297 ple is well settled by a long line of deci sions of Canadian, American, Australian and Indian cases.
Pollock, J. pointed out in Grenfell vs I.R.C., 248 that if a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed accord ing to the strict or technical meaning of the language contained in it, but is to be con strud in its popular sense, meaning of course, by the words "popular sense" that which people conversant with the subject matter with which the statute is dealing would attribute to it.
The ordinary words in every day use are, therefore, to be construed according to their popular sense.
The same view was reiterated by Story, J. in 200 Chests of Tea (1824) 9 Whea ton US 435,438 where he observed that the legislature does not suppose our merchants to be naturalists, or geologists, or botanists.
" In our opinion, the aforesaid rule of interpretation would apply even to the interpretation of the items of the Schedule to the Act keeping in view the nature and purpose of the enactment.
Interpreting item No. 41 Wool(Oon) of the Schedule in this light there seems to be no mannner of doubt that the word 'wool ' has been used therein only in the sense in which the word '0on ' is understood in the trade by the dealer and the consumer in the popular sense namely that which people conversant with the word '0on ' would attribute to it.
If anyone goes to the market to purchase wool (0on) he would be offered only sheep hair and not goat hair or camel hair or for the matter of that the hair of any other animal.
Indeed, there is intrinsic evidence in the Schedule itself of the fact that in the English version the word 'Wool (0on) ' and in the Hindi version '0on ' only at item No. 41 has been used in the same popular sense namely that of sheep hair.
This intention is apparent from the circum stances that care has been taken to specifically include goat hair and camel hair at items 75 and 76 of the Schedule.
Had Wool (0on) been used at item No. 41 in the comprehensive sense as canvassed by the learned counsel for the petition ers it would have automatically included Goat hair and Camel hair also and the specific inclusion of Goat hair and Camel hair at items 75 and 76 would have been wholly unnec essary.
Consequently, their specific inclusion at items 75 and 76 is a clear indication of the awareness of the fact that the trade meaning of the word 'Wool (0on) ' which is prevalent in the popular sense would be sheep hair alone and as such unless goat hair and camel hair are included as specific items in the Schedule they will not be treated as agricultural produce.
The word 298 'Woo1 (0on) ' has obviously been used at item No. 41 of the Schedule in the aforesaid popular sense and not in the sense used in scientific and technical terminology which the traders and the consumers are not normally supposed to know.
In view of the foregoing discussion, we are clearly of the opinion that sheep hair falls under the item No. 41 of the Schedule namely "Wool (0on)" as contained in the English version and "0on" only as contained in the Hindi version of the Act.
Sheep hair is consequently an agricultural produce within the meaning of the Act so that the various provisions therein with regard to agricultural produce are applicable to sheep hair also.
In the result, we find no merit in these writ petitions.
They are accordingly dismissed but in the circumstances of the case there shall be no order as to costs.
G.N. Petitions dis missed.
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These writ petitions were filed by licencesed dealers who manufacture woollen fabrics and blankets.
They purchase sheep hair and make them yarn for use in manufacturing the above items.
The challenge is against the insistence of the State Govt.
to treat sheep hair as agricultural produce under the Punjab Agricultural Produce Markets Act, 1961 and requiring the petitioners to obtain licence and pay market fee for transactions in sheep hair.
It has been contended by the petitioners that even though goat hair and camel hair are included in the sched ule, sheep hair is not included and hence sheep hair is not agricultural produce within the meaning of the Act.
As regards item No. 41, Wool (0on) appearing in the schedule, it was contended that wool is a manufactured item of sheep hair and not sheep hair itself and the word "wool" according to its dictionary meaning is the soft undercoat of various animals including sheep.
Dismissing the writ petitions, this Court, HELD: 1.1 Item No. 41 of the schedule after the word "wool" uses the word "0on" also within brackets which indi cates as to what was really intended by the us of the word "wool".
Indeed, in the Hindi version of the Act item No. 41 of the schedule uses the word ' '0on" only and does not at all use the word "wool".
The raw material out of which a textile fibre is made is also described as raw wool.
Not only the textile fibre but also the soft under coat of various animals including sheep has itself been described as wool.
Wool has almost invariably been used in the context of sheep hair.
[295G; 296A] 294 1.2 Interpreting item No. 41 Wool (0on) of the schedule in the light of the above, there seems to be no manner of doubt that the word "wool" has been used therein only in the sense in which the word "0on" is understood in the trade by the dealer and the consumer in the popular sense namely that which people conversant with the word '0on ' would attribute to it.
This intention is apparent from the circumstance that care has been taken to specifically include goat hair and camel hair at items 75 and 76 of the schedule.
Had wool (0on) been used at item No. 41 in the comprehensive sense, it would have automatically included goat hair and camel hair and the specific inclusion of Goat hair and Camel hair at item No. 75 and 76 would have been wholly unnecessary.
Thus the word 'Wool (0on) ' has obviously been used in the popular sense and not in the sense used in scientific and technical terminology which the traders and the consumers are not normally supposed to know.
[297D H; 298A] Indian Aluminium Cables Ltd. vs Union of India, ; and Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co., ; , relied on.
Encyclopaedia Britannica Vol. 23, relied on.
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1. Claimant has preferred the appeal against the judgment of dismissal of
claim application filed under section 92(A) of the MV Act (old) and under
Section 142(2) of the M.V. Act of 1988 in Title Claim Suit No.37/92.
2. Claimant the widow of the deceased filed the claim case with regard to
the death of Jalal Mian in a motor vehicle accident involving No. B.E.Y-5051
at village Takipur under Dumka district. It is averred the deceased was 55
years of age and had a monthly income of Rs 2000/- from cattle trade at the
time of the accident. The owner, driver and insurer of the offending vehicle
were impleaded as opposite parties.
3. Both the owner and insurer of the vehicle appeared and contested the
claim inter alia on the ground of non-joinder of necessary parties. It was
pleaded by the owner of the vehicle that it was under the insurance cover of
O.P. No.3 Oriental Insurance Company at the relevant time of accident.
4. On the basis of the pleading of the parties following issues were
i. Is the suit maintainable as frame?
ii. Has applicant got cause of action for the suit?
iii. Is the suit barred by law of limitation, principle of waiver, estoppel and
acquiescence as bad for non-joinder of necessary parties to the suit?
iv. Have all legal heirs not joined as parties as to the suit?
v. Had Jalal Mian S/o Kolha Mian of Village Kolkata, P.S. Raneshwar,
Distt. Dumka died in an accident or use of motor vehicle Truck No.
vi. Is O.P. No.1-Gobind Ram Hetampuria owner of truck no.B.E.Y.5051
which being driven by O.P. No.2 Sital Mahto, who was authorized to
vii. Is O.P. No.3 Oriental Insurance Company Ltd., Dumka authorized
insurer of the vehicle and accordingly entitled to disclose the liability
of the owner of Truck No.B.E.Y.5051?
viii. Is petitioner entitled to get compensation under M.V. Act. It yes, what
should be the adequate amount of compensation will be joint for end of
ix. Is the petitioner is entitle to any other relief or relief?
5. On Issue No. V the Tribunal recorded a finding that Jalal Mian died in
the motor vehicle accident arising out of use of the Truck bearing registration
no. BEY 5051. It was further held that since the licence of the driver of the
truck was not brought on record by either of the side, therefore it was not
proved that the driver was having a valid driving licence. It was also held that
the vehicle was under the insurance cover O.P. No.3. Learned Tribunal
computed a compensation of Rs.1,85,500 with admissible compensation of
Rs.1,60,500 after deducting Rs.25,000 which was the ad-interim payment to
the claimant.
6. The claim application was however dismissed on the ground that as per
heirship certificate Ext 2 the other six daughters and one son of the deceased
were not impleaded in the suit. It held that all the heirs were entitled to
compensation in equal proportion except that the claimant was also entitled to
consortium for the death of her husband.
7. The Judgment of the learned Court below reflects a sad state of affair
where the Tribunal completely misdirected itself and lost sight of the fact that
adjudication in a claim tribunal is in the nature of inquiry and not a trial
where the principles of C.P.C. are not strictly applied. The purpose is to
award just and fair compensation at the earliest to the dependants of the
deceased. Even a civil suit cannot be dismissed for non-joinder, unless the
party is a necessary to the suit. Under Order 1 Rule 9 no suit shall be
defeated by reason of the mis-joinder or non-joinder of parties, and the
Court may in every suit deal with the matter in controversy so far as regards
the rights and interests of the parties actually before it.
Provided that nothing in this rule shall apply to non-joinder of necessary
party.
No suit is to be defeated by reason of mis-joinder or non-joinder of parties.
The prescription extends to appeal as well, and Section 99 provides that no
decree shall be reversed in appeal on account of mis-joinder or non-joinder of
parties or cause of action, unless it is a case of non-joinder of necessary party.
Despite the above position the Court to dismiss suit where a necessary party
has not been joined. Non-joinder of necessary party is fatal when in a suit for
share all the co-sharers are not made parties.
8. Matter for consideration is whether all the heirs are a necessary party in
a claim case. Compensation is assessed on the basis of dependency and not on
heirship. Only those who are the dependents shall be entitled to
compensation. The entire concept of computation of compensation arising out
of the death is based on calculation of the amount on dependency. In Sarla
Verma v. DTC, (2009) 6 SCC 12 it is held that if the deceased is survived by
parents and siblings, only the mother would be considered to be a dependant.
The learned Tribunal thus committed a gross error to dismiss the claim
application merely on the ground that the all the children of the deceased had
not been impleaded. In any case any of the party or parties could have been
impleaded as dependants and ordered accordingly.
9. Delay in awarding compensation frustrates the very object of the Act. It
is thirty years down the line when the accident took place and there cannot be
realistic assessment of dependency at this belated stage. Life does not wait for
Court decrees and orders. Daughters would have been married by now and
found their new home and moorings. Exercise into determining the
dependency at this stage would be an exercise in futility. Under the
circumstance, it will be just and fair to award the compensation in favour of
the appellant/claimant only, who will receive the amount for herself and on
behalf of others.
The claimant shall be entitled to compensation as assessed by the
Tribunal in para 12 and 13 of the judgment with interest at the rate of 7.5%
from the date of filing of the claim application.
10. It has been noted by the Tribunal that none of the parties had brought
on record the driving licence, in this view of matter the owner of the
offending vehicle shall be primarily liable and not the Insurance Company to
the pay compensation amount since no document has been produced by
owner regarding driving licence. It has been held in Pappu v. Vinod Kumar
Lamba, (2018) 3 SCC 208 that the insurance company is entitled to take a
defence that the offending vehicle was driven by an unauthorised person or
the person driving the vehicle did not have a valid driving licence. The onus
would shift on the insurance company only after the owner of the offending
vehicle pleads and proves the basic facts within his knowledge that the driver
of the offending vehicle was authorised by him to drive the vehicle and was
having a valid driving licence at the relevant time.
11. However, since the matter involves breach of terms and condition of the
insurance policy, therefore the Insurance Company shall pay the
compensation amount as assessed by the Tribunal with interest at the rate of
7.5% to the Tribunal within a month of this order. The Insurance Company
shall be at liberty to recover the amount so paid from the owner of the vehicle
The Tribunal shall disburse the amount to the claimant after proper
identification of the claimant on the basis of relevant documents filed in
support of her identity after due verification.
The appeal is allowed as at above. Consequently, I.A. No. 396 of 2014
stands disposed of.
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The Jharkhand High Court recently held that a Motor Accident Tribunal cannot deny compensation to the wife of the deceased, merely for non-joinder of his remaining heirs, i.e. sons and daughters.Justice Gautam Kumar Choudhary observed,"Compensation is assessed on the basis of dependency and not on heirship. Only those who are the dependents shall be entitled to compensation. The...
The Jharkhand High Court recently held that a Motor Accident Tribunal cannot deny compensation to the wife of the deceased, merely for non-joinder of his remaining heirs, i.e. sons and daughters.
Justice Gautam Kumar Choudhary observed,
"Compensation is assessed on the basis of dependency and not on heirship. Only those who are the dependents shall be entitled to compensation. The entire concept of computation of compensation arising out of the death is based on calculation of the amount on dependency."
It stated that all the heirs are not a necessary party in a claim case and no suit is to be defeated because of misjoinder or non-joinder of parties. In this regard it noted that Section 99 provides that no decree shall be reversed in appeal on account of misjoinder or non-joinder of parties or cause of action unless it is a case of non-joinder of necessary party.
In this backdrop, it remarked,
"Despite the above position the Court to dismiss suit where a necessary party has not been joined. Non-joinder of the necessary party is fatal when in a suit for share all the co-sharers are not made parties."
The claimant has preferred an appeal against the judgment dismissing the claim application filed under Section 92(A) of the old Motor Vehicle Act and Section 142 (2) of the Motor Vehicle Act, 1988. The claimant is a widow of the deceased, 55 years of age, with a monthly salary of Rs. 2,000/- from the cattle trade at the time of the accident.
The owner and insurer of the vehicle resisted the claim on the ground of the non-joinder of the necessary party.
Based on the pleadings, the Court framed nine issues concerning the owner, insurer, and the cause of action of the suit. The Tribunal had settled the question of fact of the accident, noting that the accident arose out of the truck in question leading to the death. It was further noted that since the driver's license is not on record, it could not be proved if the driver had a valid driving license. It also computed a compensation to be paid by the insurer.
However, the Tribunal dismissed the claim application because the other six daughters and one son of the deceased were not impleaded in the suit. It was held that all the heirs were entitled to compensation in an equal proposition, other than the claimant, who was also entitled to a consortium for the death of her husband.
The High Court said that the impugned judgment reflects a "sad state of affairs" where the Tribunal completely misdirected itself and lost sight that adjudication in a claim tribunal is like an inquiry and not a trial where the principles of CPC are not strictly applied. It held,
"The purpose is to award just and fair compensation at the earliest to the dependants of the 3 deceased. Even a civil suit cannot be dismissed for non-joinder, unless the party is a necessary to the suit. Under Order 1 Rule 9 no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it."
The High Court noted that the matter for consideration is whether all their heirs are a necessary party in the claim sense. It referred to the case of Sarla Verma v. DTC, where it was held that if parents and siblings survive the deceased, only the mother would be considered a dependant.
The High Court noted that the Tribunal had committed a gross error to dismiss the claim application merely because all the children of the deceased had not been impleaded. Any of the parties or parties could have been impleaded as dependants and ordered accordingly.
It remarked that a delay in awarding compensation frustrates the very object of the Act. It noted,
"It is thirty years down the line when the accident took place and there cannot be realistic assessment of dependency at this belated stage. Life does not wait for Court decrees and orders. Daughters would have been married by now and found their new home and moorings."
Therefore, it is noted that an exercise in determining the dependency at this stage would be an exercise in futility, so it will be just and fair to award the compensation in favor of the appellant/claimant only, who will receive the amount for herself and on behalf of others.
In the absence of the driver's driving license, the Court noted that the owner of the offending vehicle should be primarily liable and not the Insurance company. It referred to the case of Pappu v. Vinod Kumar Lamba, where it was held that the insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorized person or the person driving the vehicle did not have a valid driving license. In such a situation, the onus would shift on the insurance company only after the offending vehicle owner pleads and proves the basic fact of the driver being an authorized person to drive the vehicle.
Case Title: Ugni Bibi v. Gobind Ram Hathampuria
Read The Order
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The instant appeal has been filed by the Insurance
Company (defendant in the claim petition) against the judgment
and decree dated 23.10.2021 passed by the Additional District
Judge No.4, Bikaner in Civil Original Suit No. 07/2020, whereby
while allowing the suit filed by the dependents of the deceased
Premaram @ Premratan under the Fatal Accident Act,
compensation of Rs.5,94,160/- has been awarded for which
employer, Pratibha Industries Limited Nagaur, its Supervisor,
Managing Director and Insurance Company were made liable
jointly and severely.
Deceased Premaram @ Premratan was an employee in
Pratibha Industries Ltd. He died on 18.6.2008, during the course
of his employment, while he was doing work of removing soil from
the pipeline in the ditch. The masala mixture machine fell upon
him as a result of which he collapsed. At the time of his death, he
was aged 25 years and earning Rs.250/- per day in lieu of labour
work. At that time, defendant nos. 1 and 2 were Supervisor and
Managing Director of the Pratibha Industries Ltd. The incident was
reported to the police, upon which FIR No. 231/2008 under
Section 302 and 287 IPC was registered. All the employees
working under Pratibha Industries Ltd. were insured under the
Wokmen’s Compensation Act, 1923 (now amended as The
Employees’s Compensation Act, 1923 w.e.f. 18.1.2010) (herein-
afterwards referred to as ‘the Act of 1923’).
After trial, the learned trial court decreed the suit.
Aggrieved with the same, this first appeal has been filed.
Learned counsel for the appellants during arguments on
admission submits that the insurance company issued policy in the
category of workmen compensation for 30 employees drawing
salary less than Rs.4,000/-. Since deceased was employee of
Pratibha Industries Ltd., the dependents of deceased had remedy
to file claim petition under the Employee’s Compensation Act,
1923. Insurance Company is liable only under the provisions of
the Act of 1923. He also submits that wife of the deceased has re-
married, so she is not entitled to get the compensation. He further
submits that the Insurance Company was impleaded as party
respondent only on 30.11.2010 at a belated stage.
Learned counsel for the appellants also submits that
the income of the deceased was more than Rs.4,000/- per month,
whereas, the insurance was with regard to workers drawing salary
less than Rs.4,000/- per month each. At the time of incident, no
security measures were provided to the employees by the
employer. Therefore, the conditions of the policy have also been
violated. Learned counsel for the appellants further submits that
the deceased was working for sub-contractor.
Considered the arguments raised by the learned
counsel for the appellants and perused the record.
It is not in dispute that the deceased was an employee
of Pratibha Industries Ltd. It is also not in dispute that Workmen
Compensation Policy issued in favour of Pratibha Industries Ltd. by
the appellant – Insurance Company was in force at the time of
incident. It is not in dispute that the compensation was assessed
on the monthly income of Rs. 2600/- of the deceased, which is
below Rs.4,000/- per month. Regarding not filing claim under the
Act of 1923, it is made clear that though claimants had remedy
under the Act of 1923 also, however, there is no bar to file suit for
compensation under the provisions of Fatal Accident Act, 1855.
The provisions of Fatal Accident Act, 1855 applies against all
wrong doers including the employer. The scope of the provisions of
Fatal Accident Act, 1855 is wider than the scope of Act of 1923.
Civil Courts are competent to entertain any civil dispute unless it
is barred by any law. There is no bar under any provisions of law
to claim compensation under the Fatal Accident Act by employee
against his employer. Hence, the contention of the learned counsel
for the appellant in this regard is prima facie not tenable.
The other grounds raised by the learned counsel for the
appellants are also not tenable. Contention with regard to re-
marrying of the deceased’s wife is concerned, the same does not
disentitle her from claiming compensation for death of her
husband. The amount of compensation awarded by the learned
trial court looking to the young age of the deceased and number
of claimants cannot be said to be unreasonable. There is no merit
in this appeal.
Accordingly, this first appeal stands dismissed at
admission stage.
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The Rajasthan High Court has observed that remarrying of the deceased's wife does not disentitle her from claiming compensation for death of her husband under Employees' Compensation Act, 1923. The court added that the amount of compensation awarded by the trial court looking at the young age of the deceased and number of claimants cannot be said to be unreasonable.
Justice Rameshwar Vyas, while dismissing the first appeal preferred by the Insurance Company observed,
"Contention with regard to remarrying of the deceased's wife is concerned, the same does not disentitle her from claiming compensation for death of her husband. The amount of compensation awarded by the learned trial court looking to the young age of the deceased and number of claimants cannot be said to be unreasonable. There is no merit in this appeal."
While dealing with the appellants' contention regarding not filing the claim under the Act of 1923, the court clarified that though claimants also had remedy under the Act of 1923 and there is no bar to file suit for compensation under the provisions of Fatal Accident Act, 1855. The court opined that the provisions of Fatal Accident Act, 1855 applies against all wrong doers including the employer.
The court observed that the scope of the provisions of Fatal Accident Act, 1855 is wider than the scope of Act of 1923. The court added that Civil Courts are competent to entertain any civil dispute unless it is barred by any law. There is no bar under any provisions of law to claim compensation under the Fatal Accident Act by an employee against his employer, added the court.
The court noted that it is not in dispute that the deceased was an employee of Pratibha Industries Ltd. and that the Workmen Compensation Policy issued in favour of Pratibha Industries Ltd. by the appellant – Insurance Company was in force at the time of incident. It is not in dispute that the compensation was assessed on the monthly income of Rs. 2600/- of the deceased, which is below Rs.4,000/- per month, added the court.
Facts
Essentially, the deceased Premaram @ Premratan was an employee in Pratibha Industries Ltd. He died on 18.6.2008, during the course of his employment, while he was doing work of removing soil from the pipeline in the ditch. The masala mixture machine fell upon him as a result of which he collapsed. At the time of his death, he was aged 25 years and earning Rs.250/- per day in lieu of labour work. At that time, defendant nos. 1 and 2 were Supervisor and Managing Director of the Pratibha Industries Ltd. The incident was reported to the police, upon which FIR under Section 302 and 287 IPC was registered. All the employees working under Pratibha Industries Ltd. were insured under the Wokmen's Compensation Act, 1923.. After trial, the learned trial court decreed the suit. Aggrieved with the same, this first appeal has been filed.
Arguments
The appellants' counsel submitted that the insurance company issued a policy in the category of workmen compensation for 30 employees drawing a salary less than Rs.4,000/-. He argued that since the deceased was an employee of Pratibha Industries Ltd, the dependents of the deceased had the remedy to file a claim petition under the Act of 1923. He also argued that Insurance Company is liable only under the provisions of the Act of 1923.
He submitted that the wife of the deceased has remarried and is not entitled to get the compensation. He further submitted that the Insurance Company was impleaded as party respondent at a belated stage. He argued that the income of the deceased was more than Rs.4,000/- per month, whereas, the insurance was with regard to workers drawing a salary less than Rs.4,000/- per month each. He added that at the time of the incident, no security measures were provided to the employees by the employer. Therefore, he contended that the conditions of the policy have also been violated.
Adv. Dhanpat Choudhary appeared for the appellants.
Case Title: Bajaj Allianz General Insurance Company Limited & Anr. .v. Sharda
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2. The present case is having history of repeated litigation by
land owners to get compensation of the land owned by them. The
land owners’ land admeasuring area of Ac 3.23 guntas in
Survey No. 268 of Attapur Village, Rajendranagar Mandal, Ranga
Reddy District was sought to be acquired for the purpose of
extension of the Nehru Zoological Park. The Notification under
Section 4(1) of the Land Acquisition Act, 1894 (for short “L.A.
Act”) and final Notification under Section 6 were issued on
19.03.1981 and 09.04.1981 respectively. Despite taking
possession, award was not passed and no amount of
compensation was paid. The land owners had filed Writ Petition
No. 17119 of 1996 before the Andhra Pradesh High Court, which
was disposed vide order dated 22.04.1997 directing the
respondents (Revenue Department) to pass an award within a
period of three months from the date of receipt of the order. Only
thereafter award was passed in case No. 1/1844/89 on
07.06.1997 and a meagre compensation @ Rs. 6 per sq. yard was
awarded to the land owners.
3. The land owners submitted representation asking reference
under Section 18 of L.A Act, which was not responded, forcing
them to approach again the High Court. The land owners filed
Writ Petition No. 5676 of 2003 which was disposed of on
18.04.2003 directing the Land Acquisition Officer to take action
to make reference within six weeks. Even after direction by the
High Court, reference was not made, however the land owners
filed Contempt Case No. 1668 of 2004. After issuing notice in
contempt, reference was made by the Land Acquisition Officer
to the Ist Additional Senior Civil Judge, Ranga Reddy District
which was registered as O.P. No. 205 of 2005. The Reference
Court made the award on 03.09.2012 directing respondents to
pay compensation to the land owners @ Rs. 250 per sq. yard with
solatium and interest.
4. The enhancement, as directed by the Reference Court, was
questioned by the Revenue Department by filing appeals before
the High Court bearing LAAS Nos. 303 of 2013 and 330 of 2015.
The land owners had also filed an appeal bearing LAAS No. 353
of 2015 questioning the adequacy of compensation. The High
Court, during the course of hearing, by consent of the parties,
referred the appeals for Mediation vide order dated 01.02.2016.
The relevant extract of the order is reproduced as under:
“In the given circumstances, we are satisfied that if a
trained mediator works out, exhibiting the necessary
patience, it is more likely that the controversy can be
sorted out effectively and to the satisfaction of both
sides. In these given facts and circumstances, we
consider it appropriate to direct the Registry to refer
these appeals for Mediation and Conciliation Centre
attached to the High Court with a request to the
Deputy Director in charge thereof to refer the dispute
in these appeals to one of the trained mediators, if
possible, who has handled similar assignments
relating to the land acquisition matters in the past ”
During the mediation proceedings, the parties have entered
into Joint Memorandum of Compromise on 28.04.2016, in which
the Revenue Department agreed to pay compensation @ Rs.
350/ per sq. yard. Accordingly, the Mediator submitted its
report on 05.05.2016, inter alia stating that the proposal made
by the land owners of Rs. 500/ per sq. yard had not been
accepted on behalf of the Government, but agreed to fix Rs.
350 per sq. yard towards the compensation and determined
the total sum as Rs. 3,48,46,578/. The report of the Mediator
is also relevant, therefore reproduced as thus:
“As per the claim of the parties quoted @ Rs. 500 /
per Sq. Yard for total extent of 8,651.5 Sq. Yards
including 30% Solatium on market value under Section
23(2) and 12% p.a. Addl. Market Value u/s 23(1) from
the date of Notification 03.03.1981 to 07.06.1997 as
per Award.
The claim from the above after calculation of interest
the parties after deduction of the payment made in EP
No. 11 of 2013 deposited by the LAO the claim is Rs.
After making hectic efforts between the parties and
the matter is finalized on 28.04.2016 before me at
Mediation Centre proposed to fix the land value @ Rs.
350/ per Sq. Yard as per the proposal made by the
officers to deduct the 20% of the land value, the
amount comes to Rs. 3,48,46,578/ and the parties
convinced as full and final settlement subject
withdrawal of the cases pending before the Courts”
5. After submission of Mediation Report, Deputy Collector,
Government of Telangana addressed a letter bearing No.
1/4279/1997 dated 7.5.2016 to the Curator, Nehru Zoological
Park, Bahadurpura, Hyderabad with a request to pursue the
matter with the Government to sanction the fund at the earliest
to avoid any other future problem. The relevant extract of said
letter is reproduced as thus:
“During the course of discussions regarding
settlement of land value, the party in person
requested to fix the market value@ Rs. 500/ per Sq.
Yard. But after long discussions the Mediator has
proposed the land value @ Rs. 350 / per Sq. Yard.
Via Media and placed before this authority. Finally
by considering the prevailing market value of the
land agreed the proposal of Mediator and fixed the
land value @ Rs. 350/ per Sq. Yard. Accordingly a
Joint Memorandum of Compromise has been filed
before the Mediation Centre on 30.04.2016.
In compliance to the above the Mediator High Court
of, Judicature at Hyderabad has addressed a letter
dated. 05.05.2016 to this authority directing to make
arrangement to issue cheque in the name of the
parties in the LAAS No.353/2015 by name Mr. Ismail
Bhai S/o. (Late) Hassan Ali before the Mediator
centre on or before 20.05.2016 to settle the issue and
submit before the High Court.
In view of the above, kindly make it pursue the
matter with Government and to provide the fund at
the earliest to avoid any other future problems.”
6. On the basis of the mediation report, relying upon the Joint
Memorandum of Compromise executed by the parties, the
appeals filed by the Revenue Department as well as the land
owners were disposed of vide order dated 10.06.2016. The order
passed by the High Court is reproduced as thus:
“1. The dispute between the parties in the above
appeals was referred to the Mediation and
Arbitration Centre, by an order of this court dated
Arbitration Centre attached to this Court, it
appears that the Mediation was successful. The
parties have entered into a Joint Memorandum of
Compromise before the Mediation and the copy of
the Joint Memorandum of Compromise entered
into on 28.04.2016 is filed before us.
3. Therefore, both the appeals are disposed of in
terms of the Joint Memorandum of Compromise
entered into by the parties before the Mediation
and Arbitration Centre. There shall be no order
as to costs. Pending miscellaneous applications,
if any, in these appeals, shall stand closed.”
7. Even on communication of the said order, which was
passed in presence of both the parties, it was not complied with
by making the payment of compensation. Therefore, a Writ
Petition bearing No. 34175 of 2016 was filed by the land owners
before the High Court seeking direction to the authorities to
make payment of agreed compensation of Rs. 3,48,46,578/ as
calculated in Joint Memorandum of Compromise. After service of
the notice of the said Writ Petition, the Revenue Department
instead of complying the order of the High Court, filed petitions
seeking recall of the order dated 10.06.2016 taking exception
that the Revenue Divisional Officer, who signed the Joint
Memorandum of Compromise, had not taken permission from
the superior officers. The High Court allowed the Recall Petitions
bearing LAASMP No. 59 of 2017 in L.A.A.S. No. 303 of 2013 and
LAASMP No. 60 of 2017 in L.A.A.S. No. 353 of 2015 and restored
LAAS Nos. 303/2013 and 353/2015.
8. After restoration, the appeal filed by the Revenue
Department was allowed by High Court vide order dated
24.11.2017 reducing the compensation @ Rs. 100 /per sq. yard
in place of Rs. 250/ per sq. yard as determined by the Reference
Court. Consequently, the appeal filed by the land owners was
9. Relying on the order dated 24.11.2017 passed in LAAS Nos.
303 of 2013 and 353 of 2015, the High Court vide order dated
19.12.2017 also disposed of LAAS No. 163 of 2016 filed by
Fakhruddin Ali (appellant herein), whose land was also acquired
in the same impugned Notification.
10. Challenging the impugned order of the High Court, the
present appeals have been filed by the land owners, questioning
the adequacy and grant of compensation with interest. The
Revenue Department has also filed an appeal assailing the
impugned order on the ground that the deductions for
development charge and the area of land used for development
have not been made by the High Court.
11. Learned senior counsel for the land owners submits that a
prayer was made before the Reference Court to compute the
compensation @ Rs. 1000/ per sq. yard with solatium @ 30%
on the market value as provided under Section 23(2), 12% p.a.
additional market value under Section 23(1)A of L.A. Act from
the date of notification under Section 4 till the date of award
along with statutory interest. The Reference Court after
considering the submissions so made and relying upon the copy
of the sale deed (Exb. A1) i.e. document No. 1208/81, the
judgments and decrees of the High Court in two appeals bearing
CCCA Nos. 6 of 1987 and 110 of 1987 arising out of the different
Original Petitions relating to the land of another village
Bahadurpur filed as Exb. A2 and A3, topo sketch Ex. A4,
maps of village Attapur and Mir Sagar as Exbs. A5 and A6 and
D.O. letter dated 28.8.2019 sent by the Revenue Divisional
Officer Exb. A7 and also the statement of the claimant PW1 and
the retired Government Surveyor PW2 and also considering the
statement of the Land Acquisition Officer RW1 and Deputy
CollectorcumRDO examined as RW2, determined the
compensation @ Rs. 250 per sq. yard enhancing the same from
Rs. 6 per sq. yard. It was also held that the land owners would
be entitled for solatium @ 30% on the market value, additional
market value along with interest @ 12% p.a. and the interest as
specified under Section 23(2) of L.A. Act. Before the High Court,
the adequacy of the said amount was questioned looking to the
surroundings of the land acquired and the market value on the
date of acquisition. It was urged during mediation, and as agreed
by the Revenue, compensation @ Rs. 350/ per sq. yard was
decided by Joint Memorandum of Compromise which was
accepted by the High Court. Later, the Revenue Department
filed recall petitions only on the ground that for the Joint
Memorandum of Compromise, permission from superior officers
have not been taken. The Revenue Department has not
questioned the rate as agreed by the Revenue Divisional Officer,
but the High Court allowed the Recall Petitions and restored the
appeals and by the impugned order, reduced the compensation
to Rs. 100/ per sq. yard without any basis, applying the reverse
12. On the other hand, in the appeal filed by Revenue
Department, it is urged that out of compensation so awarded,
development charges have not been deducted and the area
required for development has not been reduced while computing
the compensation at the rate so determined by the High Court
and prayed that the appeal filed by the Department may be
allowed dismissing the appeal filed by the land owners.
13. After having heard learned senior counsel for the parties
and on perusal of the material brought on record, it is apparent
that the acquisition of land was made in the year 1981.
Indisputably, the land acquired is situated in a highly developed
area of the twin cities having amenities of water, electricity,
drainage, telephone, transport etc. The only sale deed filed by
the claimants Exb. A1 dated 21.09.1981 of village Bahadurpur
which is of adjacent village because no sale deed of village
Attapur in the said year was executed. As per topo sketch Exb.
A4, the distance between the two villages Bahadurpur and
Attapur is 1320 meters. The value of the said land as per said
sale deed was Rs. 200/ per sq. yard. Exbs. A2 and A3 are the
decrees passed in two cases in which the compensation has
been fixed @ Rs. 250/ per sq. yard of the land acquired at the
same time. The said documents find support from the
testimony of PW1 and PW 2. The departmental witness RW2
in his statement admitted that in Katedan Village, an industrial
estate is situated at the distance of 3 ½ k.m. from Attapur
Village. The Agricultural University, National Police Academy is
also nearby. The High Court of Andhra Pradesh is also
situated within a distance of 3 K.M. from the land acquired.
The said land is required for laying the filter beds for Nehru
Zoological Park. The evidence as produced by the land owners
has not been rebutted by filing any document. On the contrary,
the departmental witness has admitted before the Reference
Court that the acquired land of the village is a prominent area
within the vicinity of the city of Hyderabad. In absence of having
any material on record, in our view, the Reference Court rightly
relied on Exb. A1 sale deed of adjacent Village Bahadurpur.
The acquired land may have been situated in Village Attapur
but it is adjacent to Village Bahadurpur, where the land value
was fixed as Rs. 200 per sq. yard. While granting the
compensation of the adjacent piece of land, the Court decided
value @ Rs. 250/ per sq. yard as mentioned in decrees Exbs. A
2 & A3. The D.O. letter of Revenue Development Officer dated
28.8.1991 acknowledges minimum value @ Rs. 200 per sq. yard
on the date of acquisition. It is also relevant to observe that
after sending the matter for mediation, Joint Memorandum of
Compromise was entered into by the Revenue Divisional Officer,
wherein the Mediator fixed the rate @ Rs. 350/ per sq. yard in
place of Rs. 500/ per sq. yard as agreed by the Revenue
Department. In Recall Petitions, the said joint memorandum of
compromise was challenged only on the ground that such
compromise was signed without permission of the superior
officer without challenging that the value of land as offered is on
higher side. Therefore, in our view, the High Court committed
an error in computing the compensation @ Rs. 100 per sq. yard
ignoring the unrebutted documents produced by the land
owners and without any cogent material on record, by applying
reverse calculation. In our view, as per the testimony of the
departmental witness RW2, it is clear that the land acquired is
near to the Agricultural University, National Police Academy and
High Court of A.P., which is now in the heart of the city of
Hyderabad. Considering the aforesaid and, taking note of the
date of acquisition i.e. 1981 which is about 40 years ago, the
value of the said land cannot be computed at the rate less than
Rs. 250/ per sq. yard which is supported by the evidence
brought on record by the land owners.
14. We now revert to the issue raised in the appeal filed by the
Revenue Department on the point of deduction of development
charge and the area of the land used for development. Recently
in the case of Reddy Veerana vs. State of Uttar Pradesh and
Others 2022 SCC Online 562, the deduction of the development
charge was denied. The facts of the present case is not
uncommon to the said case. As discussed above, it is apparent
that the land in the present case was acquired 40 years back in
the year 1981 and the compensation was decided by LAO after
litigating in courts only @ Rs. 6 per sq. yard. The land acquired
is now in the heart of city of Hyderabad where the cost of the
land has been increased more than 100 times. The development
of the city has already taken place. The land owners, whose
land has been utilized 40 years back, now cannot be compelled
to pay the development charge for the development which has
already taken place, only for a parcel of land to which they have
not given compensation up to decades. Therefore, the plea taken
by the Revenue Department sans merit.
15. In view of the foregoing, the appeals filed by the land
owners are allowed and the appeals filed by the Revenue
Department are dismissed. The impugned judgment passed by
the High Court stands setaside, restoring the order of the
Reference Court. The amount of compensation, as determined
by the Reference Court, be calculated and be paid now within a
period of two months from the date of this judgment. In the
facts of the case, the parties to bear their own costs.
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In a relief to the land owners who are yet to get compensation for their lands acquired 40 years ago, the Supreme Court directed the authorities to pay compensation within two months.
In this case, the land was acquired for the purpose of extension of the Nehru Zoological Park in 1981. Despite taking possession, award was not passed and no amount of compensation was paid which made the land owners approach the High Court of Andhra Pradesh in 1996. The High Court directed the authority to pass an award within a period of three months. Following this, an award was passed in 1997 and a meagre compensation @ Rs. 6 per sq. yard was awarded to the land owners. Later, the Reference Court enhanced the compensation to Rs. 250 per sq. yard with solatium and interest. Thereafter, in the year 2017, appeal filed by the Revenue Department was allowed by High Court reducing the compensation to Rs. 100 /- per sq. yard.
In appeal filed by the land owners, the Apex Court bench of Justices S. Abdul Nazeer and JK Maheshwari noted that the land acquired is near to the Agricultural University, National Police Academy and High Court of Andhra Pradesh. Disagreing with the High Court approach, the bench said:
"Taking note of the date of acquisition i.e. 1981 which is about 40 years ago, the value of the said land cannot be computed at the rate less than Rs. 250/ per sq. yard which is supported by the evidence brought on record by the land owners."
The bench added that the High Court committed an error in computing the compensation @ Rs. 100 per sq. yard ignoring the unrebutted documents produced by the land owners and without any cogent material on record, by applying reverse calculation. "The evidence as produced by the land owners has not been rebutted by filing any document. On the contrary, the departmental witness has admitted before the Reference Court that the acquired land of the village is a prominent area within the vicinity of the city of Hyderabad.", the bench noted.
Regarding the contention raised by the Revenue Department on the point of deduction of development charge and the area of the land used for development, the court observed:
"The land acquired is now in the heart of city of Hyderabad where the cost of the land has been increased more than 100 times. The development of the city has already taken place. The land owners, whose land has been utilized 40 years back, now cannot be compelled to pay the development charge for the development which has already taken place, only for a parcel of land to which they have not given compensation up to decades. Therefore, the plea taken by the Revenue Department sans merit"
Case details
Revenue Divisional Officer vs Ismail Bhai | (SC) 984 | CA 8727-28 OF 2022 | 22 Nov 2022 | Justices S. Abdul Nazeer and JK Maheshwari
For the parties: M/S. Venkat Palwai Law Associates, AOR Mr. Yelamanchili Shiva Santosh Kumar, Adv. Mr. Rudrajit Ghosh, Adv. Mr. Tarun Gupta, AOR Mr. Abhishek Sharma, Adv. Mr. Venkateswara Rao Anumolu, AOR
Headnotes
Land Acquisition Act, 1894 - Land acquired in 1981 but compensation not yet paid - Authorities directed payment of compensation within two months - The value of the said land cannot be computed at the rate less than Rs. 250/ per sq. yard which is supported by the evidence brought on record by the land owners.
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1. This writ petition is filed by the petitioners seeking the following
“(a) Issue a Writ, Order or Direction in the nature of Certiorari
or any other Writ, Order or Direction of like nature quashing
and setting aside the letters dated 18.08.2018 and 28.03.2019
both issued by Respondent No.1 to Petitioner No.1 directing the
Petitioners that the Claim period in the Bank Guarantee must be
(b) Issue a Writ, Order or Direction in the nature of Certiorari or
any other Writ, Order or Direction of like nature quashing and
setting aside the letter dated 10.02.2017 bearing reference No.
Legal/Cir2102/BG Opinion and letter dated 05.12.2018 issued
by Respondent No.2 to all Member Banks in relation to the
minimum period for lodging a claim with the Bank under the
(c) Issue a Writ, Order or Direction in the nature of Mandamus
or any other Writ, Order or Direction of like nature directing the
Respondents to discard any interpretation of Section 28(b) read
with Exception 3of the ICA which prescribes a minimum period
of 12 months of validity, for making a demand by a Creditor of
a Contract of Guarantee under Section 126 of the ICA issued
upon a Bank or a Financial Institution as a "surety", where such
Bank Guarantee has been issued at the instance of the Petitioner
No.1 as a Principal Debtor or issued for the benefit of the
2. Essentially the dispute in the present petition centers around
interpretation of section 28 of the Indian Contract Act, 1872 (hereinafter
referred to as the ‘Contract Act’). The grievance of the petitioner is that
based on an erroneous interpretation of section 28 of the Contract Act,
respondent bank forces a mandatory and an unalterable claim period of a
minimum 12 months for the bank guarantee. It is stated that the claim
period is a time period contractually agreed upon between the creditor and
principal debtor, which provides a grace period beyond the validity period
of the guarantee to make a demand on the bank for a default, which
occurred during the validity period. This claim period may or may not
even exist in a bank guarantee.
3. Section 28 of the Indian Contract Act, 1972 reads as follows:
“28 Agreements in restraint of legal proceedings, void.-
(a) by which any party thereto is restricted absolutely from
enforcing his rights under or in respect of any contract, by the
usual legal proceedings in the ordinary tribunals, or which
limits the time within which he may thus enforce his rights, or
(b) which extinguishes the rights of any party thereto, or
discharges any party thereto from any liability, under or
in respect of any contract on the expiry of a specified period so
as to restrict any party from enforcing his rights,
is void to that extent.
Exception 1.—Saving of contract to refer to arbitration dispute
that may arise.
This section shall not render illegal a contract, by which two or
more persons agree that any dispute which may arise between
them in respect of any subject or class of subjects shall be
referred to arbitration, and that only the amount awarded
in such arbitration shall be recoverable in respect of the dispute
so referred.
Exception 2.—Saving of contract to refer questions that have
already arisen.
Nor shall this section render illegal any contract in writing, by
which two or more persons agree to refer to arbitration any
question between them which has already arisen, or affect any
provision of any law in force for the time being as to references
to arbitration.
Exception 3.—Saving of a guarantee agreement of a bank or a
financial institution.
This section shall not render illegal a contract writing by which
any bank or financial institution stipulate a term in a guarantee
or any agreement making a provision for guarantee for
extinguishment of the rights or discharge of any party thereto
from any liability under or in respect of such guarantee or
agreement on the expiry of a specified period which is not less
than one year from the date of occurring or non-occurring of a
specified event for extinguishment or discharge of such party
from the said liability.
(i) In Exception 3, the expression “bank” means—
(a) a “banking company” as defined in clause (c) of Section 5
of the Banking Regulation Act, 1949 (10 of 1949);
(b) “a corresponding new bank” as defined in clause (da) of
Section 5 of the Banking Regulation Act, 1949 (10 of 1949);
(c) “State Bank of India” constituted under Section 3 of the
(d) “a subsidiary bank” as defined in clause (k) of Section 2
of the State Bank of India (Subsidiary Banks) Act, 1959 (38
(e) “a Regional Rural Bank” established under Section 3 of
the Regional Rural Bank Act, 1976 (21 of 1976);
(f) “a Co-operative Bank” as defined in clause (cci) of
Section 5 of the Banking Regulation Act, 1949 (10 of 1949);
(g) “a multi-State co-operative bank” as defined in clause
(cciiia) of Section 5 of the Banking Regulation Act, 1949 (10
(ii) In Exception 3, the expression “a financial institution”
means any public financial institution within the meaning of
Section 4-A of the Companies Act, 1956 (1 of 1956).”
4. A perusal of the impugned communication issued by respondent
No.1/PNB dated 18.08.2018 addressed to the petitioners shows that as per
respondent PNB a claim period in a bank guarantee which is less than 12
months would render the claim period void and will effectively increase
the claim period under the bank guarantee to 3 years under the Limitation
Act, 1963. The above plea is reiterated by respondent No.1 in its
communication to the petitioners dated 28.03.2019.
Respondent No.2 in its communication/circular addressed to the
banks dated 10.02.2017 states that it would be open for the banks to
stipulate as a condition precedent that if the claim is not lodged before a
stipulated time, the bank guarantee shall be revoked or terminated but the
stipulated date cannot be less than one year in any event. The
communication dated 05.12.2018 of respondent No.2 which is addressed
to all the banks also reiterates the above contentions stating that if a bank
issues a claim period of less than one year on top of the guarantee period
then such a bank guarantee would not have benefit of Exception 3 to
section 28 of the Act. Such banks issuing a bank guarantee would stand
exposed to the period of limitation under the Limitation Act, 1963 which
would be 30 years in a case when the Government is the guarantee
beneficiary and 3 years when some other party is the guarantee
5. The case of petitioner No.1 is that it is one of the largest
construction companies of India. Respondent No.1/PNB is a state-owned
Indian multinational banking and financial services company. Respondent
No.2 is Indian Banks’ Association which is an association of Indian Banks
and Financial Institutions created to provide a variety of services to the
member banks. Respondent No. 3 is RBI. It is pleaded that petitioner No.1
has a number of contracts with Government bodies and Public Sector
Undertakings. The petitioner has to normally issue ‘Performance Bank
Guarantee’ or ‘Advance Bank Guarantee’ in the course of performance of
the contract. In addition, petitioner No.1 has also to furnish Bid Bonds/Bid
Security in the form of bank guarantee.
6. It is further stated that the Standard Bank Guarantee would usually
a) Expiry Period/Validity Period: A bank guarantee would prescribe a
specific date by which a bank guarantee would expire. This is a time
determined by the Principal Debtor and the Creditor. The right to invoke
the bank guarantee is only for a default of the Principal Debtor which
occurs during the validity period of the bank guarantee.
b) Claim Period: This is a time period contractually agreed between
the Creditor and the Principal Debtor which provides a grace period
beyond the validity period to make a demand on the bank for a default
which has occurred during the validity period. A claim period may or may
not exist in the bank guarantee. The guarantor again has no role to play.
c) Enforcement Period: The Enforcement period is a time period
within which the Creditor can enforce his accrued rights pursuant to a
demand made by him within the validity period or the claim period before
a competent court of law. This period, it is stated, is statutorily governed
by section 28(b) read with Exception 3 to section 28 of the Contract Act.
In the absence of any such clause in the guarantee, the said period would
be determined by the Limitation Act, 1963.
7. It is pleaded that on a complete misinterpretation of section 28 of
the Contract Act, respondent No.1 bank insists that the claim period
should be 12 months. Adverse fallout for the petitioner of such
interpretation is that the petitioner is unnecessarily made liable to pay
commission charges for such extended bank guarantee when as per the
contract between the principal debtor and the creditor, the claim period
would be much shorter. In addition, the petitioners also become liable to
maintain collateral security for supporting such extended claim period.
The extended claim period effects the petitioners’ capability to do business
by entering into new contracts and effects the fundamental rights of the
petitioners under Article 19(1)(g) of the Constitution of India.
8. The petitioner has pleaded the entire historical background of the
present section 28 of the Contract Act to support its contentions that the
impugned communications issued by respondents No.1 and 2, respectively
are grossly illegal and misinterpret section 28 of the Contract Act and
cause grave prejudice and damage to the petitioners.
9. To support its plea about wrong interpretation of Section 28 of the
Contract Act by the respondents, reliance is placed on the Ninety-Seventh
report of the Law Commission of India dated 31.03.1984, the statement of
objects and reasons for the amendment to section 28 of the Contract Act
carried out on 08.01.1997 and the amendment to the Contract Act on
18.01.2013 which added exception 3 to section 28 of the Act. Reliance is
also sought to be placed on the opinion of Justice B.N.Srikrishna (Former
Judge of the Supreme Court of India). Reliance is also placed on the
judgment of a Co-ordinate Bench of this court in the case of Explore
Computers Pvt. Ltd. v. Cals Ltd & Anr., 2006 (90) DRJ 480.
10. Respondent No.1 in their counter affidavit have raised various
preliminary objections. It is pleaded that this court does not have territorial
jurisdiction to adjudicate the present petition. It is pointed out that the
impugned letters dated 18.08.2018 and 28.03.2019 have been issued from
Mumbai to the petitioner company at Mumbai. It is stated that merely
because respondent No.1 has its office in Delhi, does not confer territorial
jurisdiction on this court.
11. It is also pleaded that respondent No.1 bank can charge commission
or retain the margin money beyond the period of the bank guarantee,
including the claim period. It is pleaded that such terms are a matter of
contract between the parties and cannot be a subject matter of the present
writ petition.
Reliance is also placed on the judgment of the Supreme Court in the
case of Union of India & Anr. v. Indusind Bank Ltd. & Anr., 2016(9)
SCC 720 to plead that the issue raised by the petitioners in the present writ
petition is squarely covered by the aforesaid judgment.
The pleas and contentions of the petitioners have been denied.
12. Respondent No.2 in their counter affidavit have reiterated the
preliminary objection, namely, that this court has no territorial jurisdiction
to adjudicate the present petition. It is further pleaded that respondent
No.2 is not a regulator, authority or government or instrumentality of the
State and hence it would not fall under writ jurisdiction of this court. It is
further pleaded that the requirement of minimum claim period of one year
has been endorsed by the Ministry of Finance, Department of Financial
Services in consultation with RBI as conveyed in letters dated 23.04.2019
and 21.05.2019 addressed to respondent No.2. It is further stated that the
issue as to whether the petitioner can charge commission or retain margin
money beyond the period of the bank guarantee including the claim
period, is a matter of contract between the parties and cannot be a subject
matter of writ petition before this court.
13. Respondent No.3 in the counter affidavit relies upon the Master
Circular dated 01.07.2015 on Guarantees and Co-acceptances and states
that the same provides an enabling framework for the issuance of bank
guarantee. It is stated that the bank guarantees are structured according to
the terms of the agreement. The terms are decided mutually between the
parties, namely, applicant, bank and the beneficiary. Respondent
No.3/RBI has not prescribed any terms to be incorporated in the bank
guarantee. It is reiterated that terms of the bank guarantee to be issued by
the issuing bank are decided in terms of the respective policy of the
concerned banks and on the basis of contractual arrangement between the
14. I have heard learned senior counsel appearing for the petitioners and
respondent No.1 and learned counsel appearing for respondent No.2 and
respondent No.3. I have also perused the written submissions of the
petitioners and respondents No.1 and 2.
15. Learned senior counsel for the petitioners has made the following
i) Reference is made to the original section 28 of the Contract Act to
plead that the courts in India interpreted the said section 28 of the Contract
Act in a manner that although extinguishment of the remedy or curtailing
the time period for invoking the remedy was not permitted, however,
extinguishment of the right itself was held to be not hit by section 28 of
the Contract Act. In this context reference is made to the judgment of the
Kerala High Court in the case of Kerala Electrical & Allied Engineering
Co.Ltd. v. Canara Bank & Others, 1980 SCC OnLine Ker 28. Reliance is
also placed on the Ninety-Seventh Report of the Law Commission of India
dated 31.03.1984 to plead that the Law Commission had expressed its
adverse opinion on the said position regarding section 28 of the Contract
Act and suggested appropriate amendments in the said statutory provision.
Keeping in view the above stand of the Law Commission, section 28 of
the Contract Act was amended on 08.01.1997.
ii) Reliance is also placed upon the report of the Expert Committee
headed by Sh.T.R.Andhyarujina, Senior Advocate and Former Solicitor
General of India. It is pleaded that based on the above report, on
18.01.2013 Exception 3 was also introduced in section 28 of the Contract
Act. It is pleaded that Exception 3 was introduced on the request of the
banks and by virtue of the same, the banks and financial institutions could
curtail the period of limitation to institute proceedings before a court of
law to a period of 12 months rather than the mandatory period of 3 years
or 30 years as stipulated in the Limitation Act. Hence, it is pleaded that
Exception 3 to section 28 of the Contract Act has nothing to do with the
claim period to be stipulated in the bank guarantee. Exception 3 relates
only to the period available to institute proceedings before a court of law.
iii) Reliance is also placed on the RBI Circulars dated 01.07.2013 and
01.07.2015 where a model guarantee bond is prescribed which does not
give any claim period in the model form. It is reiterated that Exception 3
to section 28 of the Contract Act does not deal with the claim period at all.
iv) Reliance is placed upon para 14 of the counter affidavit of
respondent No.1 to state that respondent No.1 admits that Exception 3 to
section 28 of the Contract Act only governs the limitation period for filing
of a suit before a court of law. Reliance is also placed on the counter
affidavit of respondent No.3/RBI.
v) Reliance is also placed on the judgment of a Co-ordinate Bench of
this court in the case of Explore Computers Pvt. Ltd. v. Cals Ltd & Anr.
(Supra) to claim that the interpretation of section 28 as elaborated and
contended by the petitioners was duly accepted by the Co-ordinate Bench
in the said judgment. The said judgment, it is urged, is binding on this
16. Learned senior counsel for respondent No. 1 has raised the
(i) He has raised a number of preliminary objections. The first
preliminary objection is that this court does not have territorial jurisdiction
to adjudicate the present writ petition. It has been pleaded that the head
office of the petitioner company is in Mumbai. Letters dated 18.08.2018
and 28.03.2019 which have been challenged have been issued by the
Mumbai Branch of respondent No. 1 to the petitioner company, also based
in Mumbai. Further, the office of respondent No. 2 is also in Mumbai
whose letters dated 10.02.2017 and 05.10.2018 have been issued from the
said office. Hence, it is pleaded that there is no essential or integral cause
of action that has arisen within the territorial jurisdiction of this court.
Reliance is placed on judgment of a Five-Judge Bench of this court in the
case of Sterling Agro Industries Ltd. vs. Union of India & Ors., 2011
(124) DRJ 633 (FB) and judgment of the Supreme Court in the case of
Eastern Coalfields Ltd. and Ors. vs. Kalyan Banerjee, (2008) 3 SCC 456
to support the above submission regarding lack of territorial jurisdiction of
this court.
(ii) It is further urged that the issues raised in the present writ petition
are purely contractual issues between the petitioner and respondent No. 1.
Hence, no writ petition is maintainable as no public law element is
involved. It is pleaded that essentially, what the petitioner is aggrieved
from is the decision of respondent No. 1 to retain margin money and
charge commission for a period of not less than one year after expiry of
the validity period of the bank guarantee issued by respondent No. 1. This
is a purely contractual issue and the petitioner has no legal remedy in such
matters as claimed. It is stressed that no prayer for issuance of a writ of
mandamus can be entertained to include or exclude a clause in the
(iii) It is further strongly urged that no fundamental or legal right of the
petitioner stands infringed by the said act of respondent No. 1.
(iv) On merits, it has been stressed that Exception 3 to Section 28 of the
Contract Act entitles respondent No. 1 in law to stipulate a term in the
bank guarantee making provisions for extinguishment of the right or
discharge of any party thereto from any liability under or in respect of the
guarantee on expiry of a specified period which is not less than one year
from the date of occurring or non-occurring of a specified event for
extinguishment or discharge of such party from the said liability. Hence,
respondent No. 1 is entitled to insist on a claim period of one year.
(v) It is also pleaded that respondent No. 1 Bank is entitled to
retain/claim margin money and charge commission from a party on whose
behalf the bank guarantee was issued for the period the said respondent
Bank remains financially exposed. It is pleaded that the said stand of
respondent No. 1 bank is purely a commercial decision of the bank. Any
party including the petitioner, if it finds the said stand of respondent No. 1
unacceptable can always decline to accept insertion of any such term in
the bank guarantee and approach any other bank or financial institution
who is inclined to accept the terms and conditions offered by the
Reliance is also placed on the counter-affidavit filed by RBI where
it has been stated that the RBI recognises the autonomy of banks to take
commercial decisions in this regard.
It has been strongly stressed that there is no bar in law for
respondent No. 1 bank to fix a period (enforcement period) which should
not be less than one year in the bank guarantee. It is stressed that the
respondent Bank can for the said period of enforcement, in view of the
provision contained in Exception 3 to Section 28 of the Contract Act,
charge commission and retain the margin money for the bank guarantee as
the bank remains financially exposed during this period.
(vi) Reliance is placed on the judgment of the Supreme Court in the case
of Union of India & Anr. vs. Indusind Bank & Anr. (Supra) to plead that
the clauses in question would be valid. It has been stressed that even if it is
assumed for a moment that the observations of the Supreme Court in para
34 of the said judgment are obiter, it is pleaded that the same would
remain binding on this court.
17. Learned counsel for respondent No. 2 has pleaded as follows:-
(i) He firstly pleads that no writ petition is maintainable on account of
the impugned circulars/communications dated 10.02.2017 and 15.12.2018
which have been issued by respondent No. 2 to its members. No legal
right of the petitioner stands infringed on account of these
communications. It has been stressed that there is no contract between the
petitioner and respondent No. 2.
(ii) It has further been pleaded that the opinion of respondent No. 2 is
not conclusive and binding on the members. It is at the discretion of
member banks to follow whatever procedure they deem appropriate. It is
purely a contractual matter relating to fixation of terms and conditions on
which a bank guarantee is to be given by the member banks. The courts
would normally not interfere in such matters.
18. Learned counsel for RBI has essentially reiterated the pleas given in
the counter-affidavit.
19. Learned senior counsel for the petitioners in his rejoinder arguments
(i) He has stressed that the claim period is a contractual issue between
parties and is not governed by Exception 3 to Section 28 of the Contract
Act. The respondents should refrain from issuing circulars to the contrary.
(ii) On the issue of territorial jurisdiction of this court, it has been
reiterated that the head office and registered office of respondent No. 1 is
in Delhi. Further, it is pleaded that a perusal of the impugned
communications dated 18.08.2018 and 28.03.2019 of respondent No. 1
would show that these letters have been issued at the instance and on the
decision of the Headquarter, Law Division of respondent No.1 which is
situated in Delhi. Hence, the decision is taken in Delhi which is only
sought to be communicated by the impugned documents. Reliance is also
placed on internal circulars dated 29.04.2017 and 09.08.2017 of
respondent No. 1 to show that the decision in question has been taken by
respondent No. 1 in Delhi. The cause of action, it is stated, has clearly
arisen in Delhi.
Further, the erroneous interpretation of Section 28(b) of the
Contract Act is being implemented by the banks across the country
including in Delhi. The petitioner is executing several contracts in Delhi
and the impact of the impugned communications is being felt in Delhi.
20. I may first deal with the preliminary objection raised by learned
senior counsel for respondent No. 1 and learned counsel for respondent
No.2 regarding the lack of territorial jurisdiction of this court to deal with
the present writ petition. It is true that the impugned communications
dated 18.08.2018 and 28.03.2019 issued by respondent No. 1 have been
issued by the concerned branch of respondent No. 1 in Mumbai and are
addressed to petitioner No. 1 in Mumbai. Similarly, the circulars dated
10.02.2017 and 05.12.2018 have been issued by respondent No. 2 from its
Mumbai office.
21. I may look at the legal position in this regard. Reference may be had
to the decision of the Full Bench of Five Judges of this court in the case of
M/s. Sterling Agro Industries Ltd. vs. Union of India &Ors. (supra). The
factual position in that case was that the petitioner industry was situated in
the State of M.P. The initial order was passed by the Assistant
Commissioner of Customs, District Bhind, M.P. The appellate order was
also passed by the concerned Commissioner at Indore, M.P. The
Revisional Authority was situated in Delhi. In those facts, the court held
“33. In view of the aforesaid analysis, we are inclined to
modify the findings and conclusions of the Full Bench in New India
Assurance Company Limited (supra) and proceed to state our
(a) The finding recorded by the Full Bench that the sole cause
of action emerges at the place or location where the
tribunal/appellate authority/revisional authority is situate and
the said High Court (i.e., Delhi High Court) cannot decline to
entertain the writ petition as that would amount to failure of the
duty of the Court cannot be accepted inasmuch as such a finding
is totally based on the situs of the tribunal/appellate
authority/revisional authority totally ignoring the concept of
forum conveniens.
(b) Even if a miniscule part of cause of action arises within the
jurisdiction of this court, a writ petition would be maintainable
before this Court, however, the cause of action has to be
understood as per the ratio laid down in the case of Alchemist
(c) An order of the appellate authority constitutes a part of cause
of action to make the writ petition maintainable in the High
Court within whose jurisdiction the appellate authority is
situated. Yet, the same may not be the singular factor to compel
the High Court to decide the matter on merits. The High Court
may refuse to exercise its discretionary jurisdiction by invoking
the doctrine of forum conveniens.
(d) The conclusion that where the appellate or revisional
authority is located constitutes the place of forum conveniens as
stated in absolute terms by the Full Bench is not correct as it
will vary from case to case and depend upon the lis in question.
(e) The finding that the court may refuse to exercise jurisdiction
under Article 226 if only the jurisdiction is invoked in a
malafide manner is too restricted / constricted as the exercise of
power under Article 226 being discretionary cannot be limited
or restricted to the ground of malafide alone.
(f) While entertaining a writ petition, the doctrine of forum
conveniens and the nature of cause of action are required to be
scrutinized by the High Court depending upon the factual
matrix of each case in view of what has been stated in Ambica
Industries (supra) and Adani Exports Ltd. (supra).
(g) The conclusion of the earlier decision of the Full Bench in
New India Assurance Company Limited (supra) “that since the
original order merges into the appellate order, the place where
the appellate authority is located is also forum conveniens” is
not correct.
(h) Any decision of this Court contrary to the conclusions
enumerated hereinabove stands overruled.”
22. Reference may also be had to the judgment of the Supreme Court in
the case of Eastern Coalfields Ltd. and Ors. vs. Kalyan Banerjee,
(supra). The facts of that case were that the respondent therein was an
employee of the petitioner in Jharkhand. The services of the respondent
were terminated in Jharkhand. A writ petition was filed in the Calcutta
“6. The jurisdiction to issue a writ of or in the nature of
mandamus is conferred upon the High Court under Article 226
of the Constitution of India. Article 226(2), however, provides
that if cause of action had arisen in more than one court, any of
the courts where part of cause of action arises will have
jurisdiction to entertain the writ petition.
7. “Cause of action”, for the purpose of Article 226(2) of the
Constitution of India, for all intent and purport, must be
assigned the same meaning as envisaged under Section 20(c) of
the Code of Civil Procedure. It means a bundle of facts which
are required to be proved. The entire bundle of facts pleaded,
however, need not constitute a cause of action as what is
necessary to be proved is material facts whereupon a writ
petition can be allowed.
8. The question to some extent was considered by a three-Judge
Bench of this Court in Kusum Ingots & Alloys Ltd. v. Union of
India [(2004) 6 SCC 254] stating: (SCC p. 261, para 18)
“18. The facts pleaded in the writ petition must have a nexus
on the basis whereof a prayer can be granted. Those facts
which have nothing to do with the prayer made therein
cannot be said to give rise to a cause of action which would
confer jurisdiction on the Court.”
9. As regards the question as to whether situs of office of the
appellant would be relevant, this Court noticed decisions of this
Court in Nasiruddin v. STAT [(1975) 2 SCC 671] and U.P.
Rashtriya Chini Mill Adhikari Parishad v. State of U.P. [(1995)
4 SCC 738] to hold: (Kusum Ingots case, SCC p. 263, paras 26-
“26. The view taken by this Court in U.P. Rashtriya Chini
Mill Adhikari Parishad [(1995) 4 SCC 738] that the situs of
issue of an order or notification by the Government would
come within the meaning of the expression ‘cases arising’ in
Clause 14 of the (Amalgamation) Order is not a correct view
of law for the reason hereafter stated and to that extent the
said decision is overruled. In fact, a legislation, it is trite, is
not confined to a statute enacted by Parliament or the
legislature of a State, which would include delegated
legislation and subordinate legislation or an executive order
made by the Union of India, State or any other statutory
authority. In a case where the field is not covered by any
statutory rule, executive instructions issued in this behalf
shall also come within the purview thereof. Situs of office of
Parliament, legislature of a State or authorities empowered to
make subordinate legislation would not by itself constitute
any cause of action or cases arising. In other words, framing
of a statute, statutory rule or issue of an executive order or
instruction would not confer jurisdiction upon a court only
because of the situs of the office of the maker thereof.
27. When an order, however, is passed by a court or tribunal
or an executive authority whether under provisions of a
statute or otherwise, a part of cause of action arises at that
place. Even in a given case, when the original authority is
constituted at one place and the appellate authority is
constituted at another, a writ petition would be maintainable
at both the places. In other words, as order of the appellate
authority constitutes a part of cause of action, a writ petition
would be maintainable in the High Court within whose
jurisdiction it is situate having regard to the fact that the order
of the appellate authority is also required to be set aside and
as the order of the original authority merges with that of the
appellate authority.
11. In Om Prakash Srivastava v. Union of India [(2006) 6 SCC
“12. The expression ‘cause of action’ has acquired a
judicially settled meaning. In the restricted sense ‘cause of
action’ means the circumstances forming the infraction of the
right or the immediate occasion for the reaction. In the wider
sense, it means the necessary conditions for the maintenance
of the suit, including not only the infraction of the right, but
also the infraction coupled with the right itself.
Compendiously, as noted above, the expression means every
fact, which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of the
court. Every fact, which is necessary to be proved, as
distinguished from every piece of evidence, which is
necessary to prove each fact, comprises in ‘cause of action’.
(See Rajasthan High Court Advocates' Assn. v. Union of
13. In view of the decision of the Division Bench of the
Calcutta High Court that the entire cause of action arose in
Mugma area within the State of Jharkhand, we are of the
opinion that only because the head office of the appellant
Company was situated in the State of West Bengal, the same by
itself will not confer any jurisdiction upon the Calcutta High
Court, particularly when the head office had nothing to do with
the order of punishment passed against the respondent.”
23. What follows from the above is that under Article 226 (2), an order
or writ can be issued by a high court in relation to territories within which
the cause of action wholly or in part arises. The question as to whether a
high court has territorial jurisdiction to entertain a writ petition must be
answered on the basis of the averments made in the petition. While
entertaining a writ petition, the doctrine of forum convenience and the
nature of cause of action are also required to be scrutinized by the high
24. I may now look at the facts of this case. Respondent No. 1 has
issued two impugned communications dated 18.08.2018 and 28.03.2019.
Both the communications are merely communicating the views of HO-
Law Division of respondent No. 1 which is based in Delhi. Essentially, the
decision which is impugned in the said communication has been taken in
Delhi and merely communicated by the Mumbai office of respondent
No.1. Further, as rightly stated by the petitioner, the decisions as
communicated by respondent No. 1 on 18.08.2018 and 28.03.2019 have
an effect on the operations of petitioner No. 1 throughout India including
its operations in Delhi.
25. Similar is the position regarding the communications issued by
respondent No.2 dated 10.02.2017 and 05.12.2018. Both the
communications have been circulated to all the members of respondent
No.2, some of them are also based in Delhi.
26. The decision taken by respondent No. 1 in Delhi allegedly causes
infraction of rights of the petitioner. The infraction of the rights of the
petitioner also occurs in Delhi. In view of the above facts, it is manifest
that the part of cause of action has arisen within the territory of this court.
This court would have territorial jurisdiction to adjudicate the present writ
27. I will now deal with the issue relating to interpretation of section 28
of the Contract Act. I may first look at the historical facts pertaining to
section 28 of the Contract Act. The said provision, as it is stood prior to its
“28. Agreements in restraint of legal proceedings, void.—Every
agreement, by which any party thereto is restricted absolutely
from enforcing his rights under or in respect of any contract,
by the usual legal proceedings in the ordinary tribunals, or
which limits the time within which he may thus enforce his
rights, is void to that extent.”
28. The interpretation of the said original section 28 of the Contract Act
was dealt with by a Division Bench of the Kerala High Court in the case
of Kerala Electrical & Allied Engineering Co.Ltd. v. Canara Bank &
Others(supra). The main defence raised by the bank/defendant in the said
case was that the plaintiff had lost its rights under the bank guarantee as it
did not institute a suit within a period of six months from the date of the
expiry of the period of the bank guarantee. The said clause was noted in
para 2 of the said judgment, which reads as follows:
“2. Clause 6 of Ext. A1 bank guarantee dated 16-1-1970 reads:
“This guarantee will remain in force for a period of ONE YEAR
from the date here" of and unless a suit or action to enforce
claim under the guarantee is filed against us within six months
from the date of expiry of all your rights under the said
guarantee shall be forfeited and shall be relieved and discharged
from all liability thereunder.”
“4. S. 28 makes two kinds of agreements void. What we are
concerned in this case is the second of the two kinds, namely,
an agreement which limits the time within which a party thereto
may enforce his rights under or in respect of a contract by the
usual legal proceedings in the ordinary tribunals. It is the
limiting of the time within which the rights are to be enforced
that is made void. So, it goes without saying that rights to be
enforced under the contract should continue to exist even
beyond the shorter period agreed for enforcing those rights, to
make such an agreement void under the section. If, for example,
beyond the shorter period agreed upon the rights under the
contract cannot be kept alive, no limiting of the time to enforce
the rights under the contract arises and hence the agreement
putting a time limit to sue will not be hit by S. 28. So, a
condition in a contract that the rights thereunder accruing to a
party will be forfeited or released if he does not sue within a
time limit specified therein will not offend S. 28. This is
because, as per the contract itself, the rights accrued to the party
cease to exist by the expiry of the limited period provided for in
the contract. In such a case, in effect, there is no limiting of the
time to sue. So, an agreement which provides for a
simultaneous relinquishment of rights accrued and the remedy
to sue for them will not be hit by S. 28. But, at the same time,
an agreement relinquishing the remedy only, by providing that
if a suit is to be filed that should be filed within a time limit—
the time limit being shorter than the period of limitation under
Limitation Act—will be hit by S. 28. This is because the rights
accrued continue even beyond the time limit as the same is not
extinguished. In such a case, there is really a limiting of the
time to sue prescribed by the Limitation Act. In the instant case,
it is clear from clause 6 of Ext. A1 guarantee extracted earlier in
this judgment that the liability of the bank will be alive only for
a period of six months after the expiry of the period of duration
of the guarantee. It is also specified in clause 6 that the
plaintiffs rights under the guarantee will also be forfeited by the
end of that six months. There is an extinction of the right of the
plaintiff under the contract and a discharge of the defendants
from liability. So, the time limit imposed in clause 6 cannot be
hit by S. 28 of the Contract Act. The findings of the trial court
are perfectly legal and valid. In coming to the above
conclusions we find support in certain decisions cited at the bar
which we will presently refer to. In Shakoor Gany v. Hinde
&Co. (AIR. 1932 Bom. 330) the High Court of Bombay
considered a contention whether a condition in a bill of lading
that the claim if not brought within one year of delivery will be
barred, will be hit by S. 28 of the Indian Contract Act, 1872.
The suit in that case was brought after the one year period
"the effect of the incorporation of Art. 3, Cl, 6, into the bills
of lading in this case is that the rights of the holders have
been extinguished in respect of the claim made in this case.
As therefore the plaintiffs have no rights to enforce, there is
in my view no question of the remedy being barred, and S.
28, Contract Act does not assist the plaintiffs.”
29. Hence, the court held that limiting the time within which the rights
are to be enforced is void provided rights to be enforced under the contract
continue to exist even beyond the shorter agreed period for enforcing the
rights. If beyond the shorter period agreed between the parties, the rights
under the contract are not kept alive, no limiting of the time to enforce the
rights under the contract arises and such an agreement putting a time limit
to sue will not be hit by section 28 of the Act.
30. The Law Commission of India in his Ninety-Seventh Report dated
31.03.1984 dealt with the aforesaid interpretation of section 28 of the
Contract Act. The Law Commission took up the matter suo moto. The
Commission noted the then position regarding section 28 of the Contract
“2.4. We may, in the first place, refer to a few cases illustrating
the operation of the present position. In a case which went up to
the Supreme Court, a clause in an insurance policy provided
that all benefits under the insurance policy shall be forfeited if a
suit was not brought within a specified period. The clause was
held to be valid. The judgement expressly approves High Court
decisions which had taken a similar view, including the oft cited
Bombay case on the subject.
There are decisions of many High Courts taking a similar view.
These cases hold that it is only when a period of
limitation is curtailed that section 28 of the Contract Act comes
into operation. As was observed in a Bombay case "It [section
28] does not come into operation when the (contractual) term
spells out an extinction of the right of the plaintiff to sue or
spells out the discharge of the defendants from all liability in
2.5. The reasoning underlying these decisions is that section
28 is aimed at prohibiting agreements which could operate only
so long as the rights were in existence. The section is aimed
(b) covenants not to sue after a limited time.
A condition in a contract providing for a forfeiture of all
benefits unless an action is brought within a specified period
does not therefore violate the section. As per the contract itself,
the rights that might have accrued to the party cease to exist on
the expiry of the period provided in the contract. What is hit by
section 28 is an agreement relinquishing the remedy only, by
providing that if a suit is to be filed, then it should be filed
within the specified time limit (the time limit being shorter than
the period of limitation provided by the Limitation Act). Under
such a clause, though the rights accrued continue even beyond
the time limit and are not extinguished, yet there is a limiting of
the time to sue as prescribed by the Limitation Act. It is such a
clause that is regarded as void by reason of section 28. But if
the rights themselves are (under the contractual clause as widely
worded) extinguished, then there is no violation of limitation
law. How far this distinction is supportable or workable is a
matter to which we shall presently address ourselves.
3.1. The very brief summary of the existing legal position given
in the pre ceding paragraphs shows that a distinction is assumed
to exist between "remedy" and "right" and that distinction is the
basis of the present position under which a clause barring a
remedy is void, but a clause extinguishing the rights is valid.
Now, this approach may be sound in theory. In practice,
however, it causes serious hardship and might even be abused,
so as to defeat the cause of economic justice. Such contractual
clauses are usually inserted where the parties are not in an equal
bargaining position. By giving a clause in an agreement that
shape and character of a provision extinguishing the right (and
not merely affecting the remedy), a party standing in a superior
bargaining position can achieve something which could not
have been achieved by merely barring the remedy. In other
words, under the present law, a more radical and serious
consequence—the abrogation of rights—becomes permissible,
while a less serious device-the extinction of the mere remedy—
becomes impermissible. Prima facie, such a position appears to
be highly anomalous. By providing for the extinction of a right,
the parties are actually creating a law of prescription of their
own, which is a far more important matter than merely creating
a law of limitation of their own.
If the law does not allow the latter consequence to be
imposed by agreement, a fortiori, the law should not allow the
former consequence also to be imposed by agreement.”
5.1. We now come to the changes that are needed in the present
law. In our opinion, the present legal position as to prescriptive
clauses in contracts cannot be-defended as a matter of justice,
logic, commonsense or convenience. When accepting such
clauses, consumers either do not realise the possible adverse
impact of such clauses, or are forced to agree because big
corporations are not prepared to enter into contracts except on
these onerous terms. “Take it or leave it all", is their general
attitude, and because of their superior bargaining power, they
naturally have the upper hand. We are not at present, dealing
with the much wider field of "standard form contracts" or
"standard" terms. But confining ourselves to the narrow issue
under discussion, it would appear that the present legal position
is open to serious objection from the common man's point of
view. Further, such clauses introduce an element of uncertainty
in transactions which are entered into daily by hundreds of
persons.
5.2. It is hardly necessary to repeat all that we have said in the
preceding Chapters about the demerits of the present law.
Briefly, one can say that the present law, which regards
prescriptive clauses as valid while invalidating time limit
clauses which merely bar the remedy, suffers from the
(a) It causes serious hardship to those who are economically
disadvantaged and is violative of economic justice.
(b) In particular, it harms the interests of the consumer,
dealing with big corporations.
(c) It is illogical, being based on a distinction which treats
the more severe flaw as valid, while invalidating a lesser
(d) It rests on a distinction too subtle and refined to admit of
easy application in practice. It thus, throws a cloud on the
rights of parties, who do not know with certainty where they
stand, ultimately leading to avoidable litigation.
5.3. On a consideration of all aspects of the matter, we
recommend that section 28 of the Indian Contract Act, 1872,
should be suitably amended so as to render invalid contractual
clauses which purport to extinguish, on the expiry of a specified
term, rights accruing from the contract. Here is a suggestion for
re-drafting the main paragraph of section 28.
Revised Section 28, main paragraph, Contract Act as
(a) by which any party thereto is restricted absolutely from
enforcing his rights under or in respect of any contract by
the usual legal proceedings in the ordinary tribunals, or
(b) which limits the time within which he may thus enforce his
(c) which extinguishes the rights of any party thereto under or
in respect of any contract on the expiry of a specified period
or on failure to make, a claim or to institute a suit or other
legal proceeding within a specified period, or
(d) which discharges any party thereto from any liability under
or in respect of any contract in the circumstances specified
in clause (c), is void to that extent.”
31. The Commission noted the settled legal position about old Section
28 of the Contract Act including the aforesaid judgment of the Kerala
High Court in Kerala Electrical & Allied Engineering Co.Ltd. v. Canara
Bank & Others(supra). The Commission concluded that by providing for
the extinction of a right, the parties are actually creating a law of
prescription of their own, which is a far more important matter than
merely creating a law of limitation of their own. The Commission
recommended suitable amendment to Section 28 of the Contract Act to
render invalid contractual clauses that extinguish on the expiry of a stated
period the rights accruing from the contract.
32. It is in this background that on 08.01.1997 section 28 of the
Contract Act was amended. The Statement of Objects and Reasons for
“The Law Commission of India has recommended in its 97th
Report that Section 28 of the Indian Contract Act, 1872 may be
amended so that the anomalous situation created by the existing
section may be rectified. It has been held by the courts that the
said Section 28 shall invalidate only a clause in any agreement
which restricts any party thereto from enforcing his rights
absolutely or which limits the time within which he may
enforce his rights. The courts have, however, held that this
section shall not come into operation when the contractual term
spells out an extinction of the right of a party to sue or spells out
the discharge of a party from all liability in respect of the claim.
What is thus hit by Section 28 is an agreement relinquishing the
remedy only i.e. where the time limit specified in the agreement
is shorter than the period of limitation provided by law. A
distinction is assumed to exist between remedy and right and
this distinction is the basis of the present position under which a
clause barring a remedy is void, but a clause extinguishing the
rights is valid. This approach may be sound in theory but, in
practice, it causes serious hardship and might even be abused.
It is felt that Section 28 of the Indian Contract Act, 1872 should
be amended as it harms the interests of the consumer dealing
with big corporations and causes serious hardship to
those who are economically disadvantaged.
The Bill seeks to achieve the above objects.”
33. The newly enacted section 28 of the Contract Act after the
“28. Agreements in restraint of legal proceedings, void. -
(a)By which any party thereto is restricted absolutely from
enforcing his rights under or in respect of any contract, by the
usual legal proceedings in the ordinary tribunals, or which
limits the time within which he may thus enforce his rights; or
(b)Which extinguishes the rights of any party thereto, or
discharges any party thereto from any liability, under or in
respect of any contract on the expiry of a specified period so as
to restrict any party from enforcing his rights, is void to that
extent.
Exception 1.—Saving of contract to refer to arbitration
dispute that may arise. This section shall not render illegal a
contract, by which two or more persons agree that any dispute
which may arise between them in respect of any subject or class
of subjects shall be referred to arbitration, and that only the
amount awarded in such arbitration shall be recoverable in
respect of the dispute so referred.
Exception 2.—Saving of contract to refer questions that have
already arisen. Nor shall this section render illegal any contract
in writing, by which two or more persons agree to refer to
arbitration any question between them which has already arisen,
or affect any provision of any law in force for the time being as
to references to arbitration.”
34. Union of India, thereafter, constituted an Expert Committee for
Recommending Changes in the Legal Framework Concerning Banking
System which was headed by Sh.T.R.Andhyarujina, Senior Advocate and
Former Solicitor General of India on 15.02.1999. The Committee noted
the effect of amended section 28 of the Contract Act as incorporated by
“The amendment, therefore, cuts at the root of the
problem of making fine distinctions between the
extinguishment of a right which does not cut down the statutory
period of limitation and the extinguishment or a forfeiture of a
remedy which does cut down the statutory period of limitation.
The amendment equates extinguishing of a right with the
extinguishing of the remedy if there is an agreement which
extinguishes the right under the contract on the expiry of a
specified period.”
35. The Committee noted the apprehensions due to the amendment
expressed by the banks and the financial institutions and quoted from the
Second Narasimham Committee Report as follows:
“8.10 Banks have expressed a fear that they can no longer limit
their liabilities under the Bank Guarantees to a specified period
and they will have to carry their Bank Guarantee commitments
for long periods as outstanding obligations. Banks also
apprehend that in case of Bank Guarantee to the Government,
notwithstanding stipulation in the bank guarantee that it should
be in force within a specified period, banks will be forced to
treat in their books their liability under the Bank Guarantee to
the Government as outstanding till the limitation period of 30
years available to the Government lapses. This will also force
banks to continue to hold the securities taken for bank
guarantees especially the funds deposited as margins, for long
periods, and also severely curtail issue of fresh bank guarantee
for their customers. If a bank chooses to continue the issuance
of bank guarantees to its customers, it will have to reflect in its
books the progressively increasing levels of bank guarantee
obligations, thereby inflating the risk weighted assets of the
banks without any real increase in the banking assets. This will
pre-empt the available capital to meet the capital adequacy
requirement and will also over stretch the exposure to the
customers beyond acceptable levels.
8.11 Government departments do not generally return the
original guarantee papers to the banks after the purpose is
served. With the aforesaid amendment in force, banks will have
to carry their liabilities under bank guarantee till 30 years.
Unless, the original guarantee is received back from the
beneficiary Government departments, the Banks will not be able
to round off all their entries till the limitation period of 30 years
Bank's guarantee business may be, severely hampered as a
result with attendant implications for the economy as a whole. It
would appear that the whole issue needs to be re-examined and
bank guarantees exempted from the purview of the above
amendment.”
“This Committee is of the view that in the face of the amended
provision of Section 28, it would be now difficult to sustain a
prescriptive clause, howsoever worded, in a bank guarantee
which limits the period of banks and financial institutions
liability to a period lesser than the normal period of limitation.
In case of guarantees to Government this period is as large as 30
years. The distinction between extinguishment of right and of
remedy would no longer be available to banks and financial
institutions since the amendment has been made with the
declared objective of doing away with that distinction. Reliance
on Court judgements e.g. Food Corporation of India Vs. New
India Assurance Co.Ltd. (1994) 3 SCC 324 prior to amendment
would not be of any help since the amendment sets at naught
the distinction made by these judgements.
....... Accordingly, a reasonable period has to be provided to the
creditor to enforce his rights under the guarantee after the
happening of the specified event. The Committee believes that a
period of one year would be reasonable for banks and financial
institutions.
The Committee is of the view that such an amendment
may be made by incorporating a suitable proviso in Section 28
of the Contract Act itself, on the following lines:-
"Provided that an agreement, being a guarantee issued by
a banking company or a financial institution, shall not be
deemed to be void by reason of the fact that such agreement
contains a stipulation for extinguishment of the rights, or
discharge of, any party thereto from any liability under or in
respect of such agreement on the expiry of a specified period
which is not less than one year from the date of occurring or
non occurring of a specified event for extinguishment or
discharge of such party from the said liability.”
36. It is, thereafter, on 18.01.2013 that the Parliament added Exception
3 to section 28 of the Contract Act, which reads as follows:
“Exception 3 - Saving of a guarantee agreement of a bank or a
This section shall not render illegal a contract in writing by
which any bank or financial institution stipulate a term in a
guarantee or any agreement making a provision for guarantee
for extinguishment of the rights or discharge of any party
thereto from any liability under or in respect of such guarantee
or agreement on the expiry of a specified period which is not
less than one year from the date of occurring or non-occurring
of a specified event for extinguishment or discharge of such
party from the said liability.”
37. What follows from the aforesaid historical narration pertaining to
section 28 of the Contract Act is that the said provision i.e. section 28 of
the Contract Act prior to the amendment provided that a clause limiting
the time within which the rights are to be enforced, is void, if the rights to
be enforced under the contract continued to exist even beyond the shorter
period agreed for enforcing the rights. If beyond the shorter period agreed
between the parties for enforcing the rights, the rights under the contract
are not kept alive, then such an agreement putting a time limit to sue was
not hit by section 28 of the Contract Act.
The Law Commission in the above noted report adversely
commented on the said provision and held that prima facie such a position
as noted above appears to be highly anomalous. By providing for
extinction of a right, the parties are actually creating a law of prescription
of their own, which is a far more important matter than merely creating a
law of limitation of their own. Hence, the Law Commission recommended
amendments to section 28 of the Contract Act. The amendment was
accordingly carried out on 08.01.1997.
The newly added section 28 of the Contract Act was enacted to do
away with the earlier distinction between remedy and right i.e. a clause
barring the remedy only was void but a clause extinguishing a right was
valid. The said clause now provides that the beneficiary of the bank
guarantee i.e. creditor would have time to approach the appropriate court
for enforcement of his rights under the bank guarantee in terms of the
provision of the Limitation Act i.e. 3 years for private parties and 30 years
for government parties.
In this background, the T.R. Andhyarujina Committee
recommended that the said period be reduced to one year for enforcing the
rights under the bank guarantee after happening of a specified event.
Thereafter, Exception 3 to section 28 of the Contract was added in 2013.
The above narration of the historical facts leading to the present
section 28 of the Contract Act clearly demonstrates that Exception 3 to
section 28 of the Contact Act deals with the rights of a creditor to enforce
his rights under the bank guarantee after happening of a specified event.
38. The above view is fortified by a judgment of a Co-ordinate Bench
of this court in Explore Computers Pvt. Ltd. v. Cals Ltd & Anr.(supra).
Relevant part of the judgement reads as follows:
“17. The plaintiff also seeks to challenge the last clause of the bank
guarantee which limits the rights of the plaintiff to file a suit/claim
only up to the claim period as the same is alleged to be void in view
of the provisions of Section 28 of the Indian Contract Act, 1872.
The plaintiff thus claims the right to file a suit in accordance with
the Limitation Act, 1963 as the rights granted by the Limitation Act
cannot be abridged by the provisions made in the bank guarantee.
The plaintiff has thus filed a suit for recovery of the amount
mentioned aforesaid along with interest at the rate of 36 per cent per
annum from 13.10.1998 till the date of realization.
55. In my considered view it is not open for defendant No. 2 to
contend that if any suit or claim is not filed within one month of the
expiry of the bank guarantee, the right of the plaintiff to institute
any legal proceedings itself is extinguished. Such a plea would fly
in the face of the amended Section 28 as defendant No, 2 cannot be
discharged from the liability nor can the rights of the plaintiff be
extinguished by inclusion of the clause providing so. I am thus of
the considered view that to the extent there is restriction on any suit
or claim being filed by the plaintiff beyond a period of one month
from the expiry of the bank guarantee, the said clause would not
prohibit the plaintiff from instituting the suit as it would be barred
by the provisions of the amended Section 28 of the Contract Act.
56. The question however remains whether the same principal
would apply in case of the invocation of the bank guarantee which
is distinct from a suit or claim to be filed by the plaintiff on account
of refusal of defendant No. 2 to pay the amount under the bank
guarantee. That is the first question mentioned above. In my
considered view, Section 28 would have no play in such a case
where matter is only relating to the terms of the guarantee to the
extent it requires a party to invoke the guarantee during the life time
of the guarantee. The sequitar to this would be to consider whether
the plaintiff did invoke the bank guarantee within this period
specified. The answer to this question depends on the interpretation
of the terms of the bank guarantee in view of the two dates
stipulated and the different phraseologies used for the same. The
observations of the Supreme Court in State of Maharashtra v. Dr.
M.N. Kaul case (supra) do make it clear that it is the terms under
which the guarantor has bound himself which have to be seen and in
case of ambiguity when all other rules of construction fail, the
guarantee must be interpreted contra preferentum. On a reading of
the bank guarantee, in my considered view, there is really no
ambiguity if the guarantee is read as a whole. The last paragraph of
the bank guarantee is being once again re-produced for purposes of
“Notwithstanding anything contained herein above, our liability
under this guarantee shall be limited to an amount of Rs 10.00
lacs (Rupees ten lacs only), and shall remain valid up to
12.01.1997 unless suit to enforce any claim under the guarantee is
filed against us on or before 12.02.1997 all the rights of Explore
Computers Private Limited shall be relieved and discharged from
all liabilities there under.”
57. The said clause, a ‘notwithstanding’ clause, makes it clear that
irrespective of what had been stated prior to clause (a) in the bank
guarantee, the liability of the bank under the guarantee was limited
to the amount specified and was to remain valid only up to dates
specified which was 22.02:1997 (extended up to 11.07.1997 by Ex
D-3). The second qualification was that the suit to enforce any such
claim under the guarantee was to be filed on or before 22.03.1997
(extended up to 11:08.1997 as per ExD-3). Thus two things had to
be done: a) the claim under the bank guarantee had to be lodged
prior to a particular date arid b) the suit had to be filed before
another date one month thereafter. It is only the second part of the
guarantee which would be hit by Section 28 of the Contract Act and
the first part would remain alive. In fact this is the view even
expressed in the Food Corporation of India v. National Insurance
Company Case (supra). It may be noticed that the Supreme Court in
the said judgment has taken note of the earlier judgment in the Food
Corporation of India v. New India Insurance Company Limited,
AIR 1994 SC 1889 where it was held that the restriction contained
in the insurance agreement that a person to be indemnified shall
have no right after six months from termination of the principal
contract does not mean that the suit to enforce insurance has to be
filed within six months. Only the payment had to be made to the
insurer within six months and it is a condition precedent for filing
the suit. In the facts and circumstances, there is similarity between
the views expressed in the Food Corporation of India Case (supra)
and the present case.”
39. Hence, the court held that any restriction on any suit or claim to be
filed by the plaintiff beyond a specified period where such a provision
prohibits the plaintiff from filing a suit contrary to the Limitation Act
would be barred under section 28 of the Contract Act. (This judgment was
passed before insertion of Exception 3 of Section 28 of the Contract Act.)
40. It is clear that Exception 3 to Section 28 of the Contract Act deals
with curtailment of the period for the creditor to approach the
court/tribunal to enforce his rights. It does not in any manner deal with the
claim period within which the beneficiary is entitled to lodge his claim
with the bank/guarantor.
41. The above interpretation is also accepted by respondent No. 1 in the
counter-affidavit. Reference may be made to para 14 of the Counter
affidavit of respondent No.1/PNB, which reads as follows:
“14. That the contents of Para 14 are not denied. It is submitted
that averment made by the petitioner in para 13 is itself in
contradiction to Para 14. It is further submitted that the
beneficiary can raise claim under the Bank Guarantee, for any
default occurred during its currency, within the validity period
of Bank Guarantee or claim period and in the event the same is
not paid or honored by the Promisor (Bank), inter- alia, for the
reason that the Bank Guarantee has not been invoked as per the
terms and conditions of the Bank Guarantee or the Principal
Debtor has obtained the stay from the Court, in such eventuality
the beneficiary of a Bank Guarantee can raise claim against the
Bank as well as the Principal Debtor within a period of 03 years
(in case of Private Party) and within a period of 30 years (in
case of Government Department). In such eventuality the Bank
would also be required to make provision in its balance sheet
towards contingent liability. It is to address one of such issue,
the legislature have inserted Exception -3 to Section 28 of the
Indian Contract Act, 1872, which inter alia, provides that in
case a term is provided for in the Guarantee and Agreement by
the Bank or Financial Institution that in case no claim is filed
before the Court of Law within a period, which is not less than
12 months, from the date of occurring or non occurring of the
specified event the liability of the Bank shall get extinguished
and the Bank shall stand discharge from its liability under the
Bank Guarantee. Therefore, providing of such term cannot be
alleged to be contrary to law. On the contrary providing of such
term in the Contract would be in accordance with the provisions
contained in Section 28 of the Contract Act, 1872.”
42. Clearly, respondent in the counter affidavit admits that Exception 3
to section 28 of the Contract Act deals with a clause in a bank guarantee to
the effect that in case no claim is filed before the court of law within a
period which is not less than 12 months from the date of occurring or non-
occurring of the specified event, the liability of the bank shall get
extinguished. Such a term is not contrary to law. There is a clear
admission that Exception 3 to section 28 of the Contact Act deals with the
period within which the beneficiary is to approach an appropriate court to
raise its claim. Exception 3 does not deal with the claim period i.e. the
extended period within which the beneficiary can invoke the bank
guarantee after expiry of the validity of the bank guarantee for a default
that occurred during the validity period.
43. I may deal with another plea strenuously urged by the learned senior
counsel for respondent No. 1. Reliance was placed on the judgment of the
Supreme Court in the case of Union of India & Anr. vs. Indusind Bank
& Anr. (supra) to urge that the said judgment supports the plea of
respondent No. 1 about interpretation of section 28 of the Contract Act.
The Supreme Court in the said judgment held as follows:-
“18. What emerges on a reading of the Law Commission Report
together with the Statement of Objects and Reasons for the
Amendment is that the Amendment does not purport to be
either declaratory or clarificatory. It seeks to bring about a
substantive change in the law by stating, for the first time, that
even where an agreement extinguishes the rights or discharges
the liability of any party to an agreement, so as to restrict such
party from enforcing his rights on the expiry of a specified
period, such agreement would become void to that extent. The
amendment therefore seeks to set aside the distinction made in
the case law up to date between agreements which limit the
time within which remedies can be availed and agreements
which do away with the right altogether in so limiting the time.
These are obviously substantive changes in the law which are
remedial in nature and cannot have retrospective effect.
24. On a conspectus of the aforesaid decisions, it becomes clear
that Section 28, being substantive law, operates prospectively,
as retrospectivity is not clearly made out by its language. Being
remedial in nature, and not clarificatory or declaratory of the
law, by making certain agreements covered by Section 28(b)
void for the first time, it is clear that rights and liabilities that
have already accrued as a result of agreements entered into
between parties are sought to be taken away. This being the
case, we are of the view that both the Single Judge [Union of
India v. Bhagwati Cottons Ltd., 2008 SCC OnLine Bom 217]
and the Division Bench [Indusind Bank Ltd. v. Union of India,
2011 SCC OnLine Bom 1972] were in error in holding that the
amended Section 28 would apply.
26. At this point, it is necessary to set out the exact clause in the
bank guarantees in the facts of the present cases. One such
“… Unless a demand or claim under this guarantee is made
against us within three months from the above date (i.e. on or
before 30-4-1997), all your rights under the said guarantee
shall be forfeited and we shall be relieved and discharged
from all liabilities hereunder.”
27. A similar clause contained in another bank guarantee reads
“… Provided however, unless a demand or claim under this
guarantee is made on us in writing within 3 months from the
date of expiry of this guarantee in respect of export of
416.500 MT 2450 bales of raw cotton, we shall be discharged
from all liability under this guarantee thereafter.”
28. A reading of the aforesaid clauses makes it clear that neither
clause purports to limit the time within which rights are to be
enforced. In other words, neither clause purports to curtail the
period of limitation within which a suit may be brought to
enforce the bank guarantee. This being the case, it is clear that
this Court's judgment in Food Corporation of India v. New
India Assurance Co. Ltd. [(1994) 3 SCC 324] would apply on
all fours to the facts of the present case.
34. Considering that the respondents' first argument has been
accepted by us, we do not think it necessary to go into the finer
details of the second argument and as to whether the aforesaid
clauses in the bank guarantee would be hit by Section 28(b)
after the 1997 Amendment. It may only be noticed, in passing,
that Parliament has to a large extent redressed any grievance
that may arise qua bank guarantees in particular, by adding an
Exception (iii) by an amendment made to Section 28 in 2012
with effect from 18-1-2013. Since we are not directly concerned
with this amendment, suffice it to say that stipulations like the
present would pass muster after 2013 if the specified period is
not less than one year from the date of occurring or non-
occurring of a specified event for extinguishment or discharge
of a party from liability. The appeals are, therefore, dismissed
with no order as to costs.”
44. Much reliance was placed on para 34 of the aforesaid judgment by
learned senior counsel for respondent No.1 to justify the stand taken in the
impugned circulars. It was strongly urged that the said observation of the
Supreme Court was binding on this court. A perusal of para 28 of the
judgment clearly shows that the court interpreted the relevant clauses of
the bank guarantee holding that neither of the clauses seeks to limit the
time within which the right is to be enforced, namely, in other words
neither of the clauses purports to curtail the period of limitation within
which a suit may be brought to enforce the bank guarantee. The said
clauses were not dealing with the claim period i.e. the grace period beyond
the validity of the bank guarantee to make a demand on the bank for a
default which had occurred during the validity period. The above
judgment is of no help to respondent No. 1.
45. I may now again look at the impugned communications dated
18.08.2018 and 28.03.2019 issued by respondent No. 1 Bank. Relevant
portion of the communication dated 18.08.2018 reads as follows:-
This has reference to your request for waiver of
mandatory 1year claim period in Bank Guarantee relying on
opinion of M/s Juris Corp, law firm, in this respect
Both M/s Shardul Amarchand Mangaldas and Legal
Retainer, after studying the matter in detail including the said
opinion of M/s Juris Corp, the aforesaid judgement of Hon'ble
Supreme Court and the said legal opinion of Justice (Retd.) Shri
B. N. Srikrishna, have in their considered opinion endorsed a
standpoint that any stipulation in a BG limiting the claim period
to less than 12 months shall be void under section 28 of the
Indian Contract Act 1872. In order to avail the protection
provided under Exception 3 to Section 28 of Contract Act, the
claim period in BG must be for at least 12 months.
As such, we reiterate our opinion in this matter that any
period of claim in a BG which is less than 12 months shall be
void in law. Also, in a legal dispute once such a clause in BG
providing a claim period of less than 12 months is declared
void, it may effectively increase the claim period under BG to
three years under Limitation Act, which shall be even more
disadvantageous to the Bank.”
46. A somewhat similar view is taken in the communication dated
47. Reference may also be had to Circular dated 05.12.2018 of
respondent No.2, relevant para of which reads as follows;-
“4. In view of the foregoing, it will be a safer course in the
interest of the banks, though not obligatory under law, to issue
every guarantee (regardless of the guarantee period) with a
minimum claim period of one year on top of the guarantee period
so as to avail benefit of Exception 2 to Section 28 of Indian
48. It is clear that respondent No. 1 is erroneously of the view that they
are in law mandated to stipulate a claim period of 12 months in the bank
guarantee failing which the clause shall be void under Section 28 of the
Contract Act. A perusal of para 15 of the writ petition shows that a claim
period has been explained as a time period contractually agreed between
the creditor and the principal debtor which provides a grace period beyond
the validity period of the guarantee to make a demand on the bank for a
default which has occurred during the validity period. Respondent No. 1
does not deny the above averments of the petitioner in the counter-
affidavit. As noted above, Section 28 of the Contract Act does not deal
with the said claim period. It deals with right of the creditor to enforce his
rights under the bank guarantee in case of refusal by the guarantor to pay
before an appropriate court or tribunal.
49. In view of the above communications dated 18.08.2018 and
28.03.2019 as issued by respondent No. 1 and the circulars dated
10.02.2017 and 05.12.2018 to the extent that they reproduce erroneous
interpretation of Exception 3 to Section 28 of the Contract Act are clearly
vitiated. It is ordered accordingly.
50. I may now deal with another plea raised by the respondents,
namely, that the issue of prescribing the bank charges and the period for
retention of security are matters of contract and this court cannot interfere
in such contractual matters especially as they are not contrary to any rules
or regulations or stipulation framed by RBI.
51. I may only note that in the writ petition, no relief is sought by the
petitioner pertaining to the bank charges to be charged by the banks or the
duration for which the bank may seek to maintain collateral security.
Hence, this court has not in any manner dealt with the said aspects.
52. The petition is accordingly disposed of as above. All pending
applications, if any, are also disposed of.
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"Exception 3 does not deal with the claim period. It deals with right of the creditor to enforce his rights under the bank guarantee"In an important judgment, the Delhi High Court has interpreted Exception 3 to Section 28 of the Indian Contract Act 1872 to hold that it does not deal with 'claim period' under Bank Guarantees. The Court held that this provision deal with the curtailment of the period for the creditor to approach the court or tribunal to enforce the rights under the bank guarantee."It is clear that Exception 3...
In an important judgment, the Delhi High Court has interpreted Exception 3 to Section 28 of the Indian Contract Act 1872 to hold that it does not deal with 'claim period' under Bank Guarantees. The Court held that this provision deal with the curtailment of the period for the creditor to approach the court or tribunal to enforce the rights under the bank guarantee.
"It is clear that Exception 3 to Section 28 of the Contract Act deals with curtailment of the period for the creditor to approach the court/tribunal to enforce his rights. It does not in any manner deal with the claim period within which the beneficiary is entitled to lodge his claim with the bank/guarantor", the judgment authored by Justice Jayant Nath held.
The consequence of this interpretation is that banks cannot insist that the claim period in bank guarantees should be a minimum of 12 months.
"Claim Period" is a time period contractually agreed upon between the creditor and principal debtor, which provides a grace period beyond the validity period of the guarantee to make a demand on the bank for a default, which occurred during the validity period.
Section 28 of the Contract Act holds,among other things, that agreements which impose a time limit for initiating legal proceedings to enforce contractual rights are void. However, Exception 3 to Section 28, which was added by the amendment made in 2013, saves the stipulations made by banks or financial institutions in bank guarantees for extinguishment of rights or discharge of liability after the expiry of the specified period. Exception 3 also adds that such specified period should not be less than one year.
Interpreting Exception 3 to Section 28, the Indian Banks Association issued circulars in 2017 and 2018 stating that 'claim periods' in bank guarantees which are less than 12 months will be void. Based on this circular, the Punjab National Bank issued a communication to infrastructure giant Larsen & Toubro forcing a mandatory and an unalterable claim period of a minimum 12 months for the bank guarantee.
The fallout of such an interpretation is that L&T is made liable to pay commission charges for such extended bank guarantee though as per the contract between the principal debtor and the creditor, the claim period would be much shorter than 12 months. In addition, the borrower also become liable to maintain collateral security for supporting such extended claim period.
In this background, L&T filed a writ petition in the Delhi High Court challenging the communication of PNB and the circulars of IBA. It was argued that the extended claim period effects the petitioners' capability to do business by entering into new contracts and effects the fundamental rights of the petitioners under Article 19(1)(g) of the Constitution of India.
Justice Jayanth Nath, who considered the petition, elaborately discussed the legislative history of Section 28 and the various recommendations made by the Law Commission of India to understand the true intent of Exception 3 to Section 28.
"The above narration of the historical facts leading to the present Section 28 of the Contract Act clearly demonstrates that Exception 3 to Section 28 of the Contact Act deals with the rights of a creditor to enforce his rights under the bank guarantee after happening of a specified event", the judgment stated.,
The Court also noted that the PNB, in its counter-affidavit, has admitted to this legal position. There is a clear admission that Exception 3 to section 28 of the Contact Act deals with the period within which the beneficiary is to approach an appropriate court to raise its claim.
"Exception 3 does not deal with the claim period i.e. the extended period within which the beneficiary can invoke the bank guarantee after expiry of the validity of the bank guarantee for a default that occurred during the validity period", the Court said.
The High Court also referred to the Supreme Court judgment in Union of India & Anr. vs. Indusind Bank & Anr.
"It is clear that respondent No. 1(PNB) is erroneously of the view that they are in law mandated to stipulate a claim period of 12 months in the bank guarantee failing which the clause shall be void under Section 28 of the Contract Act.
As noted above, Section 28 of the Contract Act does not deal with the said claim period. It deals with right of the creditor to enforce his rights under the bank guarantee in case of refusal by the guarantor to pay before an appropriate court or tribunal", the Court reiterated.
In conclusion, the Court held that the Circulars of the Indian Bank Association issued in 2017 and 2018 and the communication issued by the PNB as erroneous.
Case : Larsen and Toubro Ltd & Another Versus Punjab National Bank and Another
Appearances : For L&T : Mr.Neeraj Kishan Kaul, Sr.Adv. with Mr.Rishi Agrawala, Mr.Karan Luthra, Ms.Megha Bengani, Mr.Deepak Joshi and Mr.Aakash Lamba, Advs.
For PNB : Mr.Dhruv Mehta, Sr.Adv. with Mr.Rajesh Gautam, Mr.Anant Gautam and Mr.Nipun Sharma, Advs.
For IBA : Dr.Lalit Bhasin, Ms.Nina Gupta, Ms.Ananya Marwah, Ms.Ruchika Joshi and Mr.Ajay Pratap Singh, Advs
For RBI : Mr.Ramesh Babu, Ms.Nisha Sharma and Ms.Tanya Chowdhary
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Ms Gauri Godse, i/b. Mr. Rohit Joshi for the Respondent.
1. Learned counsel for the Petitioner-husband states that the
Petitioner-father has had no access to the children since June-2020. He
states that the father of the Petitioner is having health issues and he
would like to see his grandchildren. It is stated that the previous order
dated 10/03/2022 whereby this Court had allowed access on the birthday
of the children was not complied with.
2. Needless to state that the Petitioner-father, the non-custodial
parent cannot be deprived of his right to spend quality time and enjoy the
company of the children. Furthermore, the children also have right to
love and affection of both parents as well as grandparents. This is
essential for personal development and overall well being of the children.
3. Hence, without going into the merits of the matter the
Petitioner-father is permitted to have access to the children from 14 th
April, 2022 to 16th April 2022. The Respondent -mother shall bring the
children to Phoenix Mall, Viman Nagar, Pune, on 14/04/2022 at 11.00
a.m. The parents and children shall spend time together till 3.00 p.m.
The Petitioner shall take custody of the children on 14/04/2022 at 3.00
p.m. The Petitioner shall bring the children to Phoenix mall on
17/04/2022 at 11.00 a.m. and spend time together till 3.00 p.m. and
hand over custody of the children to the Respondent -mother on
17/04/2022 by 3.00 p.m.
4. Considering the nature of the dispute, the matter is referred
for mediation and with consent Smt. Shalini Phansalkar-Joshi, former
Judge of this Court is appointed as a Mediator with a request to mediate
and assist the parties in arriving at an amicable settlement and to submit
the report preferrably within six months.
5. Matter be listed on 21/04/2022 to decide the issue of interim
access arrangement.
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The Bombay High Court on Wednesday observed that non-custodial parent cannot be deprived of his right to spend quality time and enjoy the company of the children. Moreover, the children also have right to love and affection of both parents as well as grandparents. The Petitioner herein is the non-custodial parent. His father is unwell and was desirous of meeting with his grandchildren.... The Bombay High Court on Wednesday observed that non-custodial parent cannot be deprived of his right to spend quality time and enjoy the company of the children. Moreover, the children also have right to love and affection of both parents as well as grandparents. The Petitioner herein is the non-custodial parent. His father is unwell and was desirous of meeting with his grandchildren. The petitioner, non-custodial parent, stated that he has had no access to the children since June-2020. It was alleged that the previous order dated 10/03/2022 whereby the Court had allowed access on the birthday of the children was also not complied with. However, without getting into merits of the case, Justice Anuja Prabhudessai stated,
"the children also have right to love and affection of both parents as well as grandparents. This is essential for personal development and overall well-being of the children." The Single Judge permitted the Petitioner-father to four days' access to the children and referred the matter for mediation so that the parties may arrive at an amicable settlement. The mediator has been asked to submit the report preferably within six months. "The Petitioner shall take custody of the children on 14/04/2022 at 3.00 p.m. The Petitioner shall bring the children to Phoenix mall on 17/04/2022 at 11.00 a.m. and spend time together till 3.00 p.m. and hand over custody of the children to the Respondent -mother on 17/04/2022 by 3.00 p.m.," it ordered.
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. Present application has been filed under Section 482 of the
Code of Criminal Procedure (for short "Cr.P.C.") for quashing the
First Information Report (for short "FIR") bearing Crime No.341 of
2020 registered with Bhagyanagar Police Station, Dist. Nanded for
the offences punishable under Sections 498-A, 323, 504, 506 read
with Section 34 of Indian Penal Code (for short "IPC") and also the
proceedings in R.C.C. No.850 of 2020 pending before the learned
2. Applicant No.1 is the husband of respondent No.2. Applicant
No.2 is the mother of applicant No.1 and mother-in-law of
respondent No.2. Applicant No.3 is the elder married sister of
applicant No.1 and sister-in-law of respondent No.2.
3. The informant - respondent No.2 lodged report with the
Bhagyanagar Police Station, Dist. Nanded on 09.09.2020. Her
marriage was performed with applicant No.1 on 12.12.2019 at
Pune. According to her, the entire marriage expenses were borne
by her father and at the time of marriage gold weighing 21 Tolas,
one gold chain of one and half Tola, ring of 5 gm. and cash of
Rs.1,00,000/- was given. She states that she was treated properly
for about a month by the applicants and thereafter, she was treated
like maid servant. The applicants started demanding amount of
Rs.4,00,000/- for purchasing four wheeler. When she told that her
father doesn't have that much amount, then applicant No.1 -
husband had harassed her physically as well as mentally.
Thereafter, she was taken to Doctor so that there should be son
born to the couple, but the Doctor told that the gestation period is
not complete. Thereafter, applicant Nos.2 and 3 had assaulted her
by slap and kicks and abused her, threatened her by saying that she
has defrauded them. She then states in the FIR that applicant Nos.2
and 3 went to her father's place at Parimal Nagar, Nanded and told
to the informant that if amount of Rs.4,00,000/- is brought as
stated by applicant No.1 then only she would be allowed to cohabit.
She was assaulted at that time and this incident had taken place at
about 12.00 p.m. on 27.06.2020. She has then lodged the report.
4. Heard learned Advocate Mr. Sagar Bhingare for the applicants,
learned APP Mr. S. J. Salgare for respondent No.1 - State, learned
Advocate Mr. S. S. Khoche for respondent No.2 and learned
Advocate Mr. S. B. Solanke for respondent No.2 (Appointed).
5. It has been vehemently submitted on behalf of the applicants
that the FIR appears to be a concocted version. It was the second
marriage of respondent No.2. She had earlier married to one Sunil
Divakar Jahagirdar and against said Sunil Jahagirdar and his family
members, respondent No.2 had lodged FIR on 04.02.2017 and
charge-sheet was filed against them vide R.C.C. No.51 of 2017
before learned Judicial Magistrate First Class, Degloor. All those
persons came to be acquitted by the concerned Court on
26.03.2019. The copy of the charge-sheet and the judgment in
that case has been produced on record. She had also filed
application under Section 12 of the Protection of Women from
Domestic Violence Act, 2005 against her earlier husband and others
before learned Judicial Magistrate First Class, Degloor and
ultimately, that application came to be withdrawn on 19.03.2019 in
view of pursis Exhibit-33. Respondent No.2 had also filed petition
for divorce against said Sunil Divakar Jahagirdar before learned
Civil Judge Senior Division, Biloli, Dist. Nanded bearing Petition
No.33 of 2018. The said petition came to be allowed on 11.04.2019.
However, perusal of the said judgment granting her divorce would
show that there was a compromise and the said petition was then
converted into Hindu Marriage Petition under Section 13-B of the
Hindu Marriage Act. She had also filed application under Section
125 of Cr.P.C. before Family Court, Aurangabad against her earlier
husband and that came to be withdrawn by filing pursis on
02.04.2019 stating that the matter has been settled amicably out of
the Court. All these documents would show that respondent No.2 is
in habit of making such allegations. After dissolution of marriage on
11.04.2019, present applicant No.1 has performed marriage with
respondent No.2 on 12.12.2019. Her stay with the applicants was
very much short. She has lodged report with police on 09.09.2020
and the FIR is silent on which date she went back to her parental
home. The alleged incident at Nanded is stated to have taken place
on 27.06.2020. Within a period of 5-6 months, it is hard to believe
that any such incident would have taken place. Further, it can be
seen from the documents produced by the applicants that he had
purchased a four wheeler of Rs.17,29,000/- on 28.02.2020 with the
bank loan, therefore, there is no question of demanding amount of
Rs.4,00,000/- to respondent No.2 for purchase of car. The
allegations against the applicants are omnibus in nature. Same is
the case with the statement of the witnesses, who had for the
obvious reasons are in echo with respondent No.2. The medical
documents of respondent No.2 would show that in fact she was
suffering from gynec problem and her own aunt had initially given
treatment, but thereafter she was taken by the applicants to
Dr. Manisha Risbud, who is gynecologist and when the Sonography
was done, it was found that there is a cyst to her ovaries which was
causing difficulty in conception. She did not take further treatment
from the said Doctor and under such circumstance, she cannot
blame applicant Nos.2 and 3. It would be a futile exercise and
harassment to the applicants to face the trial when they are at no
6. Per contra, the learned APP as well as learned Advocate
appearing for respondent No.2 strongly objected the application and
submitted that since the investigation has been done and evidence
has come, this is not a fit case where the FIR as well as entire
proceedings should be quashed and set aside.
7. At the outset, it is to be noted that the marriage between
respondent No.2 and applicant No.1 had taken place on
12.12.2019. Neither in her FIR nor in the statements of her
parents they have given the date on which respondent No.2 either
left her matrimonial home or she was driven out of the house and
she started residing with her parents. Admittedly on 27.06.2020 it
appears that she was residing with her parents. She has not stated
in the FIR that for some purpose only, she had gone to her parents
house. According to her own FIR, which is then supported by in
stereotype way by her parents and other relatives that she was
treated properly for about a month, it is then vaguely stated that
she was treated like a maid servant. She has not given details of
the same. If a married lady is asked to do household work
definitely for the purpose of the family, it cannot be said that it is
like a maid servant. If she had no wish to do her household
activities, then she ought to have told it either prior to the marriage
so that the bride-groom can rethink about the marriage itself or if it
is after marriage, then such problem ought to have been sorted out
earlier. Her FIR is also silent on the point as to whether there was
maid servant at her matrimonial home for doing the work of
washing utensils, wash clothes, sweeping etc., which is generally
given to the maid servant.
8. Further, it is to be noted that in the FIR as well as the
statements of the witnesses under Section 161 of Cr.P.C. it is stated
that after one month of her marriage, the husband started
demanding amount of Rs.4,00,000/- for purchasing four wheeler.
When she had stated that her father does not have amount, it is
stated that applicant No.1 had harassed her physically and
mentally. Again the details are lacking. Mere use of the word
harassment "mentally and physically" are not sufficient to attract
ingredients of Section 498-A of IPC. Unless those acts are described
it cannot be concluded that whether those acts amounted to
harassment or subjecting a person to cruelty. It appears that as
against applicant No.1, it is the allegation about demand of amount
of Rs.4,00,000/- for purchase of four wheeler. There are no
allegations against him that he had made accusations about
defrauding him on account of the medical treatment. Even if we
take the further allegations in the FIR as it is, what respondent
Nos.2 says is that "eyk eqyxk Ogkok Eg.kwu eyk rsFkhy MkWDVjkdMs usowu
rikl.kh dsyh vlrk MkWDVjkauh eyk fnol Hkjys ulysps lkafxrys ", meaning
thereby she was got medically checked through Doctor for birth of a
son and, thereafter, the Doctor told that the gestation period is not
complete. She has not specifically stated that it was revealed to
her that she is pregnant and she is carrying pregnancy of some
days/weeks or month. Unless she would have become pregnant,
there was no question of completion of the period of pregnancy and
delivery of the child. It appears that those things have been
intentionally kept vague. Now, there are medical documents of
respondent No.2 on record and she has not whispered anything by
way of affidavit-in-reply. From those medical documents, it appears
that she was rather referred for her gynecological problem which
had showed that there is cyst in the ovaries, meaning thereby she
was not pregnant at all and there could not have been then
insistence for birth of son. In this connection respondent No.2 says
that applicant Nos.2 and 3 abused her, assaulted her by saying that
she has cheated them. Again no further details have been given as
to on what count they felt that they have been cheated. When such
omnibus allegations are made, it does not attract the ingredients of
Section 498-A of IPC. Further, as regards the incident dated
27.06.2020 is concerned, as aforesaid, the evidence collected is
silent on the point when respondent No.2 went to her parental
home and if that incident had happened on that day, then why she
had kept quiet for about two and half months to lodge the report.
The documents have been produced on record in respect of her
earlier marriage, the proceedings those have been filed by her etc.
We do not want to go into those details. The fact remains is that
there was divorce. She had filed complaints/applications against her
earlier husband and his family members, that does not mean that
she is in a habit of levelling such allegations and extracting money.
That would be the submission that is required to be proved by any
person who would make such allegations. However, when in this
case, the allegations those have been made and the collection of
evidence is not sufficient even at this prima facie stage to attract
the ingredients of offence punishable under Section 498-A of IPC,
further as regards offence under Section 323, 504, 506 read with
Section 34 of IPC is concerned, it is in fact already conferred under
Section 498-A of IPC and unless those other offences are shown
which would amount to "cruelty", offence under Section 498-A of
IPC cannot be made out and, therefore, it would be a futile exercise
to ask the applicants to face the trial. With such allegations and the
evidence, the application deserves to be allowed. Hence, the
I) Application stands allowed.
II) The FIR bearing Crime No.341 of 2020 registered with
Bhagyanagar Police Station, Dist. Nanded for the offences
punishable under Sections 498-A, 323, 504, 506 read with
Section 34 of IPC as well as the proceedings in R.C.C. No.850
of 2020 pending before the learned Additional Chief Judicial
Magistrate, Nanded, stand quashed and set aside.
III) Fees of learned Advocate, who is appointed to represent
the cause of respondent No.2, is quantified at Rs.5,000/- to
be paid by High Court Legal Services Sub Committee,
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The Bombay High Court recently observed that a married woman being asked to do household work does not mean that she is being treated like a maid servant. The court also observed that without description of alleged acts of the husband and in-laws, it cannot be determined whether they committed cruelty towards the wife.
"If a married lady is asked to do household work definitely for the purpose of the family, it cannot be said that it is like a maid servant. If she had no wish to do her household activities, then she ought to have told it either prior to the marriage so that the bride-groom can rethink about the marriage itself or if it is after marriage, then such problem ought to have been sorted out earlier", the court stated.
A division bench of Justice Vibha Kankanwadi and Justice Rajesh S. Patil of the Aurangabad bench was dealing with an application under section 482 of Cr.P.C. for quashing of FIR filed by a woman against her husband and his family members.
The applicants were booked for offences punishable under Sections 498-A (cruelty by husband and relatives, 323 (voluntarily causing hurt), 504 (intentional insult), and 506 (criminal intimidation) of the IPC.
Details of the FIR
According to the wife's FIR, she was treated properly for a month after marriage and then she was treated like a maid servant. Her husband's family demanded Rs. 4 lakhs from her father for purchasing a four-wheeler. When she said that her father can't afford it, her husband mentally and physically harassed her, it was alleged.
The husband's family took her to a doctor for the birth of a son. The doctor said that the gestation period is not complete. Thereafter her mother-in-law and sister-in-law assaulted her and accused her of defrauding them, she further said.
Her mother-in-law and sister-in-law went to her father's house and told her that she would be allowed to cohabit only if Rs 4 lakh is paid. They also assaulted her at the time, the FIR stated.
Contentions of the parties
Advocate Sagar Bhingare for the husband and his family members submitted that the wife had filed multiple complaints against her former husband and his family as well. The complaints were either withdrawn or the accused were acquitted. These cases show that the wife is habituated of making such allegations.
Bhingare further submitted that the marriage happened on December 12, 2019 and the wife lodged report on September 9, 2020. The alleged incident at her father's house happened on June 27, 2020. It is hard to believe that such an incident would have happened within 5-6 months of the marriage. Further, the husband purchased four-wheeler of over 17 lakhs on February 28, 2020. Hence, there is no question of demanding money from wife's father to purchase a car.
APP S. J. Salgare for the state as well as the advocate for the wife submitted that the investigation has been done and evidence has come hence this is not a fit case to quash the FIR.
Court's observations
The court noted that the wife's FIR vaguely states that she was treated like a maid servant after being treated properly for a month. The court further said that she has not given the details of the alleged mental and physical harassment faced by her.
"Mere use of the word harassment "mentally and physically" are not sufficient to attract ingredients of Section 498-A of IPC", the court stated. The court added that it cannot be determined whether the acts of the accused constitute cruelty unless those acts are described.
The court further noted that the wife did not specifically state in her FIR that she came to know that she is pregnant. Unless she was pregnant, there is no question of completion of the pregnancy and delivery of the child. The court said that these things seem to be intentionally kept vague. No details of the assault by the husband saying that she cheated them have been given in the FIR, the court noted. When such omnibus allegations are made, it does not attract the ingredients of Section 498-A of IPC, the court held.
The court further observed that the evidence does not show why the wife went to her parental home and why she kept quiet for more than two months to lodge the report if the alleged assault by her mother-in-law and sister-in-law happened at her father's house.
The court said that just because she had filed complaints against the earlier husband and his family, that does not mean that she is habituated of levelling such allegations and extracting money. However, in this case, the allegations of the wife against her husband and in-laws and the evidence is not sufficient prima facie to attract section 498A of IPC, the court held.
"The allegations those have been made and the collection of evidence is not sufficient even at this prima facie stage to attract the ingredients of offence punishable under Section 498-A of IPC, further as regards offence under Section 323, 504, 506 read with Section 34 of IPC is concerned, it is in fact already conferred under Section 498-A of IPC and unless those other offences are shown which would amount to "cruelty", offence under Section 498-A of IPC cannot be made out and, therefore, it would be a futile exercise to ask the applicants to face the trial."
With the above observations, the court set aside the FIR and the proceedings pending before Additional Chief Judicial Magistrate Nanded against the husband and his family members.
Case no. – Criminal Application No. 40 of 2021
Case title – Sarang Diwakar Amle & Ors. v. State of Maharashtra & Anr.
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Seeking to quash the proceedings in C.C.No.62 of 2016 on the file of
the Special Court constituted u/s.43(1) of the Prevention of Money
Laundering Act, 2002 [Principal Sessions Judge], Chennai, the present
petition has been filed.
2. At the outset, it may be necessary to state that in a prosecution under
the Prevention of Money Laundering Act, 2002 [hereinafter referred to as the
‘PMLA’], there will invariably be two sets of accused viz., one in the
predicate offence and other in the prosecution launched by the Enforcement
Directorate. Therefore, in order to avoid confusion, we are referring to the
rank of the accused as set out in the impugned complaint in C.C.No.62 of
2016 that has been filed by the Enforcement Directorate.
Criminal Original Petition No.19880 of 2022
3. The minimum facts that are required for deciding this quash petition
3.1. One G.Srinivasan [A1] and R.Manoharan [A2] entered into a
criminal conspiracy to cheat M/s.Global Trade Finance Limited [hereinafter
referred to as "GTFL"], a subsidiary of Global Trust Bank, pursuant to which,
R.Manoharan [A2], in collusion with S.Arivarasu [A5], Manager of GTFL,
applied for a loan with fake documents. S.Arivarasu [A5] sanctioned a loan of
Rs.15 crores on 16.05.2008 to a shell company by name M/s.Bhagavthi
Textile Mills [in short "BTM"] purportedly owned by R.Manoharan [A2],
which was actually siphoned off by G.Srinivasan [A1].
3.2. Out of the said sum of Rs.15 crores so siphoned off, G.Srinivasan
[A1] used Rs.1.07 crores to purchase 166 acres of land in Pudukottai Village
in the names of P.Venkatachalapathy [A4], P.Rajendran [A6] and K.Vignesh
[A7] from K.Gunasekaran, R.Sivakumar, Chinnakkannu and G.Selvarani
through various documents. The details of the sale deeds under which the
lands were purchased with the money provided by G.Srinivasan [A1] to the
Criminal Original Petition No.19880 of 2022
buyers viz., P.Venkatachalapathy [A4], P.Rajendran [A6] and K.Vignesh [A7]
have been set out in paragraph No.6.3 of the impugned complaint. The said
P.Venkatachalapathy [A4], P.Rajendran [A6] and K.Vignesh [A7] gave a
Power of Attorney in September 2009 to one R.Ayyappan in respect of the
lands that were purchased by them with the funds provided by G.Srinivasan
[A1]. K.Gunaseelan [A8] had purchased lands measuring 166 acres from
P.Venkatachalapathy [A4], P.Rajendran [A6] and K.Vignesh [A7] through
their power agent R.Ayyappan in February 2010. Thereafter, K.Gunaseelan
[A8] sold those lands to S.Palanichamy [A9], C.Chellamuthu [A10],
K.Kalimuthu [A11], V.Kuppusamy [A12], R.Natarajan [A13] and
V.Nattuthurai [A14], as could be seen from the chart given in paragraph
No.6.6 of the impugned complaint.
3.3. Reverting to the loan of Rs.15 crores that was obtained by BTM,
as stated supra, it was found that G.Srinivasan [A1] and R.Manoharan [A2]
had created fake documents in league with S.Arivarasu [A5], Manager of
GTFL for obtaining loan.
Criminal Original Petition No.19880 of 2022
3.4. While this being so, GTFL was merged with State Bank of India
and during reconciliation of the accounts, it was found that R.Manoharan[A2]
obtained the loan by producing fraudulent documents.
3.5. Therefore, on a complaint given by the State Bank of India, the
CBI registered a case in Crime No.RC-9(E)/2010 on 07.10.2010 and after
completing the investigation, filed a final report in C.C.No.6 of 2011 in the
Special Court for CBI cases, Coimbatore, for the offences u/s.120-B r/w 420,
467 and 471 IPC and Section 13 of the Prevention of Corruption Act against
G.Srinivasan [A1] and others, in which P.Rajendran [A6] herein is not an
accused. Since the CBI case disclosed the commission of a "scheduled
offence" under the PMLA, the Enforcement Directorate registered a case in
ECIR No.06/CEZO/PMLA/2011 and after completing the investigation, filed
a complaint in C.C.No.62 of 2016 in the Special Court for Prevention of
Money Laundering Act cases (Principal Sessions Judge, Chennai) for the
offence u/s.3 r/w 4 of the PMLA against 15 persons including
S.Arivarasu [A5], P.Rajendran [A6] and K.Vignesh [A7].
Criminal Original Petition No.19880 of 2022
3.6. This Court, in Crl.O.P.Nos.2821 and 5638 of 2017, has, by a
detailed order dated 21.03.2022, quashed the PMLA prosecution in
C.C.No.62 of 2016 against K.Gunaseelan [A8], S.Palanichamy[A9],
[A13], V.Nattuthurai [A14] and S.Kuppusamy [A15] on the short ground that
these persons were innocent purchasers, in that, they had purchased the said
property from P.Venkatachalapathy [A4], P.Rajendran [A6] and K.Vignesh
4. While so, P.Rajendran [A6] has filed the present quash petition to
quash the prosecution against him in C.C.No.62 of 2016.
5. Heard Mr.Sharath Chandran, learned counsel for the petitioner and
Mr.N.Ramesh, learned Special Public Prosecutor [ED] for the respondent.
6. The crux of the allegation against P.Rajendran [A6] is that,
G.Srinivasan [A1] and R.Manoharan [A2] had committed the criminal
Criminal Original Petition No.19880 of 2022
activity of cheating GTFL and had obtained a loan of Rs.15 crores from
GTFL, out of which, G.Srinivasan [A1] had purchased a property by a sale
deed dated 09.09.2009 in the name of P.Rajendran [A6], which, P.Rajendran
[A6] had subsequently sold to the accused, against whom, this Court has
quashed the prosecution, as stated above.
7. At this juncture, it may be relevant to extract the following
paragraphs from the impugned complaint:
"6.3. Inasmuch as Shri G.Srinivasan during the inquiry has
acceded that out of above funds he had purchased immovable
property admeasuing about 166 acres in Pudukottai Village from
S/Shri K.Gunasekaran, R.Sivakumar, Chinnakkannu and
Smt.G.Selvarani, in the names of S/Shri Vignesh,
P.Venkatachalapathy and Shri P.Rajendran, who were all
associated/known to him, for a declared amount of Rs.1.07 Crores,
inquiries were made with the said name lenders. Accordingly, Shri
P.Rajendran in his statement dated 15.02.2012 (Annexure-XIII)
under Section 50(2) & (3) of the PMLA, given before the Assitant
Director (PMLA), Directorate of Enforcement, Chennai, in response
to the enquiry on the details of the 5 acres and 76 cents of land
registered in his name, vide Document No.1559/2009 of SRO,
Chathirapatti had inter-alia stated that his younger brother, Shri
Venkatachalapathy and Shri G.Srinivasan of Udumalpet were close
friends; that Shri G.Srinivasan was looking after the business of the
firm, M/s.Sri Pamba Spinning Mills, which was managed by his
father; that his younger brother, Shri Venkatachalapathy joined with
the above said Shri G.Srinivasan during the year 2005 and was
Criminal Original Petition No.19880 of 2022
looking after the business of the aforesaid M/s.Sri Pamba Spinning
Mills; that later, in the year 2009, he came to understand that his
younger brother, Shri Venkatachalapathy and Shri G.Srinivasan were
in some problem; that his brother, Shri Venkatachalapathy, Shri
G.Srinivasan and one Shri Selvakumar, who was working with his
younger brother, were all arrested by the District Crime Branch,
Coimbatore, during July 2009 and about a month later they were
released on bail; that during September month the same year, Shri
G.Srinivasan told him that for about 5.76 acres land in his name he
had appointed one Shri.R.Sivakumar, who was working under him as
its power holder and if the land was in the name of the said
Sivakumar it would not be safe and hence he (Srinivasan) wished to
write the same in his name; that he agreed for the same and gave his
consent to get the above said 5.76 acres land transferred in his name
as arranged by Shri G.Srinivasan; that the land under Survey No.103,
having Patta No.395, totally constituted 17 acres and 28 cents and in
that 1/3 portion, i.e., 5 acres and 76 cents was transferred in his
name and registered as Document No.1559/2009 of SRO,
Chatthirapatti with a specified consideration of Rs.3,64,000/- as
arranged by Shri G.Srinivasan, but he neither received nor paid any
money; that later, in the last week of September 2009, the said Shri
G.Srinivasan told him to give power for the above said land of 5
acres and 76 cents land held in his name to one Shri.R.Ayyappan;
that Shri G.Srinivasan prepared a Power Document and obtained his
signature on it, which was registered in the SRO, Kaniyur as
Document No.184/2009, that as was arranged by Shri G.Srinivasan,
he gave power to the aforesaid Shri R.Ayyappan, S/o.Ramdas, a
resident of No.57-B, Vinayaka Apartment, Padmavathi Nagar Main
Road, Virugambakkam, Chennai - 92; that even for this he neither
received nor gave any money either from / to the above said Shri
G.Srinivasan or any other person, as the aforesaid land was not his
and belonged only to Shri G.Srinivasan; that further, as requested by
Shri G.Srinivasan he had been to Sub-Registrar's Office and signed
as a witness in another document relating to power given by one Shri
Vignesh to the aforesaid Shri Ayyappan for another land and that he
did not have any connection or dealings with the above said Shri
G.Srinivasan except the above.
Criminal Original Petition No.19880 of 2022
12.8. S/Shri P.Rajendran and K.Vignesh the other associates
of Shri G.Srinivasan connived with him in the scheme fraudulent
transactions and knowingly facilitated the investments of Shri
G.Srinivasan in the immovable properties by consciously lending
their names and acting as his benamis thereby camouflaged the said
funds from its actual source. Thus, S/Shri P.Rajendran and
K.Vignesh had actively facilitated utilization of a part of the
aforesaid proceeds of crime, as defined under Section 2(1)(u) of
PMLA towards investments in the immovable properties aggregating
to Rs.53,16,200/- Shri G.Srinivasan, besides acquiring inherent
pecuniary benefits for themselves.
13.6. It is humbly submitted that Shri P.Rajendran who was charged
of having committed the scheduled offences, furthermore having lent
his name for the purchase of the immovable properties and having
actively connived with Shri G.Srinivasan in camouflaging the
aforesaid immovable properties in which a part of the said proceeds
of crime aggregating to Rs.53,16,200/- had been invested by Shri
G.Srinivasan was actually involved in the process or activity
connected to "proceeds of crime" defined under Section 2(1)(u) of
PMLA and has thereby committed the offence of Money Laundering
as defined under Section 2(p) read with Section 3 of the PMLA,
which is punishable under Section 4 of the PMLA."
8. Mr.Sharath Chandran, learned counsel for the petitioner, submitted
that since P.Rajendran [A6] is not an accused in the CBI case in C.C.No.6 of
2011, his prosecution by the Enforcement Directorate in C.C.No.62 of 2016
is illegal in the light of the recent judgment of the Supreme Court in the case
Criminal Original Petition No.19880 of 2022
of Vijay Madanlal Choudhary and others v. Union of India and others1. In
support of this contention, he placed strong reliance on the following
paragraphs in the said judgment:
"253. Tersely put, it is only such property which is derived or
obtained, directly or indirectly, as a result of criminal activity
relating to a scheduled offence can be regarded as proceeds of crime.
The authorities under the 2002 Act cannot resort to action against
any person for money-laundering on an assumption that the property
recovered by them must be proceeds of crime and that a scheduled
offence has been committed, unless the same is registered with the
jurisdictional police or pending inquiry by way of complaint before
the competent forum. For, the expression “derived or obtained” is
indicative of criminal activity relating to a scheduled offence already
accomplished. Similarly, in the event the person named in the
criminal activity relating to a scheduled offence is finally absolved
by a Court of competent jurisdiction owing to an order of discharge,
acquittal or because of quashing of the criminal case (scheduled
offence) against him/her, there can be no action for money-
laundering against such a person or person claiming through him in
relation to the property linked to the stated scheduled offence. This
interpretation alone can be countenanced on the basis of the
provisions of the 2002 Act, in particular Section 2(1)(u) read with
Section 3. Taking any other view would be rewriting of these
provisions and disregarding the express language of definition clause
“proceeds of crime”, as it obtains as of now."
467 (d) The offence under Section 3 of the 2002 Act is
dependent on illegal gain of property as a result of criminal activity
relating to a scheduled offence. It is concerning the process or
activity connected with such property, which constitutes the offence
of money-laundering. The Authorities under the 2002 Act cannot
prosecute any person on notional basis or on the assumption that a
Criminal Original Petition No.19880 of 2022
scheduled offence has been committed, unless it is so registered with
the jurisdictional police and/or pending enquiry/trial including by
way of criminal complaint before the competent forum. If the person
is finally discharged/acquitted of the scheduled offence or the
criminal case against him is quashed by the Court of competent
jurisdiction, there can be no offence of money-laundering against
him or any one claiming such property being the property linked to
stated scheduled offence through him."
9. Mr.Sharath Chandran, learned counsel, contended that when the
accused in the predicate offence is discharged, acquitted or the proceedings
against him are quashed, the prosecution under the PMLA cannot be
maintained, which means that if a person is not prosecuted in the predicate
offence, his position being far better than the former, cannot be prosecuted
under the PMLA.
10. At the first blush, this argument did appear convincing. However,
the fallacy in the aforesaid submission was highlighted by Mr.N.Ramesh,
learned Special Public Prosecutor [ED], who brought to our notice that
paragraph Nos.253 and 467(d) of the judgment of the Supreme Court in Vijay
Madanlal's case [supra] deal with only the cases of persons named as
Criminal Original Petition No.19880 of 2022
accused in the predicate offence against whom the prosecution in the
predicate offence is quashed or he is discharged/acquitted. This benefit
cannot be extended to a person, who has not been arrayed as an accused in
the predicate offence because the offence under the PMLA is a stand alone
offence and is different and distinct from the predicate offence.
11. Learned Special Public Prosecutor submitted that for generating
"proceeds of crime", a "scheduled offence" must have been committed, after
the commission of the scheduled offence and generation of proceeds of crime,
different persons can join the main accused either as abettors or conspirators
for committing the offence of money laundering by helping him in laundering
the proceeds of crime; such persons may not be involved in the original
criminal activity that had resulted in the generation of "proceeds of crime",
therefore, just because they were not prosecuted for the predicate offence,
their prosecution for money laundering cannot be said to be illegal. There
appears to be much force in the aforesaid submission, especially, in the light
of paragraph 271 of the judgment in Vijay Madanlal's case [supra], which is
Criminal Original Petition No.19880 of 2022
"271. As mentioned earlier, the rudimentary understanding of
‘money-laundering’ is that there are three generally accepted stages
to money-laundering, they are:
(a) Placement : which is to move the funds from direct association of
the crime.
(b) Layering : which is disguising the trail to foil pursuit.
(c) Integration : which is making the money available to the criminal
from what seem to be legitimate sources."
12. That apart, paragraph No.467(d) of the Vijay Madanlal's case
[supra] only speaks about the discharge/ acquittal or quashment of
proceedings of the accused in the predicate offence and the consequences that
will follow for him in the PMLA prosecution. In that context, the Supreme
Court has held that such an accused cannot be prosecuted under the PMLA if
the case against him in the predicate offence has been quashed or he has been
discharged/acquitted. To be noted, a case is only an authority for what it
decides, as observed by Lord Halsbury in Quinn v. Leathem2, as follows:
"... that every judgment must be read as applicable to the
particular facts proved or assumed to be proved, since the generality
of the expressions which may be found there are not intended to be
expositions of the whole law, but are governed and qualified by the
Criminal Original Petition No.19880 of 2022
particular facts of the case in which such expressions are to be
found. The other is that a case is only an authority for what it
actually decides."
13. In Rajendra Singh v. State of U.P. & others3, the Supreme Court
has approvingly cited the above passage.
14. We cannot enlarge the scope of paragraph 467(d) of Vijay
Madanlal's case [supra] and read into it things that have not been said, in the
name of logical reasoning. Law is not always logic.
15. On facts, we find that Rajendran [A6] had voluntarily lent his name
for the purchase of the property under the sale deed dated 09.09.2009 with
the tainted money that was generated by G.Srinivasan [A1] and R.Manoharan
[A2] by committing a scheduled offence. Under Section 24 of the PMLA,
there is a statutory presumption which can be discharged only during trial.
In the result, this Criminal Original Petition is devoid of merits and the
same is accordingly dismissed. The trial Court shall proceed with the trial of
Criminal Original Petition No.19880 of 2022
the case without in any manner influenced by what is stated above as the
above observations are only for the limited purpose of disposing of this quash
petition.
Criminal Original Petition No.19880 of 2022
Criminal Original Petition No.19880 of 2022
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The Madras High Court has made it clear that Supreme Court's decision in Vijay Madanlal Choudhary and others v. Union of India and others does not preclude the Enforcement Directorate from prosecuting a person for offence of money laundering under PMLA, merely because such person was not prosecuted for the predicate offence.
The bench of Justices PN Prakash and Teeka Raman found force in the submission that while a person may not be involved in the original criminal activity that had resulted in the generation of "proceeds of crime", such person may later help the main accused in laundering the proceeds of crime.
The Court was hearing a quashing petition moved by a man accused of voluntarily lending his name for purchase of property using tainted money. Though he was not prosecuted by the CBI in the corruption FIR, he was booked by the ED under Prevention of Money Laundering Act (PMLA).
It was alleged that a group of men had entered into a criminal conspiracy to cheat M/s.Global Trade Finance Limited (GTFL) and received a loan of Rs. 15 crore from the company using fake documents with the help of its Manager. Using this siphoned off money, 166 acres of land was purchased in the name of different persons including the petitioner. This land was later sold to genuine buyers.
The details of fraudulent transaction was noticed when GTFL was merged with SBI. On a complaint given by SBI, the CBI registered a case for offences u/s.120-B r/w 420, 467 and 471 IPC and Section 13 of the Prevention of Corruption Act. The petitioner was not an accused in these proceedings. Later, the Enforcement Directorate also registered a case for the offence u/s.3 r/w 4 of the PML Act in which the petitioner was named as an accused.
Relying upon the recent decision of Supreme Court in Vijay Madanlal Choudhary and others v. Union of India and others, the petitioner contended that since he was not an accused in the proceedings by the CBI, his prosecution by the Enforcement Directorate was illegal. Quoting the Apex Court decision, the petitioners submitted that when a person was acquitted or discharged in the predicate offence, his prosecution under PMLA cannot be maintained.
However, counsel for the Enforcement Directorate informed the court that the above observation was made when the person was named as an accused in predicate offense. This benefit was not applicable to a person who was not made an accused in the predicate offense.
The counsel submitted that even after commission of the scheduled offence and generation of proceeds of crime, different persons can join the main accused either as abettors or conspirators for committing the offence of money laundering by helping him in laundering the proceeds of crime. Such persons may not be involved in the original criminal activity that had resulted in the generation of "proceeds of crime", and thus may not be convicted in the predicate offense. But at the same time their prosecution under the PMLA cannot be said to be illegal as the offence under PMLA is a standalone offence and is different and distinct from the predicate offense.
The court thus noted that the observation in Vijay Madanlal Choudhary could not be applied in the present case as the petitioner was not an accused in the predicate offence.
We cannot enlarge the scope of paragraph 467(d) of Vijay Madanlal's case [supra] and read into it things that have not been said, in the name of logical reasoning. Law is not always logic, the court observed.
"On facts, we find that Rajendran [A6] had voluntarily lent his name for the purchase of the property under the sale deed dated 09.09.2009 with the tainted money that was generated by G.Srinivasan [A1] and R. Manoharan [A2] by committing a scheduled offence. Under Section 24 of the PMLA, there is a statutory presumption which can be discharged only during trial," Court added.
It thus dismissed the petition holding that it was devoid of any merits.
Case Title: P Rajendran v. The Assistant Director, Directorate of Enforcement
Case No: Criminal Original Petition No.19880 of 2022
Counsel for the Petitioner: Mr.Sharath Chandran for Mr.S.Ramesh
Counsel for the Respondent: Mr.N.Ramesh Special Public Prosecutor [ED]
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Correctness or otherwise of the judgment and order dated
06.09.2021, passed in Criminal Revision No. 17/2019, by the learned
Additional District Judge, Bilasipara by which the learned Additional
District Judge, Bilasipara has affirmed the judgment and order dated
04.10.2019 passed in Misc. Case No. 244/2017 by the learned Sub-
Divisional Judicial Magistrate(M), Bilasipara under Section 125 of the Code
of Criminal Procedure, 1973 granting maintenance to the respondent,
namely, Smti Bhanjana Kalita, is put to challenge in this petition under
Section 482 of the Cr.P.C. by the petitioner, namely, Shri Tarun Chandra
2. It is to be noted here that vide impugned judgment and order dated
04.10.2019 in Misc. Case No. 244/2017, the learned Sub-Divisional Judicial
Magistrate(M), Bilasipara has directed the petitioner to pay a sum of Rs.
5000/- (Rupees five thousand) per month to the respondent under Section
125 of the Cr.P.C.
3. The factual background leading to filing of the present petition is
“The respondent, namely, Smti Bhanjana Kalita is the wife of the
petitioner, namely, Shri Tarun Chandra Das. Their marriage was
solemnised on 28.04.2017 as per Hindu rights and rituals. After the
marriage, the petitioner took the respondent to the house of his
sister, namely, Smti Latika Das and stayed there for a month and
thereafter, they shifted to a rented house at Bilasipara and lived
there as husband and wife. After two months of living together as
husband and wife, the petitioner took the respondent to his own
house at Arearjhar. After reaching the house of the petitioner, the
respondent got surprised to see the first wife of the petitioner.
Before marriage, the petitioner told the respondent that he has
already divorced his first wife and shown her some fake documents.
Then being left with no option, the respondent tried to adjust herself
with the petitioner and started leading a conjugal life. Thereafter,
the petitioner started picking up quarrel with the respondent without
any rhyme or reason and started torturing her both physically and
mentally and also demanded money on the advice of other persons.
Then on 06.11.2017, at about 10.45 p.m., the petitioner tried to kill
the respondent by wrapping her neck by means of one gamosa, but
somehow she managed to escape and reported the matter to her
family members. But at the intervention of her family members, she
again started to live with the petitioner. Then on 11.11.2017, the
petitioner became violent and assaulted her badly and drove her out
of the matrimonial house. Though the family members of the
respondent tried to settle the matter amicably, yet the same failed to
yield any result. The petitioner is a Government employee under the
Agriculture Department and posted at Bilasipara Agriculture Office
and he is a person of sound health and receives salary of Rs.
40,000/- and he has also landed property. And on the other hand
respondent is unable to maintain herself and despite having
sufficient means, the petitioner has not been maintaining the
respondent. Then being left with no other option, she filed one
petition before the learned Sub-Divisional Judicial Magistrate (M),
Bilasipara under Section 125 Cr.P.C. Thereafter, hearing both the
parties, the learned Sub-Divisional Judicial Magistrate(M), Bilasipara
vide order dated 04.10.2019, directed the petitioner to pay
maintenance @ Rs. 5000/- (five thousand). Then being aggrieved by
the aforesaid judgment and order of the learned Sub-Divisional
Judicial Magistrate (M), Bilasipara dated 04.10.2019; the petitioner
preferred one revision petition before the learned Additional
Sessions Judge, Bilasipara, being Crl. Rev. No. 17/2019. Thereafter,
vide judgment and order dated 06.09.2021, the learned Additional
Sessions Judge, Bilasipara has affirmed the judgment and order of
the learned Sub-Divisional Judicial Magistrate(M), Bilasipara, dated
04.10.2019 passed in Misc. Case No. 244/2017.
4. Being highly aggrieved, the petitioner preferred this petition on the
(i). The learned Courts below failed to appreciate the fact that
expression ‘wife’ under Section 125 of the Cr.P.C. should be
interpreted to mean only a legally wedded wife. The word
‘wife’ is not defined in the Code except indicating in the
explanation to the Section 125 Cr.P.C., its inclusive character
so as to cover a divorcee. A woman cannot be a divorcee
unless there was a marriage solemnized between any two
Hindus after following the conditions mentioned in Section 5
of the Hindu Marriage Act, 1955. But the learned Courts
below failed to take into consideration the fact and arrive at a
conclusion that the respondent herein is a legally wedded
wife of the petitioner for her entitlement to maintenance as
per Section 125 of the Cr.P.C.
(ii). That, the marriage of a woman in accordance with Hindu
rights with a man having a living spouse is a complete nullity
in the eye of law and therefore, she is not entitled to the
benefit of Section 125 Cr.P.C.
(iii). That, as per Section 5 of the Hindu Marriage Act, 1955, a
marriage with a person having a living spouse is not
permissible and the same is void and not voidable.
(iv). That, Section 11 of the Hindu Marriage Act, 1955, wherefrom
it is clear as to when a marriage can be declared as null and
void. As per Section 11 a marriage can be declared as nullity
if it contravenes any of the conditions specified in Clause –(i),
(iv), (v) of Section 5 of the Hindu Marriage Act, 1955.
(v). That, to be entitled for maintenance under Section 125 of the
Cr.P.C., the burden is always on the person who claims herself
to be the legally married wife of the person from whom she
claims maintenance. And in the case in hand, the respondent
has miserably failed to prove that she is legally married with
the petitioner and the same fulfil the condition for a Hindu
marriage as laid down in Section 5 of the Hindu Marriage Act,
(vi). That cross-examination of the respondent (PW-1) shows that
she knows the petitioner since the childhood as they belong
to the same village and she also knew about the first
marriage of the petitioner. Even then, the learned Courts
below have arrived at a conclusion that the respondent is the
legally married wife of the petitioner.
(vii). That, the petitioner and the respondent entered into a
marriage by way of registration under Notary Public and the
same has not been considered by the learned Courts below.
(viii). That there is no scope for artificial definition of ‘wife’ to
include a woman not lawfully married. Therefore, it is
contended to allow the petition by setting aside the impugned
judgments and orders.
5. It is to be noted here that the respondent here in this case has not
submitted her affidavit-in-opposition.
6. I have heard Mr. S. Biswas, learned counsel for the petitioner. Also
heard Mr. M. Hussain, learned counsel for the respondent.
7. Mr. Biswas, learned counsel for the petitioner submits that the
learned Courts below have committed grave error in interpreting the word
‘wife’ in Section 125 of the Cr.P.C, and wrongly granted maintenance in
favour of the respondent without there being any valid marriage between
the parties. It is further submitted that the respondent and the petitioner
belongs to the same village and they knows each other since childhood
and as such she married with the petitioner knowing well about
subsistence of his first marriage, and as such, the impugned judgments
and orders suffer from gross illegality and impropriety and therefore, it is
contended to set them aside by allowing the petition. Mr. Biswas has
referred one Case Law Savitaben Somanhai Bhatiya vs. State of
Gujarat and Ors. reported in (2005) 3 SCC 636, to make good of his
9. On the other hand, Mr. M. Hussain, learned counsel for the
respondent submits that no irregularity or illegality is committed by the
learned Courts below in granting maintenance to the respondent. It is
submitted that the petitioner got married with the respondent by
suppressing his first marriage and now he cannot take the benefit of
subsistence of his first marriage with his former wife. It is further
submitted that the petitioner misrepresented the respondent that he has
divorced his first wife and shown some documents and as such, the
question of non-fulfilment of Section 5(1) of the Hindu Marriage Act does
not arise. Mr. Hussain, learned counsel also referred one case law,
Badshah vs Urmila Badshah Godse & Anr. reported in (2014) 1
SCC 188, to submit that the petition has been filed under Section 125 of
the Cr.P.C. and that the respondent should be treated as legally wedded
wife and that he duped the respondent by suppressing her earlier
marriage and therefore, the petitioner cannot deny maintenance to the
respondent and therefore, it is contended to dismiss the petition by
affirming the judgments of the learned Court below.
10. Having heard the submission of learned counsels of both sides, I
have gone through the petition and the documents placed on record and
the impugned judgments of the learned Courts below and also, the case
law referred hereinabove by the learned counsels of both sides. Also I
have perused the evidence recorded by the learned Court below, so as to
satisfy myself as to the correctness, legality and propriety of the finding of
the learned Court below, in view of the observation of Hon’ble Supreme
Court in State Of Maharashtra vs. Jagmohan Singh Kuldip Singh
Anand reported in AIR 2004 SC 4412, where it has been held that
Section 401 Cr.P.C. has enabled the revisional court to exercise all powers
to appellate Court (Section 386), if necessary, in aid of power of
superintendence or supervision for the purpose of satisfying itself or
himself as to the correctness, legality or propriety of any finding, sentence
or order, passed as to the regularity of any proceeding.
11. In the case in hand, the petitioner, in his written statement has
admitted having married the respondent in no uncertain terms and also
admitted living with her as husband and wife. At first in the house of his
sister and thereafter, at the rented house in Bilasipara for about 4 (four)
months and upon the aforesaid admission and also the evidence adduced
by the respondent, the learned Court below held that the respondent is
the married wife of the petitioner and they lived together as husband and
wife and thereby, fulfilled the requirement of Section 125 of the Cr.P.C.
Though the learned counsel for the petitioner submits that as per Section
11 of the Hindu Marriage Act, the marriage between the petitioner and the
respondent is a nullity as it contravenes the provision of Clause –(i), (iv),
(v) of Section 5 of the Hindu Marriage Act, 1955 yet, the said submission
left this Court unimpressed and the ratio laid down by the Hon’ble
Supreme Court in the case of Savitaben Somanhai Bhatiya (supra)
would not come into his aid. The ratio in Savitaben Somanhai
Bhatiya’s (supra) case would apply only in those circumstances where a
woman married a man with full knowledge of the first subsisting marriage.
In such cases, she should know that second marriage with such a person
is impermissible and there is an embargo under the Hindu Marriage
Act and therefore she has to suffer the consequences thereof. Though the
learned counsel for the petitioner has submitted that the respondent and
the petitioner belongs to the same village and they knows each other
since childhood and as such she married with the petitioner knowing well
about subsistence of his first marriage, yet, such submission left this court
unimpressed as there is material on record to show that the petitioner had
married the respondent by saying and showing fake documents that he
had divorced his 1st wife.
12. In the case of Veerappa vs. Michael reported in AIR 1963 SC
933, Hon’ble Supreme Court has held that once a marriage in fact is
proved to have taken place, the presumption arising there from in favour
of a marriage in law would operate with all its amplitude and plenitude to
entitle the wife of such a marriage to entertain an application under
Section 125 of the Cr.P.C., unless, on the materials on record, the marriage
in question appears to be stamped on its face with indisputable illegality
and the invalidity thereof stares at the face, as it did in the case of
Yamunabai v. Anantrao (1983 Crl. LJ 259).
13. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr.
reported in AIR 1999 SC 1348 and in Chanmunia Vs. Virendra
Kumar Singh Kushwaha & Another, : (2011) 1 SCC 141, it has
“the parties had been living together for a long time and on
that basis question arose as to whether there would be a
presumption of marriage between the two because of the
said reason, thus, giving rise to claim of maintenance
under Section 125,Cr.P.C. by interpreting the term “wife”
widely. The Court has impressed that if man and woman
have been living together for a long time even without a
valid marriage, as in that case, term of valid marriage
entitling such a woman to maintenance should be drawn
and a woman in such a case should be entitled to maintain
application under Section 125,Cr.P.C.”
14. In the case of Suo Malan vs. Balasahed Bhimrao Guwade and
“..proceedings under S. 125 of the Cr.P.C. are in the nature
of the summary proceedings. By providing a simple and
speedy remedy the legislature has provided for a limited
relief for the neglected wives, children and parents. S. 125
of the Cr.P.C. is not intended to provide for a full and final
determination of the status and personal rights of the
parties. It is true that a woman whose marriage is void
cannot get the status of a legally wedded wife and is not
entitled to maintenance under this Section. But it is
important to bear in mind that in such proceedings all that
the wife has to prove is the performance of certain marriage
ceremonies and it is immaterial whether the same satisfy all
the requirements of a valid marriage. The party who
challenges the validity of the marriage has to establish it in
a competent civil court. Therefore, it was for the first
respondent hue to have gone to a competent civil court and
get his marriage annulled. Not having done that, it is not for
the courts below to go to his rescue and declare that the
marriage between him and the petitioner was not legal.
That was not the function of the courts dealing with an
application under S. 125 of the Cr.P.C. In the absence of a
declaration by competent civil court about the legality or
otherwise of the marriage between the petitioner and the
first respondent, the lower courts should have presumed
that the said marriage was legal..”
15. Again in the case of Badshah vs. Urmila Badshah Godse & Anr.
reported in (2014) 1 SCC 188, Hon’ble Supreme Court in paragraph-
“We are dealing with a situation where the marriage
between the parties has been proved. However, the
petitioner was already married. But he duped the
respondent by suppressing the factum of alleged first
marriage. On these facts, in our opinion, he cannot be
permitted to deny the benefit of maintenance to the
respondent, taking advantage of his own wrong.”
16. Thus, in view of the above case laws of Hon’ble Supreme Court in
Virappa vs. Michael (supra) Dwarika Prasad Satpathy v. Bidyut
Prava Dixit and Anr.(supra), Chanmunia Vs. Virendra Kumar
Singh Kushwaha & Another(supra) Badshah vs. Urmila Badshah
Godse & Anr. (supra), there is no escape from the proposition that once
marriage in fact proved to have been taken place, the presumption arising
there from in favour of marriage in law would operate with all its
amplitude and plenitude to entitled the wife to such a marriage to
entertain an application under section 125 Cr.P.C., unless on the materials
on record the marriage in question appears to be stamped on its face with
indisputable illegality and the invalidity thereof stares at the face. Once
such presumption of a lawful marriage commenced to operate in favour of
a marriage which has taken place in fact, such a presumption alone would
be good enough to entitle the wife to maintain an application for
maintenance under section 125 Cr.P.C. unless on the material on record,
the presumption stands dislodged and overthrown.
17. Here in this case, solemnisation of marriage between both the parties
and subsequent living together as husband and wife for about six months
stands established and the said facts are admitted by the petitioner also.
And as such presumption arising there from in favour of the marriage in
law will operate with all its amplitude and plenitude to entitle the wife to
such a marriage to entertain an application under section 125 Cr.P.C.
There is nothing on the record to dislodge or over throw such a
presumption. And as such the learned courts below has rightly arrived at a
conclusion that the respondent/1st party is the wife of the petitioner/2 nd
party. In the given facts and circumstances, this court is of the considered
opinion that at least for the purpose of claiming maintenance under
section 125 Cr.P.C. the respondent/1st party is entitled to claim to be the
wife of the petitioner. Mention to be made here that the petitioner has not
challenged the validity of his marriage with the respondent/1 st party in
any court of law.
18. The learned court below has determined the quantum of maintenance
@Rs. 5000/(Rupees five thousand) per month. Admittedly, the petitioner
is serving in Agriculture Department, at Bilashipara. His monthly salary is
about Rs. 40000/, the factum of which is not seriously disputed by
producing any documents like salary certificate etc. The respondent is a
house wife having no source of income of her own. Though the learned
counsel for the petitioner has submitted that she has been serving in a
school, yet no evidence to that effect is lead by him before the learned
court below. Nor such a fact is brought on record by filing any affidavit
before this court. In view of above the quantum of maintenance so
decided by the learned court below appears to be justified and it requires
no interference of this court.
“The obligation to maintain wife and minor children, who are
unable to maintain themselves, flows from the right of the man
to marry and to setup a family as recognised in Article-16 of the
Universal Declaration of Human Right, which also provides that
ä family as fundamental group unit of the society, is entitled to
protection by the society and the state. This is fulfilled by
section 125 Cr.P.C. considering that wife and children are not
left beggared and destitute by providing them with a speedy
and effective remedy.”
20. Section 125 Cr.P.C. is a measure of social justice, enacted to protect
the vulnerable section of the society like women, children and infirm
parents and it within the scope of Article -15(3) and 39 of the Constitution
of India. The object of this section is not to punish for the past, but to
prevent the vulnerable section of the society, who are unable to maintain
themselves, so that they are left beggared and destitute on the scrap
heap of the society, and thereby driven to a life of vagrancy, immorality
and crime for their sustenance, by compelling those who are capable to
support to perform their moral obligation.
21. While the impugned judgments of the learned courts below are
examined in the light of the propositions of law, discussed herein above, I
find that the conclusion so arrived at by the learned courts below are not
suffering from any illegality or impropriety requiring this court to interfere
with the same in exercising its inherent jurisdiction under section 482
Cr.P.C. In the result I find no merit in this petition and accordingly the
same stands dismissed. The parties have to bear their own cost.
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The Gauhati High Court has held that a man cannot escape his liability under Section 125, Cr.P.C. to provide maintenance to his second wife when he had suppressed the subsistence of his first marriage to her. While dismissing the application made by the husband (petitioner herein) to quash the order of maintenance passed by the lower Court, a Single Judge Bench of Justice Robin...
The Gauhati High Court has held that a man cannot escape his liability under Section 125, Cr.P.C. to provide maintenance to his second wife when he had suppressed the subsistence of his first marriage to her.
While dismissing the application made by the husband (petitioner herein) to quash the order of maintenance passed by the lower Court, a Single Judge Bench of Justice Robin Phukan observed,
"Section 125 Cr.P.C. is a measure of social justice, enacted to protect the vulnerable section of the society like women, children and infirm parents and it is within the scope of Articles 15(3) and 39 of the Constitution of India. The object of this section is not to punish for the past, but to prevent the vulnerable section of the society, who are unable to maintain themselves, so that they are not left beggared and destitute on the scrap heap of the society, and thereby driven to a life of vagrancy, immorality and crime for their sustenance, by compelling those who are capable to support to perform their moral obligation."
Brief Factual Background:
The petitioner got married to the respondent as per Hindu rites and rituals. After the marriage, the petitioner took the respondent to the house of his sister. After a month, they shifted to a rented house and lived there as husband and wife. After two months, the petitioner took the respondent to his own house, reaching where the respondent got surprised to see the petitioner's first wife. Before the marriage, the petitioner had shown some fake documents to the respondent, whereby he claimed that he had already divorced his first wife.
Finding no alternative, the respondent tried to adjust herself there and maintained the conjugal life. However, after some days, the petitioner demanded money from her and even tried to kill her. She escaped that attempt and conveyed the incident to her family. The family tried to settle the matter amicably and the petitioner again returned to continue her marital life. However, after a few days again she was assaulted by the petitioner and he drove her out of the matrimonial home.
Being aggrieved by these incidents and having no other means for sustenance, the respondent filed an application under Section 125, Cr.P.C. for maintenance. The learned S.D.J.M. granted maintenance to her by directing the petitioner to pay the amount. The petitioner went on revision before the Additional Sessions Judge against the said order, who also dismissed the revision upholding the lower Court order. Hence, he filed an application under Section 482, Cr.P.C. before the High Court against such order.
Contentions of the Petitioner:
The petitioner contended that the learned Courts below had committed grave error in interpreting the word 'wife' in Section 125 of the Cr.P.C, and wrongly granted maintenance in favour of the respondent without there being any valid marriage between the parties.
It was further submitted that the respondent and the petitioner belong to the same village and they know each other since childhood and as such she married the petitioner knowing well about subsistence of his first marriage, and therefore, the impugned judgments and orders suffer from gross illegality and impropriety and accordingly, it was contended to set them aside by allowing the petition. He referred the judgment of the Apex Court in Savitaben Somanhai Bhatiya vs. State of Gujarat and Ors., (2005) 3 SCC 636, to substantiate his submission.
Contentions of the Respondent:
It was contended on behalf of the respondent that no irregularity or illegality was committed by the learned Courts below in granting maintenance to the respondent. It was submitted that the petitioner got married to the respondent by suppressing his first marriage and now he cannot take the benefit of subsistence of his first marriage with his former wife. It is further argued that the petitioner misrepresented the respondent that he had divorced his first wife and shown some documents and as such, the question of non-fulfilment of Section 5(1) of the Hindu Marriage Act did not arise.
The counsel relied on Badshah v. Urmila Badshah Godse & Anr., (2014) 1 SCC 188, to submit that the respondent should be treated as legally wedded wife because the petitioner duped the respondent by suppressing his earlier marriage. Thus, the petitioner cannot deny maintenance to the respondent.
Observations of the Court:
The Court placed reliance upon Veerappa v. Michael, AIR 1963 SC 933, wherein the Supreme Court has held that once a marriage in fact is proved to have taken place, the presumption arising there from in favour of a marriage in law would operate with all its amplitude and plenitude to entitle the wife of such a marriage to entertain an application under Section 125 of the Cr.P.C., unless, on the materials on record, the marriage in question appears to be stamped on its face with indisputable illegality and the invalidity thereof stares at the face.
It also relied on Chanmunia v. Virendra Kumar Singh Kushwaha & Anr., (2011) 1 SCC 141, where it was held that if man and woman have been living together for a long time even without a valid marriage, as in that case, term of valid marriage entitling such a woman to maintenance should be drawn and a woman in such a case should be entitled to maintain application under Section 125, Cr.P.C.
The Court held that in the instant case, solemnisation of marriage between both the parties and subsequent living together as husband and wife for about six months stood established and the said facts were admitted by the petitioner also. And as such, presumption arising therefrom in favour of the marriage in law will operate with all its amplitude and plenitude to entitle the wife to such a marriage to entertain an application under section 125 Cr.P.C.
It also discarded the argument that the respondent (second wife) and the petitioner (husband) belong to the same village, they knew each other since childhood and as such she had married with the petitioner knowing well about subsistence of his first marriage.
The Court noted that there is material on record to show that the petitioner had married the respondent by saying and showing fake documents that he had divorced his 1st wife.Thus, there was nothing on record to dislodge or over-throw such a presumption. The petitioner had also not challenged the validity of his marriage with the petitioner. Therefore, the Court held that the learned courts below had rightly arrived at the conclusion that the respondent is the wife of the petitioner. In the given facts and circumstances, the court was of the considered opinion that at least for the purpose of claiming maintenance under section 125 Cr.P.C., the respondent is entitled to claim to be the wife of the petitioner. Accordingly, the petition was dismissed.
Case Name: Tarun Chandra Das v. Bhanjana Kalita
Case No.: Crl.Pet./589/2021
Date of Judgment: 22 February 2022
Coram: Justice Robin Phukan
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dated 30.08.2021 passed by 2nd Jt. Civil Judge Senior Division,
Nanded below Exh.118 in Special Civil Suit No.27 of 2020 allowing
application filed by respondent nos.1 and 2 - original plaintiffs for
amendment of the plaint under Order-VI, Rule-17 of the Code of Civil
Procedure (hereinafter referred to as the ‘CPC’).
2. Plaintiff nos.1 and 2 are real brothers of defendant no.1.
It is the case of plaintiffs that while obtaining lease in respect of the
suit property by their father, defendant no.1 (plaintiffs’ brother) was
minor and out of pure love and affection, their father added his name
in the lease agreement. After their father passed away, series of
litigation took place between defendant no.1 and defendant nos.5 to
11 over the suit property. Initially defendant nos.5 to 11 decided to
sell the suit property. Plaintiffs alleged that defendants ought to have
purchased the suit property jointly in the name of two plaintiffs and
defendant no.1 as the original lease deed was obtained through funds
of their father. However the sale-deeds in respect of the suit land
were admittedly executed in favour of defendant no.1 alone on
16.09.2017 (by defendant nos.5 to 11) and 09.11.2017 (by
defendant no.12). This has led to filing of Special Civil Suit No.27 of
2020 by two plaintiffs against their brother (defendant no.1), his
children (defendant nos.2 to 4) as well as defendant nos.5 to 11. In
the unamended plaint, plaintiffs prayed for 1/3rd share each in the
suit property as well as recovery thereof. They also sought
declaration that the sale-deeds dated 16.09.2017 and 09.11.2017 are
illegal and not binding on them. They also sought injunction against
defendant nos.5 to 12 from alienating suit properties. They also
sought damages of Rs.Five Crores against defendant nos.5 to 12.
3. Before the trial of the suit would commence, plaintiffs
filed application for amendment of the plaint on 23.02.2021. By way
of amendment, plaintiffs sought to completely overhaul the prayers in
the suit by deleting most of the original prayers and substituted the
same by the following prayers.
“1. Suit of the plaintiff may kindly be decreed in
favour of plaintiff no.1 and 2 and against the defendant
no.1 to 11 for declaration that the plaintiffs are entitle for
rights of pre-emption in suit property and also entitle a
decree for pre-emption against the defendant calling upon
defendant no.5 to 11 to execute a registered sale deed in
favour of the plaintiffs on payment of consideration
amount in suit property bearing CTS No.15929 Mun.
No.2-10-84 (new) admeasuring South – North 22.83 mtr.
And East – West 40.54 mtr., total admeasuring 925.83
sq.mtr. To the east – Govardhan Ghat Road, To the west –
Back side wall of house of Shri. Narayan Patil. To the
south – Land belonging to Shri. Rajesh Chandak and
Pushpa Chandak, To the North – Back side wall of house of
4. In short, the nature of the original suit seeking share in
the suit property and cancellation of sale-deeds was sought to be
changed to that of a decree of pre-emption for execution of sale-deed
in favour of plaintiffs.
5. The application was opposed by defendant no.5
(petitioner herein) by filing reply contending that the proposed
amendment changes the entire nature of the suit. It appears that the
rest of the defendants did not oppose the application for amendment.
By order dated 30.08.2021, the trial Court proceeded to allow the
amendment on payment of costs of Rs.500/-.
6. Mr. Gangakhedkar, the learned Counsel for petitioner
would submit that the amendment allowed by the trial Court
completely changes the nature of the suit. He would submit that the
amendments are so drastic that the original nature of the suit is not
at all retained and completely new lease is sought to be introduced.
He would rely upon the judgment of the Apex Court in Asian Hotels
(North) Limited vs. Alok Kumar Lodha and Others, (2022) 8 SCC
7. Per contra, Mr. Deshmukh, the learned Senior Counsel
for respondent nos.1 and 2 (original plaintiffs) would oppose the
petition and support the order passed by the trial Court. He would
submit that the petition is filed after inordinate delay as the order
granting amendment was passed on 30.08.2021, the amendment was
carried out and the present petition is filed on 29.06.2022. He would
submit that petitioner alone (defendant no.5) is aggrieved by the
order granting the amendment and the main contesting respondent
(defendant no.1) has chosen not to challenge order allowing
amendment. Mr. Deshmukh would further submit that the real
objective of plaintiffs in filing the suit is to claim their right, title and
interest in the suit property which is sought to be claimed by
defendant no.1 alone and since the original prayers were erroneous,
the same are sought to be replaced by way of amended plaint. He
would submit that the basic nature of suit being claimed share in the
suit property remaining the same. Mere change in the nature of
reliefs sought would not amount to change the nature of suit.
Referring to ground clause-II of the petition wherein petitioner has
relied upon provisions of Order-II, Rule-2 of the CPC., Mr. Deshmukh
would rely upon the judgment of the Supreme Court in Life Insurance
Corporation of India vs. Sanjeev Builders Private Ltd & Anr, 2022
LiveLaw (SC) 729. He would pray for dismissal of the petition.
8. After hearing the learned counsel for the parties, it is
clear that the main claim of plaintiffs is against their brother -
defendant no.1. Their grouse essentially is that name of defendant
no.1 was added as lease holder in the lease agreement by their father
only out of love and affection and the entire funds for creating of
such leasehold rights were that of their father. On this basis plaintiffs
are claiming 1/3rd share each in the suit property. They contended
that instead of getting sale-deeds in respect of the suit properties
executed in joint names of plaintiffs and defendant no.1, the same
was illegally executed in the name of defendant no.1 alone. On the
basis of these pleadings, plaintiffs are claiming 1/3rd share each in
the suit properties. Therefore in the suit plaintiffs challenged the sale-
deeds on the basis of which the title in respect of the suit properties
was acquired by defendant no.1 alone. The sale-deeds were executed
in favour of defendant no.1 by defendant nos.5 to 12. However while
setting up a challenge to those sale-deeds, plaintiffs possibly did not
realize that in the event of their suit being decreed and the sale-deeds
being declared null and void, the title in respect of the suit properties
would revert to defendant nos.5 to 12. Thus, even after succeeding
in the suit, plaintiffs would not have been able to claim any right in
the suit properties. Possibly realizing this error in drafting the plaint,
the application for amendment appears to have been filed.
9. Now coming to the amendments that were sought to be
introduced, there can be no iota of doubt that the same completely
overhauls the plaint and possibly changes the nature of the suit. In
fact, it must be observed that the amendments are so drastic that it
has become difficult to compare the amended plaint with unamended
one. Be that as it may, what is required to be seen is whether after
effecting such drastic amendments, whether the basic nature of the
suit would change. As observed earlier, the real objective behind
filing the suit was to claim share in the suit properties against
defendant no.1. Though originally relief of injunction was also
sought against defendant nos.5 to 11 also, it is incomprehensible as
to how defendant nos.5 to 11 once again alienate the property having
already alienated the same in favour of defendant no.1. That prayer
appears to have been deleted in the amended plaint.
10. In their quest to claim the share in the suit property now
plaintiffs have added the prayer to seek right of pre-emption against
defendant nos.5 to 11 and a direction against them to execute
sale-deed in respect of the suit property. Thus the entire nature of the
suit is now sought to be altered. In the original suit, no case was
made out about any right of pre-emption existing in favour of the
plaintiffs against defendant nos.5 to 11. Now an altogether new case
is sought to be introduced. For the sake of convenience, it would be
appropriate to compare the prayers as original sought in the plaint
with that of the amended prayers as under:
Prayers in the original plaint Prayers in the amended plaint
1. Suit of the plaintiffs may kindly be 1. Suit of the plaintiff may kindly be
decreed in favour of plaintiff No.1 & 2 decreed in favour of plaintiff no.1 and 2
and against the defendant no.1 to 12 and against the defendant no.1 to 11
for declaration that, the plaintiff Nos.1 for declaration that the plaintiffs are
& 2 are having 2/3rd share (1/3rd entitle for rights of pre-emption in suit
share each) in the suit land bearing CTS property and also entitle a decree for
No.15929, Mun. No. 2-10-84 (New), pre-emption against the defendant
admeasuring in length south-north calling upon defendant no.5 to 11 to
38.55 meter (appx.) and in width east – execute a registered sale deed in favour
west 35.88 meter (appx.) total adm. of the plaintiffs on payment of
1383.17 sq. meter (appx.) situated near consideration amount in suit property
Tiranga Chowk, Vazirabad, Nanded, bearing CTS No.15929 Mun. No.2-10-
which is bounded by To the East- 84 (new) admeasuring South – North
Govardhan Ghat road, To the West – 22.83 mtr. And East – West 40.54 mtr.,
Back side wall of house of Shri. total admeasuring 925.83 sq. mtr. To
Narayan Patil, To the South – Land the east – Govardhan Ghat Road, To the
belonging to Shri. Lal Ahmad, To the west – Back side wall of house of Shri.
North – Back side wall of house of Shri. Narayan Patil. To the south – Land
Gangusing. belonging to Shri. Rajesh Chandak and
Pushpa Chandak, To the North – Back
2 That, suit of the plaintiffs may kindly be 2. That, suit of the plaintiffs may kindly be
decreed in favour of plaintiff No.1 and decreed in favour of plaintiff no.1 and 2
2 and against the defendant no.5 to 12 and against the defendant no.5 to 11
& defendant nos.5 to 12 for recovery of for recovery of possession of plaintiff
possession of plaintiff no.1 & 2, 2/3rd nos.1 & 2 share in the suit property as
share in the suit property as mentioned mentioned in para no.A of claim clause.
in para No.A of claim clause.
3. That, suit of the plaintiffs may kindly be 3. That, suit of the plaintiffs may kindly be
decreed in favour of plaintiff No.1 and decreed in favour of plaintiff No.1 and 2
2 and against the defendant no.1 to 12 and against the defendant No.5 to 11
for declaration that the registered sale- for damages for the recovery of amount
deed No.5199/2017 dt.16.09.2017 of Rs.5,00,000/- lump sum from
executed by defendant No.5 to 11 in 10.11.2017 till the date of filing of the
favour of defendant no.1 to 4 is illegal, suit and for further inquiry of future
null and void and not binding on damages of suit property under Order
plaintiff no.1 & 2. 12 Rule 20 of CPC from the date of suit
till its realization.
4. That, suit of the plaintiffs may kindly be 4. That, any other relief for which
decreed in favour of plaintiff No.1 and plaintiffs are entitled may kindly be
2 and against the defendant No.5 to 12 awarded in favour of plaintiff no.1 & 2
for declaration that, the registered sale- and against the defendant no.1 to 11.
deed No.6073/2017 dt.09.11.2017
11. Comparing the prayers in the original suit with the
amended suit, there would leave no matter of doubt that the entire
nature of the suit has been changed because of the amendment.
12. It is trite that any amendment which changes the nature
of suit is required to be declined. The principles relating to
amendment of pleadings have been summed up in the recent
judgment of the Supreme Court in Life Insurance Corporation of
“(i) Order II, Rule 2 CPC operates as a bar against a subsequent
suit if the requisite conditions for application thereof are
satisfied and the field of amendment of pleadings falls far
beyond its purview. The plea of amendment being barred under
Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for
determining the real question in controversy provided it does
not cause injustice or prejudice to the other side. This is
mandatory, as is apparent from the use of the word “shall”, in
the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper
adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not
seek to withdraw any clear admission made by the party which
confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting
in divesting of the other side of a valuable accrued right (in
certain situations).
(iv) A prayer for amendment is generally required to be allowed
(i) by the amendment, a time barred claim is sought to be
introduced, in which case the fact that the claim would be time
barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the
court should avoid a hypertechnical approach, and is ordinarily
required to be liberal especially where the opposite party can be
compensated by costs.
(vi) Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a
more satisfactory decision, the prayer for amendment should be
allowed.
(vii) Where the amendment merely sought to introduce an
additional or a new approach without introducing a time barred
cause of action, the amendment is liable to be allowed even
after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in the
plaint.
(ix) Delay in applying for amendment alone is not a ground to
disallow the prayer. Where the aspect of delay is arguable, the
prayer for amendment could be allowed and the issue of
limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the
cause of action, so as to set up an entirely new case, foreign to
the case set up in the plaint, the amendment must be
disallowed. Where, however, the amendment sought is only with
respect to the relief in the plaint, and is predicated on facts
which are already pleaded in the plaint, ordinarily the
amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of
trial, the court is required to be liberal in its approach. The court
is required to bear in mind the fact that the opposite party
would have a chance to meet the case set up in amendment. As
such, where the amendment does not result in irreparable
prejudice to the opposite party, or divest the opposite party of an
advantage which it had secured as a result of an admission by
the party seeking amendment, the amendment is required to be
allowed. Equally, where the amendment is necessary for the
court to effectively adjudicate on the main issues in controversy
between the parties, the amendment should be allowed. (See
Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine
13. Thus, the Supreme Court has held that whether
amendment changes the nature of the suit or the cause of action, so
as to set up an entirely new case, foreign to the case earlier set up in
the plaint, the amendment must be disallowed. In the present case
there was complete absence of pleadings with regard to alleged right
of pre-emption in favour of plaintiffs and therefore it cannot be stated
by any stretch of imagination that the amended prayer is premised on
the pleadings which already existed in the plaint.
14. The trial Court ought to have rejected the application
since the amendment completely changes the nature of the suit.
Mr. Gangakhedkar has relied upon in another recent judgment of the
Apex Court in Asian Hotels (supra) in which it is held in para nos.34
“34. By way of an amendment of the plaint the plaintiffs
now want to challenge the mortgages / charges on the entire
premises created by the appellant. As such, the original plaintiffs
are not at all concerned with the mortgages created by the
appellant which is required for the continuous development of
the hotel. By the purported amendment, the original plaintiffs
have now prayed to declare that all the mortgages / charges
created on the premises as void abinitio. Even such a prayer can
be said to be too vague. How the original plaintiffs can now can
be permitted to challenge various mortgages / charges created
from time to time.
35. At this stage, it is required to be noted that
even under the License Agreement (clause 13) the Licensor shall
have the right to create charges / mortgages as and by way of
first charge on its land, premises and the buildings (including
shops) constructed and to be constructed, in favour of financial
institutions and banks as security for their terms loan
advanced / to be advanced to the licensor for the completion of
its hotel project. Therefore, in fact original plaintiffs being the
licensee are aware that there shall be charges / mortgages on
the entire premises and the buildings including the shops. In
that view of the matter, now after a number of years, plaintiffs
cannot be permitted to challenge the mortgages / charges
created on the entire premises including shops.
36. The High Court while allowing the
amendment application in exercise of powers under Order 6
Rule 17 of the Code of Civil Procedure has not properly
appreciated the fact and / or considered the fact that as such, by
granting such an amendment and permitting plaintiffs to amend
the plaints incorporating the prayer clause to declare the
respective charges / mortgages void ab-initio, the nature of the
suits will be changed. As per the settled proposition of law, if, by
permitting plaintiffs to amend the plaint including a prayer
clause nature of the suit is likely to be changed, in that case, the
Court would not be justified in allowing the amendment. It
would also result in misjoinder of causes of action.”
15. Perusal of the impugned order passed by the trial Court
would indicate that it has completely lost sight of the fact that the
amendment would change the nature of the suit entirely. In fact,
though specific objection was raised by defendant no.5 about change
of nature of suit, the trial Court has not recorded any finding on that
aspect. However the trial Court did observe that “Given thoughtful
consideration to the contentions in the plaint it notices that, it is
crystal clear that plaintiffs are coming with a new case in respect of
their right to pre-emption.”
16. Despite arriving at a finding that plaintiffs were
introducing an altogether new case by amending the plaint, the trial
Court has still proceeded to allow the application for amendment on
the ground that since the amendment is also in respect of the same
property, the plaintiffs are at liberty to seek a prayer as to how they
are entitled to the suit property. This reasoning in my view is
completely erroenous.
17. In the result, I find that the order passed by the trial
Court is indefensible and the same is liable to be set aside.
18. Accordingly, the writ petition is allowed. The order dated
30.08.2021 passed by 2nd Jt. Civil Judge Senior Division, Nanded
below Exh.118 in Special Civil Suit No.27 of 2020 is set aside and
application for amendment filed by respondent nos.1 and 2 (original
plaintiffs) stands dismissed. Rule is made absolute accordingly.
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The Bombay High Court recently reiterated that an amendment that completely changes the nature of the suit cannot be permitted.
Justice Sandeep V. Marne of the Aurangabad bench set aside a trial court order which allowed amendment to prayers in a property dispute despite observing that the plaintiffs were bringing a new case through the amendment.
"Despite arriving at a finding that plaintiffs were introducing an altogether new case by amending the plaint, the trial Court has still proceeded to allow the application for amendment on the ground that since the amendment is also in respect of the same property, the plaintiffs are at liberty to seek a prayer as to how they are entitled to the suit property. This reasoning in my view is completely erroenous", the court stated in its judgment.
The court observed that the amendment changed the nature of the suit completely and there were no pleadings in the suit to substantiate the new prayers.
The original plaintiffs in the suit are real brothers. It is their case that while obtaining the lease in respect of the suit property, their father added their minor brother's name in the lease agreement out of pure love and affection. After their father passed away, series of litigation took place and the suit property was sold to the third brother alone. Therefore, the plaintiffs filed a suit seeking one third share each of the suit property. They also sought declaration that the original sale deed was illegal.
Before the commencement of the trial, they sought amendment of their plaint under Order-VI, Rule-17 of the CPC to change the prayers in the suit. They sought decree of pre-emption for execution of sale-deed in favour of plaintiffs. The trial court allowed the amendment.
The petitioner in the present petition is a defendant in the suit. He approached the court high court in a writ petition challenging the trial court's order.
Advocate S. S. Gangakhedkar for the petitioner submitted that the amendment completely changes the nature of the suit and the original nature of the suit is not retained.
Senior Counsel Rajendra Deshmukh for the original plaintiffs submitted that the real objective of the plaintiffs in filing the suit is to claim the right, title, and interest in the suit property. The original prayers were erroneous; hence they have replaced them. The basic nature of claiming share in the suit property remains the same and mere change in the relief sought would not amount to changing the nature of the suit.
The court noted that if the sale-deeds are declared null and void, the title in respect of the suit properties would revert to original defendant nos. 5 to 12. Even after succeeding in the suit, plaintiffs would not have been able to claim any right in the suit properties. The plaintiffs possibly sought to amend the prayers for this reason, the court observed.
The court compared the prayers in the original suit as well and the amended suit and said that the amendment is so drastic that it is difficult to compare the amended plaint with the original one.
The court relied on Supreme Court judgement in Life Insurance Corporation of India v. Sanjeev Builders Private Ltd & Anr and noted that there was a complete absence of pleadings in the suit regarding plaintiffs' right of pre-emption. "…therefore it cannot be stated by any stretch of imagination that the amended prayer is premised on the pleadings which already existed in the plaint", the court stated.
The court said that the trial court should have rejected the amendment application as it completely overhauls the plaint.
Though specific objection was raised by the petitioner before the trial court, it did not record any finding on that aspect. However, it did observe that the plaintiffs are coming with a new case in respect to the right to pre-emption.
Despite this finding, the trial court allowed the amendment stating that since the amendment is in respect of the same property, the plaintiffs can seek the prayer as to how they are entitled to the suit property.
The court said that this reason is erroneous and the trial court completely lost sight of the fact that the amendment would change the nature of the suit entirely.
Case no. – Writ Petition No. 6971 of 2022
Case title – Damodhardas Govindprasad Sangi v. Fatehsinh s/o. Kalyanji Thakkar and Ors.
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1. This is an application under Section 482 of the Code of
Criminal Procedure to quash the First Information Report in Crime
No. 355/2020 dated 12th November, 2019 registered with Ramanand
Police Station, Dist. Jalgaon and consequent criminal proceeding
criappln1122.21.odt
being RCC No. 66/2021 pending on the fle of learned Judicial
Magistrate First Class, Jalgaon, for offences punishable under
Sections 498A, 323, 504, 406, 506 read with Section 34 of the Indian
Penal Code and Section 3 of the Dowry Prohibition Act.
2. Heard learned counsel for the applicant, learned APP for
the State and learned counsel for respondent No. 2. We have
perused the record and considered the submissions advanced by
learned counsel for the respective parties.
3. The scope and power of the High Court to quash the First
Information Report or criminal proceedings under Section 482 of the
Code of Criminal Procedure is well settled.
The Hon’ble Supreme Court in State of Haryana and
others vs. Bhajan Lal and others, AIR 1992 Supreme Court Cases
335 has laid down the guidelines that must be adhered to while
exercising its inherent powers under Section 482 of the Code of
Criminal Procedure to quash the First Information Report. The
relevant paragraph reads thus :-
“ 102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
criappln1122.21.odt
Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise
to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defned and
suffciently channelised and infexible guidelines or
rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the frst
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the frst information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police offcers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police offcer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
criappln1122.21.odt
just conclusion that there is suffcient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code of the concerned Act
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specifc provision in the Code
or the concerned Act, providing effcacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fde and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.
4. In Zandu Pharmaceutical Works Ltd. and others vs. Md.
Sharaful Haque and others, AIR 2005 SCC 9, the Apex Court has
“8. … It would be an abuse of process of the Court
to allow any action which would result in injustice and
prevent promotion of justice. In exercise of the powers
Court would be justifed to quash any proceeding if it
fnds that initiation/continuance of it amounts to
abuse of the process of Court or quashing of these
proceedings would otherwise serve the ends of justice.
When no offence is disclosed by the complaint, the
Court may examine the question of fact. When a
complaint is sought to be quashed, it is permissible to
look into the materials to assess what the complainant
criappln1122.21.odt
has alleged and whether any offence is made out even
if the allegations are accepted in toto.”
5. Since the First Information Report in question emanates
from matrimonial dispute, it would be relevant to refer to the case of
Kahkashan Kausar alias Sonam and Others vs. State of Bihar and
others, (2022) 6 SCC 599, wherein the Apex Court has observed
that“incorporation of Section 498-A of I.P.C. was aimed at preventing
cruelty committed upon a woman by her husband and her in-laws, by
facilitating rapid state intervention. However, it is equally true, that in
recent times, matrimonial litigation in the country has also increased
significantly and there is a greater disaffection and friction surrounding
the institution of marriage, now, more than ever. This has resulted in an
increased tendency to employ provisions such as 498-A I.P.C. as
instruments to settle personal scores against the husband and his
relatives.” The Apex Court, upon considering the previous judgments
relating to quashment of F.I.R. in respect of offence punishable under
Section 498-A of the I.P.C. has observed in paragraph no.17 thus,-
“17. … this Court has at numerous instances expressed
concern over the misuse of Section 498-A I.P.C. and the
increased tendency of implicating relatives of the husband in
criappln1122.21.odt
matrimonial disputes, without analysing the long-term
ramifications of a trial on the complainant as well as the
accused. It is further manifest from the said judgments that
false implication by way of general omnibus allegations
made in the course of matrimonial dispute, if left unchecked
would result in misuse of the process of law. Therefore, this
Court by way of its judgments has warned the courts from
proceeding against the relatives and in-laws of the husband
when no prima facie case is made out against them.”
6. Keeping the above preposition of law in mind, the crucial
question for consideration is whether the accusations levelled against
the applicant fall under any of the categories as enumerated in the
case of Bhajan Lal (supra).
7. The applicant herein is a married sister of the husband
of respondent No. 2. The marriage between respondent No. 2 and the
brother of the applicant was solemnised on 19th April, 2019.
Respondent No. 2 left the matrimonial home on 7 th June, 2019. She
lodged First Information Report on 12th November, 2019 against her
husband, his parents and applicant herein alleging that they had
subjected her to physical and mental cruelty within the meaning of
Section 498A of the Indian Penal Code.
8. The First Information Report prima facie reveals that
there is rift in marital ties between the respondent No. 2 and her
husband, the brother of the applicant herein. The applicant has
been dragged into the matrimonial dispute with allegations that -
i) On 18th May, 2019, she ordered Chicken Biryani for her brother
but told respondent No. 2 to cook her own food.
ii) When respondent No. 2 had visited the applicant, she was told
to get ready in an unused washroom.
iii) The applicant had told respondent No. 2 not to raise her voice
against her parents.
iv) The applicant had phoned the brother of respondent No. 2 and
told him that they should keep respondent No. 2 at her parental
house at Jalgaon and that respondent No. 2 should seek divorce.
v) The applicant told the brother of respondent No. 2 that the
behaviour of respondent No. 2 was not acceptable to them and that
she should mend her ways to continue to live in the matrimonial
vi) The applicant, who is a Judicial Offcer, ought to have
intervened the dispute between the respondent No. 2 and her
criappln1122.21.odt
husband impartially rather than being biased, supporting her
brother and blaming her.
vii) The applicant posted a comment on her WhatsApp status
congratulating her brother for fnding a new girl in his life and
advising him to forget the past and start a new life.
9. The aforesaid accusations even if taken at face value and
accepted in their entirety, do not constitute any offence justifying
investigation against the application. The case in our hand is fully
covered by categories (1) and (3) as enumerated by the Apex Court in
Bhajan Lal (supra). It is pertinent to note that unfounded criminal
charges and long drawn criminal prosecution can have serious
consequences. A person subjected to such litigation suffers immense
mental trauma, humiliation and monetary loss. Reckless
imputations can also result in serous repercussion on career
progression and future pursuits and most importantly it stigmatizes
reputation, brings disrepute and lowers the image of a person
amongst friends, family and colleagues. It is to be noted that loss of
character or bruised reputation cannot be restored even by judicial
reprieve. As Shakespeare has famously said that “Good name in
man and woman, dear my lord, is the immediate jewel of their souls:
Who steals my purse steals trash; ’tis something, nothing; ’twas
criappln1122.21.odt
mine, ’tis his, and has been slave to thousands: But he that flches
from me my good name Robs me of that which not enriches him and
makes me poor indeed.” In legal parlance, right to reputation and
dignity of an individual is held to be an integrated part of Articles 21
and 19(2) of the Constitution. Therefore, it is imperative for the Court
to exercise power under Section 482 of the Code of Criminal
Procedure, in ft cases, to safeguard and protect the rights of every
person subjected to such litigation and prevent misuse of criminal
process for personal vendetta.
10. As noted by us above, the First Information Report in
question is a classic example wherein the family members of the
husband have been implicated in proceedings under Section 498A of
the Indian Penal Code as an instrument to settle personal score with
the husband. The unfounded proceedings, qua the applicant, need
to be quashed to prevent the abuse of the process of the Court, to
protect the right of the applicant and thus to secure the ends of
11. In the circumstances, application is allowed in terms of
prayer clauses ‘C’ and ‘C-1’. Consequently, First Information Report
criappln1122.21.odt
bearing Crime No. 355/2020 dated 12 th November, 2019 registered
with Ramanand Police Station, Dist. Jalgaon for offences punishable
under Sections 323, 504, 406, 504, 506 read with Section 34 of the
Indian Penal Code and Section 3 of Dowry Prohibition Act and RCC
No. 66/2021 pending on the fle of learned Judicial Magistrate First
Class, Jalgaon, stand quashed and set aside, qua the applicant.
|
The Bombay High Court recently quashed an FIR against a judicial officer accused of subjecting her brother’s wife to physical and mental cruelty.
A division bench of Justice Anuja Prabhudessai and Justice R. M. Joshi of Aurangabad said that this case of Section 498A IPC is being used to settle personal score.
“...the First Information Report in question is a classic example wherein the family members of the husband have been implicated in proceedings under Section 498A of the Indian Penal Code as an instrument to settle personal score with the husband. The unfounded proceedings, qua the applicant, need to be quashed to prevent the abuse of the process of the Court, to protect the right of the applicant and thus to secure the ends of justice”, the court held.
The court reiterated that an individual’s right to reputation and dignity is an integral part of Articles 21 and 19(2) of the Constitution.
The court quoted Shakespeare’s play Othello in its judgment –
“Good name in man and woman, dear my lord, is the immediate jewel of their souls: Who steals my purse steals trash; ’tis something, nothing; ’twas mine, ’tis his, and has been slave to thousands: But he that filches from me my good name Robs me of that which not enriches him and makes me poor indeed.”
The judicial officer, along with her brother and parents, were implicated in an FIR filed in June 2019. She was accused of inflicting mental and physical harm on her sister-in-law under section 498A of the IPC.
Hence, she approached the high court under section 482 Cr.P.C. with an application to quash the FIR.
According to the FIR, there is a rift between the complainant and her husband. It was alleged that the applicant ordered Chicken Biryani for her brother but told the complainant to cook her own food.
Further, she told the complainant not to raise her voice against her parents and encouraged her brother to seek divorce from the complainant, according to the FIR.
The FIR further stated that the applicant, as a judicial officer, should have intervened in the dispute between the complainant and her husband impartially rather than being biased and supporting her brother.
The court said that even if the accusations are accepted at face value, they do not constitute any offence justifying the investigation.
The present case is covered by State of Haryana v. Bhajan Lal in which Supreme Court laid down the guidelines for exercising inherent powers under Section 482 of the Cr.P.C. to quash FIRs, the court held.
The court said that unfounded criminal charges and long drawn criminal prosecution can have serious consequences such as mental drama, humiliation, and monetary loss. “Reckless imputations can also result in serous repercussion on career progression and future pursuits and most importantly it stigmatizes reputation, brings disrepute and lowers the image of a person amongst friends, family and colleagues. It is to be noted that loss of character or bruised reputation cannot be restored even by judicial reprieve”, the court added.
Advocate A. R. Devkate represented the applicant.
APP P. G. Borade appeared for the State.
Advocate T. K. Sant appeared for the complainant.
Case no. – Criminal Application No. 1122 of 2021
Case Title – Vrushali Jayesh Kore v. State of Maharashtra and Anr.
|
ivil Appeal No. 4802 of 1989.
From the Judgment and Order dated 7.9.1987 of the Bombay High Court in First Appeal No. 24 of 1986.
Anil Dev Singh, C. Ramesh, C.V.S. Rao and P. Parmeshwa ran for the Appellants.
S.K. Mehta, Dhruv Mehta, Aman Vachher, Atul Nanda and S.M. Satin for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETrY, J.
Special Leave granted.
This case raises yet another variant of a vexed ques tion.
Does Section 23(2) of the Land Acquisition Act, 1984 (as amended by Act 68 of 1984) providing for higher solatium proprio rigore apply to award made subsequent to 24 Septem ber 1984 even though the acquisition commenced prior to the said date.
The appeal also raises another important question as to the applicability of section 23(IA) providing addi tional amount of compensation to award made in such acquisi tion proceedings.
The facts are not in dispute and may be stated as follows: By notification under section 4 of the Land Acquisition Act, 1894 (the 'Act ') published in the Government Gazette on 26 October 1967, the State Government declared its intention to acquire the land belonging to the respondent for estab lishing Naval Air Station Dabolim.
On 23 February 1968, notification under section 6 was published in the Gazette.
On 5 March 1969 the Land Acquisition Officer declared award determining compensation at the rate of 40 paise per square meter with solatium at 15 per cent.
The claimant had sought reference under section 18 of the Act and reference was duly made to the Civil Court (District Judge).
On 339 28th May 1985, the Court after investigation of the claim awarded compensation at Rs.3 per square meter.
The Court also awarded solatium at 15 per cent and interest at 6 per cent from the date of taking possession till payment of compensation.
Not being satisfied, the claimant preferred an appeal to the High Court seeking further enhancement of compensation and also solatium at 30 per cent.
This claim was apparently based on the new provisions introduced by the Amending Act 68 of 1984.
The High Court accepted the appeal and granted the reliefs in the following terms: "The impugned award dated 28th May, 1986, is modified.
The appellant is entitled to the added benefits.
In that he shall be entitled to have the compensation at the rate of 12% of the market value from the date of section 4 notification till the date of possession or the date of award, whichever is earlier.
The appellant is further entitled to interest at the rate of 9% for the first year from the date of taking over possession and thereafter at the rate of 15% per annum till the date of deposit or payment as the case may be.
The appellant shall be entitled to further 15 per cent solatium in addition to the 15 per cent already granted to him.
To the extent indicat ed above, the award shall stand modified.
" The High Court has thus granted three more reliefs to the claimant: (i) Additional amount at the rate of 12 per cent of the market value from the date of notification under section 4 till the date of taking over possession; (ii) interest at the rare of 9% for the first year from the date of taking possession and 15 per cent for the subsequent years; and (iii) solatium at 30 per cent on the market value.
There is no grievance made in this appeal as to the second of the reliefs granted to the claimant.
The claimant is entitled to the interest under section 28 of the Act.
The challenge is only against the first and the third of the said reliefs.
They were evidently given under the amended sections 23(IA) and 23(2) of the Act.
We will first take up the question of solatium.
On 30 April 1982, the corresponding Bill of the Amending Act 68 of 1984, namely, Land Acquisition (Amendment) Bill 1982, was introduced in Parliament.
On 24th September 1984 it became law as the Land Acquisition (Amendment) Act, 68 of 1984, when it received assent of the President.
Before the amend ment, Section 23(2) provided solatium at 15 340 per cent on the market value.
After amendment by Act 68 of 1984 solatium was raised to 30 per cent on the market val ued.
Section 23(2) now reads: "23(2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of (thirty per centum) on such market value, in consideration of the compulsory nature of the acquisition." The question herein is whether the higher solatium is attracted to the present case.
Section 23(2) has been given limited retrospectivity by supplying transitional provisions under section 30(2).
Section 30(2) reads: "30.
Transitional provisions: (1) xxxxxx xxxxxxx xxxxxxxx (2) The provisions of sub section (2) of Section 23 of the principal Act, as amended by clause (b) of Section 15 and Section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the princi pal Act after the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1984, in the House of the People) and before the commence ment of this Act." The scope of retrospective operation of Section 23(2) was first explained in Kamalajammaniavaru vs Special Land Acquisition Officer, A two Judge Bench held that the award of 30 per cent solatium will apply only where the award appealed against was made by the Collector of Court during the period between 30 April 1982 and 24 September 1984.
This decision was rendered on 14 February 1985.
Shortly thereafter there was another decision by a three Judge Bench in Bhag Singh vs Union Territory of Chand igarh; , There a contrary view was ex pressed.
It was held that even if an award is made by the Collector or Court on or before 30 April, 1982, and an appeal against such award is pending before the High Court or the Supreme Court on 30 April 1982 or is filed subsequent to that date, 30 per cent solatium under section 23(2) should be 341 allowed.
In taking that view, Bhag Singh overruled Kamala jammannavaru and approved of the opinion expressed in anoth er three Judge Bench in State of Punjab vs Mohinder Singh, But the recent Constitution Bench in Union of India vs Raghubir Singh, ; has overruled Bhag Singh and Mohinder Singh and reiterated the view ex pressed in Kamalajammanaivaru.
Pathak, CJ., speaking for the Court in Raghubir Singh case rounded off his discussion thus (at 782): "We think that what Parliament intends to say is that the benefit of section 30(2) will be available to an award by the Collector or the Court made between the aforesaid two dates or to an appellate order of the High Court or of the Supreme Court which arises out of an award of the Collector or the Court made between the said two dates.
The word 'or ' is used with reference to the stage at which the proceeding rests at the time when the benefit under section 30(2) is sought to be extended.
If the proceeding has terminated with the award of the Collector or of the Court made between the aforesaid two dates, the benefit of section 30(2) will be applied to such award made between the aforesaid two dates.
If the pro ceeding has passed to the stage of appeal before the High Court or Supreme Court, it is at that stage when the benefit of section 30(2) will be applied.
But in every case, the award of the Collector or of the Court must have been made between April 30, 1982 and September 24, 1984." In stating thus, the decision has set at rest the con troversy as to entitlement of higher solatium to cases pending as on the date of commencement of the Amending Act.
Section 23(2) was held to apply to awards made in between 30 April 1982 and 24 September 1984.
Obviously they must be awards in acquisition commenced prior to the said dates.
The award may be of the Collector or Court.
One or the other must receive thirty per cent solatium on the market value of the land.
More important, that the higher solatium could also be given by the High Court or the Supreme Court in appeals against such award.
But these decisions do not solve the problem presented here.
The award with which we are concerned does not fall within the interregnum i.e. between 30 April 1982 and 24 September 1984.
To repeat the facts: The acquisition com menced on 26 October 1967 when the notification under sec tion 4(1) of the Act was published.
On 5 March 342 1969 the Collector made the award and on 28 May 1985 the reference court made the award.
Both the awards, thus appar ently fall outside the period prescribed under section 30(2).
Counsel for the appellant on the aforesaid facts rules out the applicability of section 30(2) in the first place.
Secondly, he also ruled out the applicability of section 23(2).
The first contention was based on the plain terms of Section 30(2) and the second on the ground that section 23(2) with its isolated splendour is not retrospective in operation.
He thus submitted that the claimant 's case could not be saved for higher solatium either under Transitional Provisions or by amended Section 23(2) of the Act and it was gone both ways.
This submission reminds us of the words of Shakespeare in the Merchant of Venice, where Luncelot tells Jessica: "Truely then I fear you are damned both by father and mother.
When I shun scylla your father, I fail into charybdis your mother.
Well, you are gone both ways." (The Merchant of Venice 3.5).
The submission that Section 23(2) by itself has no retrospective operation seems to be justified.
It is signif icant to note that section 23(2) forms part of a scheme of determining compensation for land acquired under the Act.
It provides 30 per cent solatium on the market value of the land in consideration of the compulsory nature of the acqui sition.
It thus operates on the market value of the land acquired.
The market value of the land is required to be determined at the date of publication of the notification under section 4(1).
It cannot be determined with reference to any other date.
That has been expressly provided for under section 23(1) of the Act.
In the instant case, section 4(1) notification was published on 20 October 1967.
The Amending Act 68 of 1984 came into force on 24 September 1984.
The amended section 23(2) by itself is not retrospec tive in operation.
It can not proprio vigore apply to awards in respect of acquisition proceedings commenced prior to 24 September 1984.
If, therefore, section 30(2) does not cover the present case, then amended Section 23(2) has no part to play.
This in effect is the result of the plain meaning rule of interpreting Section 30(2) of the Amending Act 68 of 1984.
But then, it would seem very odd indeed and anomalous too to exclude the present case from the operation of sec tion 30(2).
Section 30(2) is the Transitional 343 Provisions.
The purpose of incorporating Transitional Provi sions in any Act or amendment is to clarify as to when and how the operative parts of the enactments are to take ef fect.
The Transitional Provisions generally are intended to take care of the events during the period of transition.
Mr. Francis Bennion in his book on Statutory Interpretation (14 Edition, p. 442) outlines the purpose of such provisions: "189.
Transitional Provisions Where an Act contains substantive, amending or repealing enactments, it commonly also in cludes transitional provisions which regulates the coming into operation of those enactments and modify their effect during the period of transition.
Where an Act fails to include such provisions expressly, the Court is required to draw such inferences as to the intended tran sitional arrangements as, in the light of the interpretative criteria, it considers Parlia ment to have intended.
" The paramount object in statutory interpretation is to discover what the legislature intended.
This intention is primarily to be ascertained from the text of enactment in question.
That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose.
A statute is neither a literary text nor a devine revelation "Words are certainly not crystals, trans parent and unchanged" as Mr. Justice Holmes has wisely and properly warned.
(Town vs Eisher; , , 425, 1918).
Learned Hand, J., was equally emphatic when he said.
"Stat utes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them." (Lenigh Valley Coal Co. vs Yensavage, 2 at 553.) Section 30(2) provides that amended provisions of Sec tion 23(2) shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the collector or Court between 30 April 1982 and 24 September 1984, or to an appellate order therefrom passed by the High Court or Supreme Court.
The purpose of these provisions seems to be that the awards made in that interregnum must get higher solatium in as much as to awards made subsequent to 24 September 1984.
Perhaps it was thought that awards made after the commencement of the Amending Act 68 of 1984 would be taken care of by the amended Section 23(2).
The case like the present one seems to have escaped attention by innocent lack of due care in the drafting.
344 The result would be an obvious anomaly as will be indicated presently.
If there is obvious anomaly in the application of law the Court could shape the law to remove the anomaly.
If the strict grammatical interpretation gives rise to absurd ity or inconsistency, the Court could discard such interpre tation and adopt an interpretation which will give effect to the purpose of the legislature.
That could be done, if necessary even by modification of the language used.
[See: Mahadeolal Kanodia vs The Administrator General of West Bengal, The legislators do not always deal with specific controversies which the Court decide.
They incorporate general purpose behind the statutory words and it is for the courts to decide specific cases.
If a given case is well within the general purpose of the legis lature but not within the literal meaning of the statute, then the court must strike the balance.
The criticism that the literal interpretation of Section 30(2), if adhered to would lead to unjust result seems to be justified.
Take for example; two acquisition proceedings of two adjacent pieces of land, required for the same public purpose.
Let us say that they were initiated on the same day a day sometime prior to 30 April 1982.
In one of them the award of the Collector is made on 23 September 1984 and in the other on 25 September 1984.
Under the terms of Sec tion 30(2) the benefit of higher solatium is available to the first award and not to the second.
Take another example; the proceedings of acquisition initiated, say, in the year 1960 in which award was made on 1 May 1982.
Then the amended Section 23(2) shall apply and higher solatium is entitled.
But in an acquisition initiated on 23 September 1984, and award made in the year 1989 the higher solatium is ruled out.
This is the intrinsic illogicality if the award made after 24 September 1984, is not given higher solatium.
Such a construction of Section 30(2) would be vulnerable to attack under Article 14 of the Constitution and it should be avoided.
We, therefore, hold that benefit of higher solatium under section 23(2) should be available also to the present case.
This would be the only reasonable view to be taken in the circumstances of the case and in the light of the pur pose of Section 30(2).
In this view of the matter, the higher solutium allowed by the High Court is kept undis turbed.
This takes us to the second question which we have formulated at the beginning of the judgment: Whether the claimant is entitled to additional amount of compensation provided under Section 23(IA) of the Act? This is equally a fundamental question and seemingly not covered by any of the previous decisions of this Court.
345 Section 23(IA) reads as follows: "In addition to the market value of the land, as above provided, the court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notifica tion under Section 4, sub section (!), in respect of such land to the date of award of the Collector or the date of taking possession of the land, whichever is earlier.
Explanation: In computing the period referred to in this sub section any period or periods during which the proceedings for the aquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded.
" The objective words used in this sub section are similar to those that are used in Section 23(2).
It enjoins a duty on the Court to award the additional amount at twelve per cent on the market value of the land for the period prescribed thereunder.
But this again is a part of the scheme for determining compensation under Section 23(1) of the Act.
It also operates on the market value of the land acquired.
It is plainly and distinctly prospective in its operation since market value has to be determined as on the date of publica tion of notification under section 4(1).
But the legislature has given new starting point for operation of section 23(IA) for certain cases.
That will be found from Section 30 sub section l(a) and (b) of the Transitional Provisions.
They read as follows: Section 30: Transitional Provisions: (1) The provision of sub section (IA) of Section 23 of the principal Act, as inserted clause (a) of section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to: (a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April 1982 the date of intro duction of the Land Acquisition (Amendment) Bill 1982 [in the House of the People] in which no award has been made by the Collector before that date.
346 (b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act.
" Entitlement of additional amount provided under Section 23(1A) depends upon pendency of acquisition proceedings as on 30 April 1982 or commencement of acquisition proceedings after that date.
Section 30 sub section (1)(a) provides that additional amount provided under Section 23(IA) shall be applicable to acquisition proceedings pending before the Collector as on 30 April 1982 in which he has not made the award before that date.
If the Collector has made the award before that date then, that additional amount cannot be awarded.
Section 30 sub section (1)(b) provides that section 23(l A) shall be applicable to every acquisition proceedings commenced after 30 April 1982 irrespective of the fact whether the Collector has made an award or not before 24 September 1984.
The final point to note is that Section 30 sub section (1) does not refer to Court award and the Court award is used only in section 30 sub section (2).
In the case before us, on 26 October 1967, the notifica tion under section 4 was issued.
On 5 March 1969 the Collec tor made the award.
The result is that on 30 April 1982 there was no proceedings pending before the Collector.
Therefore, section 30 sub section (1)(a) is not attracted to the case.
Since the proceedings for acquisition commenced before 30 April 1982, section 30 sub section (1)(b) is also not applicable to the case.
Here, the case is really gone by both ways.
It cannot be saved from Scylla or Charybdis.
The claimant is, therefore, not entitled to additional amount provided under Section 23( I A).
Before we part with the case, it is important that we should refer to two authorities of the High Courts which have taken contrary view.
As to the applicability of Section 23(IA) to pending cases, the Karnataka High Court in Special Land Acquisition Officer, Dandeli vs Soma Gopal Gowda, AIR 1986 Karnataka 179 at 183 (FB) has expressed the view that for giving an addi tional amount calculated at the rate of 12 per cent per annum on the market value of the land, no distinction could be made respecting lands acquired before or after the coming into force of the Amending Act.
In all pending cases whether on reference or on appeal, the Court is required to apply the provisions of Section '23(1A) in determining compensa tion payable to claimants.
For this conclusion the Court relied upon the judgment of this Court in 347 Bhag Singh case.
The Bombay High Court in Jaiwant Laxman P. Sardesai etc.
vs Government of Goa, Daman and Diu and Ant., AIR 1987 Bom 214 at 217 (FB) has also accepted a similar line of reasoning.
In fact the reasons are so much similar, the cases look like twins.
Both the High Courts have focussed attention on the terms and phraseology used in Section 30 sub section (1) namely," . . shall apply, and shall be deemed to have applied, also to, and in relation has also been proceedings for acquisition . . ".
The conclusion has also been rested on the mandatory words of Section 23(lA).
It was said that it enjoins a duty on the court to award the amount in every case and that mandate of the legislature could not be ignored.
The decision of this Court in Bhag Singh appears to be the single motive force guiding the approach and reaching the conclusion.
But it may be noted that the aforesaid phraseology used in Section 30 sub section (1) is quite similar to that used in Section 30 sub section (2).
The scope of those words has already been examined and no more need to be stated in that regard since Bhag Singh has been overruled in Raghubir Singh.
The view taken by the High Courts of Karnataka and Bombay therefore, could no longer be cosidered as good law and the said decisions are accordingly overruled.
In the result, the appeal is allowed in part.
The judg ment of the High Court is modified and the compensation award under Section 23(IA) is deleted.
The judgment and decree in other respects are kept undisturbed. ' In the circumstances of the case, we make no order as to costs.
Y. Lal Appeal allowed.
|
By a notification issued under Section 4 of the Land Acquisition Act and published in the Government Gazette on 26.10.1967, the State Government declared its intention to acquire the land of the Respondent on 23.2.1968.
A notifica tion under section 6 of the Act was published in the Gazette and on 5.3.1969.
The Land Acquisition Officer declared award, determining compensation at the rate of 4 paise per square meter with solatium at 15 per cent.
At the instance of the respondent claimant, a reference under section 18 of the Act was made to the Distt.
judge on May 28, 1985.
The Civil Court awarded compensation at Rs.3 per square meter and also awarded solatium at 15 per cent and interest at 6 per cent from the date of taking possession of the land by the State till payment of compensation.
Being dissatisfied, the Respondent preferred an appeal to the High Court seeking enhancement both of compensation and solatium at the rate of 30 per cent.
The High Court allowed the appeal, and granted three reliefs viz; (1) Additional amount at the rate of 12 per cent of the market value from the date of the notification under section 4 till the date of taking over possession; (2) interest at the rate of 9 percent for the first year from the date of taking possession and 15 per cent for the subse quent.
years and (3) Solatium at 30 per cent on the market value.
The appellant has thus filed the instant appeal after obtaining Special Leave.
There is no grievance as regards the interest awarded.
The challenge relates to the grant of enhanced solatium and the additional amount of compensation.
Appellants ' conten tion is that sections 30(2) and 23(2) are not at all at tracted and the claim of the Respondent on the said two counts is not sustainable.
337 Partly allowing the appeal, this Court, HELD: Section 30(2) provides that the amended provisions of section 23(2) shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court between 30th April 1982 and 24th Septem ber 1984, or to an appellate order therefrom passed by the High Court or Supreme Court.
The purpose of these provisions seems to be that the awards made in that interregnum must get higher solatium in as much as to awards made subsequent thereto.
[343G H] If there is obvious anamoly in the application of law, the Court could shape the law to remove the anamoly.
The Legislatures do not always deal with specific controversies which the Court decide.
They incorporate general purpose behind the statutory words and it is for the Courts to decide specific cases.
If a given case is well within the general purpose of the legislature but not within the liter al meaning of the statute, then the Court must strike the balance.
So construing the Court held that benefit of higher solatium under section 23(2) should be available also to the present case.
[344A C] In the instant case, on October 26, 1967, the notifica tion under section 4 was issued.
On March 5, 1969, the Collector made the award.
The result is that on April 30, 1982 there was no proceeding pending before the Collector.
Therefore Section 30, sub section (1)(a) is not attracted to the case.
Since the proceedings for acquisition commenced before 30th April 1982 Section 30, sub section (1)(b) is also not applicable to the case.
The case is therefore really gone by both ways.
The claimant is therefore not entitled to additional amount provided under Section 23(IA).
[346E F] The purpose of incorporating Transitional Provisions in any Act or amendment is to clarify as to when and how the operative parts of the enactments are to take effect.
The transitional provisions generally are intended to take care of the events during the period of transition.
[343A] Kamalajammaniavaru vs Special Land Acquisition Offi cer, ; Bhag Singh vs Union Territory of Chandigarh, ; ; State of Punjab vs Mohinder Singh, ; Union of India vs Raghubir Singh, ; ; Towne vs Eisher, ; ,425, 1918; Lenigh Valley Coal Co. vs Yensavage, at 553; Mahadeolal Kanodia vs The Administrator General of West Bengal, ; , referred to.
338 Special Land Acauisition Officer, Dandeli vs Soma Gopal Gowda, AIR 1986 Karnataka 179 at 183 (FB); Jaiwant Laxman P. Sardesai etc.
vs Government of Goa Daman & Diu & Anr.
, AIR 1987 Bom.
214 at 217 (FB), overruled.
|
1. This criminal appeal under Section 374(2) CrPC arises out of
judgment and order dated 31st August, 1982 passed by the IVth
Additional Sessions Judge, Lucknow in Sessions Trial No.170 of
1981, convicting accused, Ram Khelawan (appellant no. 1) under
Section 302 IPC and accused Budhu and Ram Dutt (appellant no. 2)
under Section 302/34 IPC and sentenced them to undergo life
imprisonment. Accused, Ram Khelwan (appellant no. 1) had been
further convicted under Section 324 IPC and accused, Budhu and
Ram Dutt (appellant No. 2) had been convicted under Section 324/34
IPC and sentenced to undergo two years rigorous imprisonment.
2. Appeal filed by accused, Budhu, being Criminal Appeal No.685 of
1982, who was also convicted and sentenced, as noted above, has
been dismissed by this Court vide judgment and order dated
06.04.2018. While dismissing the said criminal appeal, this Court had
"We find that there are consistent statements of prosecution
witnesses on record which are also corroborated by the injury
reports as well as the opinion of the doctor with regard to
receiving fatal blow by the deceased as well as the injuries
received by Ketar. The case of the prosecution that Buddhoo
had come armed with knife giving challenge that he would not
allow Ram Beti to be married in Village Kharika and then Ram
Khelawan took knife from Buddhoo and gave knife blow at the
left hand of Ketar and thereafter Ram Dutt and Buddhoo
caught hold of Ram Deen by his hands and Ram Khelawan
gave him knife blow near his neck, go to establish that all the
accused have common intention of committing the offence of
murder. Therefore, they are liable to be convicted, having the
common intention of committing the offence, as has been
proved beyond all reasonable doubts by the statements of the
prosecution witnesses."
3. As per prosecution case, Ramdin (deceased) his brother Ketar
(injured), accused, complainant and witnesses belong to 'Mangta
Community'. All these persons were living in their huts, near Banthara
4. Ramdin and Ketar were having sister, Sarjoo, whose husband died
and, she was living in a nearby hut. Her elder daughter, Samrata was
married to Budhu. Marriage of her younger daughter, Rambeti was
arranged and settled by Ramdin and Ketar in village, Kharika. On the
date of incident, Barat was to come as marriage was scheduled. At
around, 8.30 p.m., when music was being played, two petromaxes
were burning and arrangements were being made of food etc., for the
guests etc., accused Budhu, followed by present appellants, came
there having an open knife in his hand. He challenged that he would
not allow Rambeti to get married in village Kharika from where Barat
was coming.
5. It is said that when deceased, Ramdin and his brother, injured,
Ketar tried to caution and make him understand not to make any
disturbance/turbulence in marriage, Ram Khelawan snatched the knife
from Budhu and gave knife blow on left hand of Ketar. Ramdin
intervened to save his brother and apprehend, accused, Ram
Khelawan, Budhu and Ram Dutt caught hood of his hands and Ram
Khelawan gave knife blow on neck of Ramdin, who instantly fell
down. All the accused fled away from the place of occurrence towards
6. FIR of the incident was lodged on same day at Banthara Police
7. Injured Ramdin and Ketar were sent to Sarojini Nagar Primary
Heath Center for medical aid. Since Ramdin's condition was serious,
he was referred to Balrampur Hospital where he died next morning
i.e. on 29.11.1980. After investigating the offence, charge-sheet was
filed. The accused denied charges and demanded for trial.
8. Deceased, Ramdin was initially medically examined at 9.30 p.m.
and Doctor found incised wound 3/4"x1/4" into muscle deep on the
lower part of front of middle of neck with bleeding.
9. Injured, Ketar was medically examined at 12.30 a.m. on
intervening night of 27/28.11.1980, and the Doctor found him to have
suffered incised wound 1"x1/4" into muscle deep on the dorsal surface
of left hand and one abrasion 1/4"x1/8" on the tip of left middle
10. During the course of postmortem examination of deceased,
Ramdin, which was conducted on 29.11.1980, following antemortem
injures were noticed on his body:-
1. Stitched wound 2 cm. long with one stiph on the base of the
neck left side 0.5 cm. Left to the supra esternal notch.
2. Multiple abraded contusion in an area of 5 cm. X 2.5 cm. On
the back of left elbow.
3. Abraded contusion 1.5 cm. X 0.5 cm. on the front of right leg
26 cm. below right knee.
11. As per opinion given by the Doctor, the death was caused as a
result of shock and hemorrhage due to injury no. 1, which was
sufficient in ordinary course of nature to cause death.
12. Prosecution, to prove its case, examined injured, Ketar as PW-1
and Prabhudin as PW-2, Dr. S.H.A. Rizvi, the then Medical Officer,
who was posted at PHC, Sarojini Nagar, who initially examined Ketar
and Ramdin on 27.11.1980, as PW-3, Dr. V.P. Singh, Medical Officer,
posted at Civil Hospital, Lucknow, who conducted postmortem
examination of deceased, Ramdin, as PW-4, Mr. Ram Singh, Head
Constable, who was posted as Head Mohrir at Police Station Banthara
on 27.11.1980 and prepared chick report, Exhibit Ka-1, as PW-5, and
Mr. Sukh Dev Pandey, Sub-Inspector, who conducted inquest, as PW-
6. Mr. Biraj Shyam Mishra, the Investigating Officer who completed
investigation, as PW-7.
13. After the prosecution evidence got concluded, statements of
accused were recorded under Section 313 CrPC.
14. Since one of the appellants, Ram Khelawan was absconding, the
present appeal filed by him and Ram Dutt was disconnected from
Criminal Appeal No.685 of 1982 filed by Budhu.
15. This Court has already discussed the evidence in the judgment and
order dated 06.04.2018 passed in Criminal Appeal No. 685 of 1982
and, therefore, no useful purpose would be served by extracting the
evidence on hereunder. It would be suffice to note that the place of
incident, manner in which the incident was caused, presence of the
accused and role played by them in furtherance of common intention
is fully established by injured witness and independent witness and
the evidence of two doctors, who initially conducted the medical
examination of the injured and postmortem examination of the
deceased respectively.
16. The prosecution story gets corroborated by the medical evidence
as well. There is direct evidence of injured and eye-witness, who have
fully supported the prosecution case.
17. Mr. Rajesh Kumar Dwivedi, learned Amicus, however, has
submitted that the judgment and order dated 06.04.2018 passed in
Criminal Appeal No. 685 of 1982 preferred by co-accused, Budhu
would not be binding on the present accused-appellants. This Court
should examine their case irrespective of finding recorded in the said
judgment and order. It has been further submitted that no motive is
coming forth for committing the offence by the appellants, Ram
Khelawan and Ram Dutt. As per the prosecution case, it was Budhu,
who was aggrieved by settling of marriage of Rambeti, his sister-in-
law, in village Kharika and, he came with knife. It has been further
submitted that it does not appeal to reason that Ram Khelawan would
snatch knife from Budhu and give fatal blow on deceased, Ramdin
and injure Ketar. It has been further submitted that accused, Ram Dutt
has been assigned role of catching hold of the deceased and there is no
reason to believe that the accused, Ram Khelawan, and Ram Dutt
would have common intention of committing murder of Ramdin.
There is nothing on record to suggest that the accused had come
prepared to commit the offence or there was premeditation/prior
meeting of minds of the accused for commission of offence. He has
submitted that it would not be proper to convict appellant, Ram Dutt
with aid of Section 34 IPC for offence under Section 302 IPC as role
assigned to him of catching hold of the hand of the deceased only
single blow was given on deceased, Ramdin and that too by appellant,
Ram Khelawan. Except for role of catching hold of appellant, Ram
Dutt, no other role has been assigned to him. Therefore, it has been
submitted that since there was single injury which was caused to
deceased, Ramdin by accused Ram Khelawan and Ramdin died on
next day, it is a fit case where appellant, Ram Khelawan and Ram
Dutt should be convicted under Section 304 IPC and not under
Section 302 IPC, even if the prosecution story is believed.
18. On the other hand, Mr. Umesh Verma, learned A.G.A., has
submitted that this Court, while analyzing the evidence on record, has
specifically held that the prosecution case was fully proved by
evidence on record. This Court also held that all the three accused had
common intention for committing murder and, therefore, this Court
cannot review the judgment in which specific finding that all the three
accused had common intention for committing murder has been
recorded. This Court is neither sitting in appeal nor in review against
the judgment and order dated 06.04.2018 and, therefore, the findings
recorded in judgment and order dated 06.04.2018 passed in Criminal
Appeal No.685 of 1982 are binding in the present appeal, and a
different view cannot be taken. Mr. Verma has further submitted that
even otherwise, when the prosecution has established the role of
giving knife blow by Ram Khelawan and catching hold by Budhu and
Ram Dutt, it cannot be said that all the three accused did not have
common intention to cause death of Ramdin. It is submitted that
common intention could develop instantly. Ram Khelawan assaulted
Ketar after snatching knife from Budhu and when Ramdin tried to
save him, accused Ram Dutt and Budhu caught hold of Ramdin and
accused, Ram Khelawan gave fatal blow as a result thereof, he died. It
has been further submitted that the Doctor had opined that injury no. 1
suffered by deceased, Ramdin was sufficient in ordinary course of
nature to cause death. It has been further submitted that there is no
ground to interfere with the conviction and sentence of the accused-
appellants by the trial Court and the appeal is liable to be dismissed.
19. We have considered the submissions advanced by the learned
amicus and learned Government Counsel.
20. Section 34 of the IPC creates a deeming fiction by infusing and
importing a criminal act constituting an offence committed by one
into others. It is for the prosecution to prove the common intention to
the satisfaction of the Court.
21. This Court in its judgment and order dated 06.04.2018 passed in
Criminal Appeal No.685 of 1982, after analyzing the evidence in
detail, has held that all the three accused had common intention to
commit murder of the deceased.
22. The Supreme Court in recent judgment (2022) 2 SCC 545
(Jasdeep Singh alias Jassu Vs. State of Punjab) has held that
common intention to commit an offence is a team effort akin to a
game of football involving several positions manned by many. It
would be apt to extract few paragraphs from the said judgment
"22. It is a team effort akin to a game of football involving
several positions manned by many, such as defender, mid-
fielder, striker, and a keeper. A striker may hit the target, while
a keeper may stop an attack. The consequence of the match,
either a win or a loss, is borne by all the players, though they
may have their distinct roles. A goal scored or saved may be the
final act, but the result is what matters. As against the specific
individuals who had impacted more, the result is shared
between the players. The same logic is the foundation of
Section 34 IPC which creates shared liability on those who
shared the common intention to commit the crime.
23. The intendment of Section 34 IPC is to remove the
difficulties in distinguishing the acts of individual members of a
party, acting in furtherance of a common intention. There has
to be a simultaneous conscious mind of the persons
participating in the criminal action of bringing about a
particular result. A common intention qua its existence is a
question of fact and also requires an act “in furtherance of the
said intention”. One need not search for a concrete evidence,
as it is for the court to come to a conclusion on a cumulative
assessment. It is only a rule of evidence and thus does not
create any substantive offence.
24. Normally, in an offence committed physically, the presence
of an accused charged under Section 34 IPC is required,
especially in a case where the act attributed to the accused is
one of instigation/exhortation. However, there are exceptions,
in particular, when an offence consists of diverse acts done at
different times and places. Therefore, it has to be seen on a
case-to-case basis.
25. The word “furtherance” indicates the existence of aid or
assistance in producing an effect in future. Thus, it has to be
construed as an advancement or promotion.
26. There may be cases where all acts, in general, would not
come under the purview of Section 34 IPC, but only those done
in furtherance of the common intention having adequate
connectivity. When we speak of intention it has to be one of
criminality with adequacy of knowledge of any existing fact
necessary for the proposed offence. Such an intention is meant
to assist, encourage, promote and facilitate the commission of a
crime with the requisite knowledge as aforesaid.
27. The existence of common intention is obviously the duty of
the prosecution to prove. However, a court has to analyse and
assess the evidence before implicating a person under Section
34 IPC. A mere common intention per se may not attract
Section 34 IPC, sans an action in furtherance. There may also
be cases where a person despite being an active participant in
forming a common intention to commit a crime, may actually
withdraw from it later. Of course, this is also one of the facts
for the consideration of the court. Further, the fact that all
accused charged with an offence read with Section 34 IPC are
present at the commission of the crime, without dissuading
themselves or others might well be a relevant circumstance,
provided a prior common intention is duly proved. Once again,
this is an aspect which is required to be looked into by the court
on the evidence placed before it. It may not be required on the
part of the defence to specifically raise such a plea in a case
where adequate evidence is available before the court."
23. The essence of Section 34 IPC is consensus of minds of the
persons participating in a criminal action to bring about a particular
result. It does not create any distinct offence but lays down the
principle of constructive criminal liability. The facts of this case
would disclose that all the three accused had participated in
commission of the offence inasmuch as two of them caught hold of
the deceased and one gave fatal blow on neck as a result thereof
deceased, Ramdin died. According to Doctor, who conducted autopsy
on dead-body of the deceased, the injury caused on neck of Ramdin
was sufficient in ordinary course to cause death. There is no hard and
fast rule that in case of single injury, provisions of Section 302 IPC
would not be attracted. It would depend upon facts of each case,
nature of injury, part of body where injury is caused, weapon used in
causing such injury to ascertain intention of causing death. Therefore,
the submission of learned Amicus that since single injury was caused
on neck of the deceased, the accused did not have intention to cause
death does not appeal to us.
24. The Supreme Court in (2020) 9 SCC 524 (Stalin Vs. State
Represented by the Inspector of Police) noted down on this issue,
the observations in AIR 1958 SC 465 (Virsa Singh Vs. State of
Punjab) and held in paragraph 7.2 as under:-
"7.2 From the above stated decisions, it emerges that there is no
hard and fast rule that in a case of single injury Section 302 IPC
would not be attracted. It depends upon the facts and
circumstances of each case. The nature of injury, the part of the
body where it is caused, the weapon used in causing such injury
are the indicators of the fact whether the accused caused the
death of the deceased with an intention of causing death or not.
It cannot be laid down as a rule of universal application that
whenever the death occurs on account of a single blow, Section
302 IPC is ruled out. The fact situation has to be considered in
each case, more particularly, under the circumstances narrated
hereinabove, the events which precede will also have a bearing
on the issue whether the act by which the death was caused was
done with an intention of causing death or knowledge that it is
likely to cause death, but without intention to cause death. It is
the totality of the circumstances which will decide the nature of
offence."
25. Accused, Ram Khelawan had given knife blow on neck of the
deceased which resulted into death of deceased on next day.
Considering the opinion of the Doctor, weapon used in committing
offence and body part where knife blow was given, this Court is of the
view that the accused had intention to cause death while the deceased
was caught hold by two other co-accused. In view thereof, this Court
does not find any ground to take a different view than the view which
has been taken in Criminal Appeal No.685 of 1982. In the result, this
appeal also fails and is hereby dismissed. However, considering the
fact that the incident took place in the year 1980. The appellants are in
their advance age and, therefore, the State Government should
consider their case for remission expeditiously, taking into
consideration their advance age and their conduct in jail etc. in
accordance with law.
26. We appreciate valuable assistance rendered by Mr. Rajesh Kumar
Dwivedi, learned Amicus and Mr. Umesh Verma, learned A.G.A.
during the course of hearing of this appeal.
27. We fix Rs.11,000/- to be paid to learned Amicus as fee, for
assisting the Court.
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The Allahabad High Court on Wednesday upheld the life sentence of two accused in connection with a murder case that dates back to the year 1980. The Court, however, directed the state government to consider their case for remission.
The Bench of Justice Dinesh Kumar Singh and Justice Attau Rahman Masoodi asked the state government to take into account their advanced age and their conduct in jail etc while considering their case for remission.
The case against the accused
As per the prosecution case, Ramdin (deceased) his brother Ketar (injured), the accused, complainant, and witnesses belong to 'Mangta Community'. On the date of the incident, the younger sister of the deceased and injured Sarjoo was to get married to a person from Kharika.
Accused/Budhu (husband of the elder sister of the deceased and injured person), followed by Ram Khelawan (appellant no. 1), and Ram Dutt (appellant no. 2) came there having an open knife in his hand. Budhu challenged that they would not allow the girl to get married in village Kharika from where Barat was coming.
Further, when the deceased (Ramdin) and his brother Ketar (injured) tried to caution and make him understand not to make any disturbance/turbulence in the marriage, however, Ram Khelawan (appellant no. 1) snatched the knife from Budhu and gave knife blow on the left hand of Ketar.
Ramdin (deceased) intervened to save his brother and apprehend the accused, and that is when, Ram Khelawan, Budhu, and Ram Dutt caught the hood of his hands and Ram Khelawan gave a knife blow to the neck of Ramdin, who instantly fell down. All the accused fled away from the place of occurrence thereafter.
Ramdin died and after investigating the offence, charge-sheet was filed. After the trial, the Additional Sessions Judge, Lucknow convicted the accused, Ram Khelawan (appellant no. 1) under Section 302 IPC and accused Budhu and Ram Dutt (appellant no. 2) under Section 302/34 IPC and sentenced them to undergo life imprisonment.
Court's observations
Taking note of the evidence, circumstances, and facts of the case, the Court noted that all the three accused had participated in the commission of the offence inasmuch as two of them caught hold of the deceased and one gave a fatal blow on the neck as a result thereof deceased, Ramdin died.
The Court observed that according to the Doctor, who conducted an autopsy on the dead body of the deceased, the injury caused to the neck of Ramdin was sufficient in the ordinary course to cause death.
"Accused, Ram Khelawan had given knife blow on neck of the deceased which resulted into death of deceased on next day. Considering the opinion of the Doctor, weapon used in committing offence and body part where knife blow was given, this Court is of the view that the accused had intention to cause death while the deceased was caught hold by two other co-accused," the Court remarked as it upheld the trial court's order and judgment.
However, considering the fact that the incident took place in the year 1980 and that the appellants are in their advanced age and, therefore, the Court directed the State Government to consider their case for remission expeditiously.
Case title - Ram Khelawan And Another v. State of U.P [CRIMINAL APPEAL No. - 674 of 1982]
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Judgment reserved on: 22.12.2021
% Judgment delivered on: 02.05.2022
Through: Md. Azam Ansari, Advocate with
Mr. Ashfaqu e Ansari, Advs.
Versus
Through: Mr. Gaurav Goswami with Mr. Tarun
Goomber and Mr. Pankaj Mendiratta,
Advs.
1. The appellant/husband preferred this appeal under S ection 19 of
Family Courts Act, 1984 to quash and set aside the judgment dated
10.08.2021 passed by learned Principal Judge, Family Court, South District,
Saket Courts, Delhi in HMA No. 388 of 2011 titled as Smt. Preeti Sharma
Vs Sh. Sunil Kumar Sharma . The Family Court granted divorce by the
impugned judgment in favour of the respondent/wife under Section 13(1)(ia)
of the Hindu Marriage Act, 1955 (hereinafter referred as HMA).
2. The necessary facts giving rise to the present appeal are that the
marriage between the appellant and the respondent was solemnized on
22.05.1997 as per the Hindu rites and ceremonies at respondent’s father’s
house in New Delhi. The parties cohabited as husband and wife , and two
daughters were born out of the wedlock.
3. Soon after the marriage, the relationship between the couple turned
sour. Marital differences cropped up between the parties and t he divorce
petition was preferred by the respondent on grounds of continuous acts of
cruelty inflicted by the appellant upon the respondent. The Family Court
allowed the divorce petition against the appellant by the impugned
judgment.
4. The appellant in the present appeal alleges that the Family Court has
erred in striking out the defence of the appellant, and not allowing the
appellant to lead his defence evidence, and granted divorce by relying on the
allegations of the respondent, which are contrary to submissions on record.
5. The issues which require adjudication in this case are as follows:
(i) Whether the Family Court was right in striking off the defence of the
appellant?
(ii) Whether the respondent/wife was able to prove the charge of cruelty
with cogent evidence against the appellant/husband before the Family
Court?
6. The appellant and the respondent appeared before us, and we
interacted with them, with a view to explore the possibility of reconciliation.
The parties agreed to appear before the Delhi High Court Mediation and
Conciliation Centre to settle their dispute with regard to the alimony and
maintenance for both the daughters. However, the parties could not reach to
a settlement, and the matter was referred back to the court. Accordingly, we
heard the submissions of the parties on merits and reserved judgment.
7. After the relations between the pa rties soured, the respondent wife
initiated a proceeding under Section 12 of the Protection of W oman against
Domestic Violence Act, 2005 (hereinafter referred to as DV Act), which is
pending adjudication before learned MM, Saket Courts, South District,
Delhi. It is submitted by the learned counsel for the respondent that d ue to
societal pressure , it took so long for the respondent to take the first step and
file the said case. In the aforesaid case, vide order dated 15.04.2010, the
learned MM granted i nterim relief to the respondent and directed the
appellant to leave the shared household and refrain from visiting the school
of the children. Hence, on 18.04.2010, the appellant left the house of the
petitioner /respondent and till date they have been living separately . The
submission of the respondent is that the said order was passed, a fter the
learned MM was satisfied that the respondent was subjected to cruelty by
the appellant . Thereafter, the appellant preferred an appeal against the
aforesaid order, whi ch was dismissed vide order dated 27.08.2015 by the
learned ASJ, Saket Court s, Delhi. The respondent, thus submits, that the
finding of cruelty against the appellant stood affirmed and became final. As
a counter blast to the case under DV Act, the appell ant also filed a complaint
against the respondent and her father.
8. The respondent then filed the divorce petition based on the order
dated 15.04.2010 of the learned MM on the prima facie findings of cruelty
meted out by the appellant.
9. The appellant denied the allegations of the respondent. He claimed
that the respondent harassed the appellant mentally and physically , and, in
fact, appellant helped the respondent overcome her family’s debt, and
always took care of all the expenditures , and has been a doting father. He
claimed that the respondent is obsessed with her colleague , who is also a
Radha Swami follower, and t he allegation s of the respondent are only aimed
to remove the appellant from the family , and deprive the daughters of the
love of their father.
10. It appears that an application was filed before the Family Court by the
appellant for grant of 8 weeks’ time to file his evidentiary affidavit, wh ich
was dismissed by the Family Court vide order dated 13.07.2021. The Family
Court then proceeded to adjudic ate the matter in the absence of any defence
evidence of the appellant . The appellant has challenged the judgment of the
Family Court on the grounds that the Family Court did not allow the
appellant to lead his evidence and decided the petition without giv ing him
any opportunit y to defend his case. He submits that serious injustice has
been caused to him by not allowing him to submit his evidentiary affidavit ,
and striking off his defence vide order dated 23.07.2021 .
11. The learned counsel for the appellant further submitted that Family
Court was wrong in dismissing the application of the appellant for grant of 8
week s to file his evidentiary affidavit along with relevant documents . He
submits that the Family C ourt is obligated to allow all evidence , irrespecti ve
of it being admissible or relevant; it is the duty of the family court under
Section 14 of the Family Court Act, 1984 to admit all documents and decide
the admissibility or relevance of those documents while adjudicating the
matter before it. Learned counsel for t he appellant relied on decision of
learned Single Judges in Deepali Santosh Lokhande v. Santosh Vasantrao
Lokhande, (2018) 1 Mah LJ 944 (Bom) and Deepti Kapur v. Kunal, AIR
2020 Del 156.
12. The learned counsel for the appellant further submitted that the
Family Court granted divorce to the respondent on false allegation raised by
the respondent, solely relying on the submissions of the respondent. It is
further submitted that the allegations of cruelty levelled against him by the
respondent could n ot have been established from the pleadings or evidence
on record .
13. On the other hand, learned counsel for the respondent submitted that
the respondent filed her evidentiary affidavit in the divorce petition,
where after she was cross -examined by the counse l for the appellant . The
respondent closed her evidence in the affirmative on 26.06.2021. The
Family Court on 13.07.2021, granted 3 days time to the appellant to file his
evidentiary affidavit, which was challenged by the appellant before this
Court in CM (M) No. 436/2021. This court on 15.07.2021, directed the
Family Court to adjudicate the divorce petition , and the connected
maintenance petition on merits before 14.08.2021 , and time granted to the
appellant for filing his affidavit was extended by 10 days . The appellant
challenged the said order before the Supreme Court by filing SLP (Civil)
No. 11118/2021, which was dismissed as withdrawn. The appellant failed to
file his evidentiary affidavit within the time granted by this court vide order
dated 15.07.2 021. Later, his defence was also struck off by the Family Court
for repeated non -compliance of orders. In the aforesaid background, the
appellant’s written statement was perused by the Family Court before
pronouncing the judgment.
14. We have considered the su bmissions of the learned counsels for the
appellant and the respondent, and we have gone through the impugned
judgment and documents placed on record.
15. First and foremost, it is pertinent to mention here that while rejecting
the plea of the appellant by ord er dated 13.07.2021, the Family Court
observed that the fresh documents cannot be filed at the stage of evidence
and are required to be filed along with the reply or written statement, “One
party cannot file fresh documents on basis of the cross -examinatio n of the
opposite party” . The appellant c hallenged the aforesaid order before this
Court without success , and later , before the Supreme Court, which petition
was dismissed as withdrawn . The appellant was granted time to file h is
evidentiary affidavit , and only his plea to file additional documents was
rejected , but the appellant failed to file his evidentiary affidavit within time.
16. Order 8 Rule 1A (1) of Civil Procedure Code , 1908 ( hereinafter
referred to as CPC) mandates the defendant to file the document s in his
possession at the time of filing the written statement. In case the defendant
fails to file such document s at the time of presenting the written statement,
then the same shall not be allowed to be received in evidence on behalf of
the defendant. Filing of additional documents by the defendant can be
permitted only with the leave of the court.
17. Section 14 of the Family Court s Act, 1984 empowers the Family
Court to receive any evidence, whether or not the same is relevant or
admissible under the Indi an Evidence Act if, in its opinion the same would
assist it to deal effectually with the dispute before it . However, the Family
Court is deemed to be a Civil Court and pr ovisions of CPC apply to the
proceedings before it by virtue of Section 10 of the Fami ly Courts Act .
Section 14 cannot be read as an exemption from the application of Order 8
Rule 1A (i) of the CPC. The issue before the Family Court was not about
the admissibility of the documents, but about the belated stage at which the
appellant sought to bring the same on record.
18. A bare perusal of the order dated 23.07.2021 shows that the appellant
preferred an appeal before this Court, against the order of the learned MM in
Domestic Violence case for payment of maintenance to the respondent. On
31.10 .2018, this Court directed the appellant to pay the arrears within six
months, over and above the monthly allowances , on or before 15.11.2018.
The appellant filed Crl. M. C. 4816/2015 before this Court, for extension of
time to comply with the aforesaid ord er. On 03.05.2019, the said petition
was dismissed and no extension of time was granted. Thereafter, the
appellant challenged t he said order before the Supreme Court in SLP No.
4980/2019 . The same was dismissed vide order dated30.05.2019 , wherein,
the Cour t observed: “Having heard the learned counsel appearing on behalf
of petitioner and upon perusal of the record, no case is made out to interfere
in view of the specific undertaking given by the petitioner. Hence, the
special leave petition is dismissed ”, although the Court extend ed the period
for three months i.e. 30.08.2019 , for payment of the maintenance amount .
The appellant again approached this court to extend time to pay Rs. 1 lakh.
He was directed to pay Rs. 25000 by 30.06. 2021, and remaining amount
within three weeks, which the appellant did not pay. This Court vide order
dated 11.05.2021 in CM (M) 368/2021, gave him last and final opportunity
to pay the amount , failing which , the court decided to proceed on merits.
The a ppellant failed to comply wit h various orders of this Court, as well of
the Supreme Court, and the Family C ourt qua payment of the maintenance
and preferred to indulge in frivolous litigations instead of paying the
outstanding maintenance amount. The appellant was directed by this cou rt to
deposit the maintenance amount, failing which the appellant shall bear the
consequences . Instead of the paying the maintenance on time, the appellant
preferred to repeatedly flout the directions of this Court. Hence, we are of
the view that the Famil y Court was justified in striking off the defence of the
appellant. The appellant was very well aware of the consequences of his
actions.
19. The Family Court in its order dated 04.08.2021, observed as follows :
“14. The contention of Ld. Counsel for the respo ndent that
order dated 23.7.2021 passed by this Court is liable to be
reviewed as alleged non -compliance of High Court orders was
not an issue on the said date before this court, is without any
merit. It is for this Court to see on every date that the orde rs of
this court and the High Courts are complied with in letter and
spirit. In case unscrupulous litigants are allowed to violate the
orders of the court, people will lose faith in the courts of justice
and jungle raj will prevail. It is the bounden duty of every Court
to see that the majesty of the court is not lowered. The orders
passed by the High Court of Delhi/Apex Court must be treated
by every litigant with utmost respect and be complied with in its
letter and spirit but in the present case responde nt has
repeatedly overlooked and neglected the compliance of the said
orders and has treated them as something written on an
ordinary piece of paper.
16. From March 2021 till date the respondent had preferred 1 0
petitions i.e. CM(M) -280/21, CM(M) -281/21 CM(M) -368/21,
1725/2021 and 3 -4 Miscellaneous Applications before the High
Court of Delhi, various applicati ons before this Court as well.
He had filed one Miscellaneous Application and 2 Petitions
before the Apex Court. This clearly shows that the Respondent
is not having any financial crunch as all the petitions preferred
by him only shows that he is in habit of luxurious litigations
instead of paying the maintenance of his own daughters, while
claiming that he is poor and ex -serviceman.”
20. The conduct of the appellant clearly shows that the appellant
deliberately and intentionally did not abide by the orders o f the Supreme
Court, this Court and the Family Court. At various instances, the appellant
undertook to make the payment and the dates were extended with his
consent, but he disobeyed the orders. Number of opportunities were given to
the appellant . However, it appears that the intentions of the appellant was
not clean from the beginning . Even after number of directions of the Courts,
the appellant casually filed petitions , without following any of the
directions.
21. In this regard, reference may be made to Bimal Chand Jain v. Sri
GopalAgarwal , (1981) 3 SCC 486, wherein the Supreme Court – while
deciding an appeal where the defence of the appellant was struck off for
default in making payment under Rule 5 of Order 15, inter alia , held as
follows:
“6. ………..Sub -rule (2) obliges the court, before making an
order for striking off the defence to consider any representation
made by the defendant in that behalf. In other words, the
defendant has been vested with a statutory right to make a
representation to the court m ust consider it on its merits, and
then decide whether the defence should or should not be struck
off. This is a right expressly vested in the defendant and enables
him to show by bringing material on the record that he has not
been guilty of the default a lleged or if the default has occurred
there is good reason for it. Now, it is no t impossible that the
record may contain such material already. In that event, can it
be said that sub -rule (1) obliges the court to strike off the
defence? We must remember th at an order under sub -rule (1)
striking off the defence is in the nature of a penalty. A serious
responsibility rests on the court in the matter and the power is
not to be exercised mechanically. There is a reserve of
discretion vested in the court entitli ng it not to strike off the
defence if on the facts and circumstances already existing on
the record it finds good reason for not doing so. It will always
be a matter for the judgment of the court to decide whether on
the material before it, notwithstandin g the absence of a
representation under sub -rule (2), the defence should or should
not be struck off.”
22. Reference may also be made to M/s Babbar Sewing Machine Co. v.
Triloknath Mahajan, (1978) 4 SCC 188. In this case, the Supreme Court,
while deal ing with Order 11 Rule 21 CPC, considered the effect of non -
compliance of order for discovery, and observed:
"25. ...….. A perusal of Order XI, Rule 21 shows that where a
defence is to be struck off in the circumstances mentioned
therein, the order would be that t he defendant „be placed in the
same position as if he has not defended‟. This indicates that
once the defence is struck off under Order XI, Rule 21, the
position would be as if the defendant had not defended and
accordingly the suit would proceed ex parte. In Sangram Singh
v. Election Tribunal1 it was held that if the court proceeds ex
parte against the defendant under Order IX, Rule 6(a), the
defendant is still entitled to cross -examine the witnesses
examined by the plaintiff........"
23. The Supreme Court in Modula India v. Kamakshya Singh Deo ,
(1988) 4 SCC 619, while dealing with the appeal, where the defence of
tenant was struck off against delivery of possession under West Bengal
Premises Tenancy Act,1956, inter alia , observed:
"24. …..,even in a case wher e the defence against delivery of
possession of a tenant is struck off under Section 17(4) of the
Act, the defendant, subject to the exercise of an appropriate
discretion by the court on the facts of a particular case, would
generally be entitled:
(a) to c ross-examine the plaintiff's witnesses; and
(b) to address argument on the basis of the plaintiff's case.
We would like to make it clear that the defendant would not be
entitled to lead any evidence of his own nor can his cross -
examination be permitted to travel beyond the very limited
objective of pointing out the falsity or weaknesses of the
plaintiff's case. In no circumstances should the cross -
examination be permitted to travel beyond this legitimate scope
and to convert itself virtually into a presen tation of the
defendant's case either directly or in the form of suggestions put
to the plaintiff's witnesses."
24. A Division Bench of this C ourt applied the ratio of the decision of
Modula India (supra) in Kulbhushan Seth v. Seema Seth &Ors ., ILR
(2008) 2 D el 698. The d efence of the appellant was struck off by the learned
Single Judge because the appellant failed to file an affidavit disclosing his
gross salary in petition for maintenance by the respondent . After referring to
the above extract from Modula India (supra), the Division Bench held as
follows :
"5. A perusal of the above judgment of the Hon'ble Supreme
Court makes it clear that the right of the defendant in such a
situation is to cross -examine the plaintiff's witnesses and to
address arguments on t he basis of the plaintiff's case. It has
also been held that in no circumstances the cross -examination
can be permitted to travel beyond the legitimate scope and to
convert itself virtually to a presentation of the defendant's case
either directly or in th e form of suggestions put to the plaintiff's
witnesses. In our view, this itself shows that the judgment of the
Hon'ble Supreme Court does not support the plea advanced by
the learned Counsel for the appellant and on the contrary
supports the stand of the respondent that the appellant's written
statement cannot be taken in account. Accordingly, there is no
merit in the appeal".
25. For the above reasons, we are of the view that the Family Court was
right in striking off the defence of the appellant qua non-payment of the
maintenance, after number of opportunities were given by various Courts.
Since, the evidentiary affidavit or additional documents that the appellant
wishes to place on record could not have been relied upon by the Family
Court, the dismissal of application to file evidentiary affidavit does not
prejudice any right of the appellant. A perusal of the impugned judgment
shows that the Family Court relied upon the written statement of the
appellant. The appellant cross examined the respondent. Since the defence
of the appellant was struck off, he was not allowed to lead his evidence or
file additional documents, representing his case, directly or indirectly.
26. Secondly, the learned counsel for the appellant submitted that the
Family C ourt relied on ser ious allegation of sexual weakness / impotency,
which was not even proved, in spite of the appellant having two daughters.
Upon perusal of the pleadings and evidence, we find that t he respondent in
her cross examination was sugge sted on behalf of the learne d counsel for the
appellant that she made false allegation , that the appellant is suffering from
sexual weakness. This was denied by the respondent. The learned counsel
for the appellant further asked the respondent to explain the sexual weakness
suffered by the appellant. The respondent answered that she was informed
by the appellant about his sexual weakness when they were not able to
consummate the marriage for approximately a week. The respondent has
reiterated the same in her pleadings , that the appell ant suffered from sexual
weakness, for that reason the marriage was consummated at a much later
date. However, as submitted by the appellant , the allegation of impotency
against the appellant, has no basis . Pertinently, there has been no mention of
the wor d „impotency‟ in the divorce petition , or the impugned judgment of
the Family C ourt.
27. The learned counsel for the appellant in the cross -examination of the
respondent suggested that she made false allegation that the appellant was
impotent. This was also d enied by the respondent. It appears that the
contention of sexual weakness was not pre ssed by the respondent , and the
Family C ourt did not rely on the said ground to grant divorce. No finding in
this regard has been returned by the Family Court against the appellant.
Thus, the aforesaid contention of the appellant cannot be a ground to set
aside the judgment of the Family Court.
28. The appellant has not disclosed any reason , or pointed out any
contradictions in the respondent’s testimony , which could create a
reasonable doubt in our mind to disbelieve the testimony of the respondent.
The appellant did not file any evidence to support his grounds or prove the
contrary. It is pertinent to mention that the respondent in her cro ss
examination , by the learned counse l for the appellant, did not falter and
withstood her testimony, which has also been appr eciated by the Family
Court in the impugned judgment. The Family Court was also of the view
that respondent proved that the co nduct of the appellant amounted to cruelt y
within the parameters of Section 13(1)(ia) of the HMA and the relevant
paragraphs from the impugned judgment read as follows:
“29. I find the testimony of PW -1 reliable and trustworthy. Her
testimony could not be shaken in the cross examination
conducted on behalf of the respondent. Respondent subjected
the petitioner and the children with immense cruelty and
deprived them for the natural love affection. He neglected his
matrimonial obligations and harassed the petitioner to such an
extent that finally sh e had to approach the Court of law for
redressal for her grievances. The petitioner has narrated
several incidents of cruelty and has relied upon documents to
prove the same. Being fed up of the cruelties subjected by the
respondent petitioner filed under D.V. Act in the Court of the
l.d. M.M. Interim relief was granted to the petitioner vide order
dated 13.04.2010 (ex. PW 1/G) where upon respondent vacated
the matrimonial house at Lodhi Road on 18.04.2010. It also
stands proved that petitioner took financi al assistance from her
father/relatives to repay respondent‟s debts and rent of the
house. The respondent forced the petitioner to shift 6 houses as
he was always in the search of a house for which he had to pay
less rent. Such an attitude of the responden t brought humiliated
to the petitioner. When the petitioner got a promotion as
Program Executive, she was not allowed to go Barelly, U.P.
The petitioner and her daughter were not taken care of by the
respondent when they were not well. The petitioner was
defamed by the respondent by alleging that she was a
characterless lady and he further taunted that both the
daughters are not his daughters and DNA test should be
conducted. He threatened the petitioner not to divorce her and
raised a demand of Rs. 50 lakh s for giving divorce. He used to
call the petitioner and her daughters as lesbians as they used to
sleep together. He used to call the petitioner Chudail and
Bhootani. To take care of her daughters, the petitioner had to
often take leave from her departmen t and she has proved
documents in this respect as Ex. PW1/F. The petitioner has
relied upon the Resume dated 01.04.2009 of the respondent
(Ex. PW/F.) wherein respondent has given details of his 10
years professional carrier in private security from 1999 ti ll
2009. In the cross examination of the respondent when he was
asked about his professional and educational qualification till
date, he deposed that he is a graduate and a diploma holder in
electrical Engineering. It appears that he deliberately did not
disclose his other qualifications as in response to question no.
3, he stated as under : -
“Ques. 3. Do you hold any other Degree
(Professional/Qualification) apart from the above mentioned
ones? If yes, kindly provide the details of the same.
Ans. During p re-release courses in the year 1992, I underwent
the training in Diploma Course and Computer and Tours and
Travel Agency management Course.”
30. Thus it stands proved that the respondent is a professionally
qualified person and was in business. He was disc harged on
31.08.1992 from Indian Air Force as a Sergeant. He has
admitted that from 2000 to 2009, he was a partner in Vigil
Services with Lt. Col. V.K. Sharma. He has admitted that ITRs
were filled by him after year 2000. In response to a question as
to wh y he has not filed ITRs, he replied that owing to his
engagement in his younger brother‟s murder case, he could not
do so. The respondent is contesting the cases filed by the
petition with full vigour and has filed multiple petitions up to
the Apex Court. The conduct of the respondent shows that he
tried to evade filing of the ITRs in order to conceal his true
income from this Court. Thus, an adverse inference is to be
drawn against him for not filing the ITRs. He has admitted in
his cross examination that since 2009 till April 2020, he had
been a part time consultant in Lucknow and Jhansi and the
income is already mentioned in his ITRs. He has not disclosed
the names of the companies and the places where he worked on
the ground that there is an oral non -disclosure agreement and
for the said reason, the names cannot be shared. The plea taken
by the respondent is not believable at all. The respondent has
deliberately not shared the details of the companies in which he
worked from 2009 till April 2020 to concea l his true income.
31. He has also invested money which stands proved vide
receipt (EX.PW 1/I) with Ambey Car Rental Pvt. Ltd. The
petitioner had also booked plots with several
developers/builders. He purchased a WagonR Car in the year
32. PW -2 Mr. H arsh has proved the income details of the
respondent since 201 -16 till 2020 -21 vide letter dated
08.07.2021 Ex. PW 2/I. For the AYs -2016 -21, total income of
the respondent as per ITR was Rs.2,68,500/ -, Rs.4,65,850/ -,
Rs.5,22,490, Rs.6,74,600/ - and Rs.5,24, 690/- respectively. As
per Ex. PW 2/2, amounts of Rs.63592/ -, Rs.1417/ -, Rs.152129/ -
and Rs. 192478/ - were deducted under Chapter V -A for the
year 2017 -2021. It appears that for these years certain
investments were made by the respondent.”
29. Thus, the respo ndent proved her ground that the appellant is earning
handsomely , and deliberately did not provide for the family and is now
avoiding paying the maintenance, by relying on the ITR details of the
appellant for the asses sment years 2015 -2021 , and receipts fr om Ambey Car
Rental Services Pvt. Ltd. However , the appellant could not prove that he was
bearing the expenditure of the family or , as submitted by him , got expensive
gifts for the respondent. The averment of the appellant that he was only
getting pension and had no other source of income was disproved by
testimony of the Tax Assistant from Income Tax department as PW -2. This
shows that the appellant is not interested in taking responsibility of his
daughters and contributing towards the family expenses. This itself would
have caused considerable trauma and harassment to the respondent, who was
single handedly shouldering the responsibility of bringing up two daughters ,
without any financial or emotional support from their father. Hence, we do
not agree with this submission of the appellant that the respondent had not
substantiated her ground of cruelty before the Family Court.
30. In A. Jayachandra versus AneelKaur (2005) 2 SCC 22, the Supreme
Court has held that the cruelty can be physical as well as mental . The Court,
inter alia, observed:
“10. The expression “cruelty” has not been defined in the Act.
Cruelty can be physical or mental. Cruelty which is a ground
for dissolution of marriage may be defined as wilful and
unjustified conduct of such character as to cause danger to life,
limb or health, bodily or mental, or as to give rise to a
reasonable apprehension of such a danger. The question of
mental cruelty has to be considered in the light of the norms of
marital ties of the particular society to which they live. Cruelty,
as noted above, includes mental cruelty, which falls within the
purview of a matrimonial wrong. Cruelty need not be physical.
If from the conduct of the spouse same is established and/or an
inference can be legitimately drawn that the treat ment of the
spouse, about his or her mental welfare then this conduct
amounts to cruelty. In a delicate human relationship like
matrimony, one has to see the probabilities of the case. The
concept, proof beyond the shadow of doubt, is to be applied to
criminal trials and not to civil matters and certainly not to
matters of such delicate personal relationship as those of
husband and wife. Therefore, one has to see what are the
probabilities in a case and legal cruelty has to be found out, not
merely as a mat ter of fact, but as the effect on the mind of the
complainant spouse because of the acts or omissions of the
other. Cruelty may be physical or corporeal or may be mental.
In physical cruelty, there can be tangible and direct evidence,
but in the case of me ntal cruelty there may not at the same time
be direct evidence. In cases where there is no direct evidence,
courts are required to probe into the mental process and mental
effect of incidents that are brought out on evidence. It is in this
view that one ha s to consider the evidence in matrimonial
disputes.”
31. In V. Bhagat v. D. Bhagat , (1994) 1 SCC 337, the Supreme Court
was dealing with the divorce petition filed by husband which he amended
later from adultery to cruelty. The Court observed, as follows:
“16. Mental cruelty in Section 13(1) (i-a) can broadly be
defined as that conduct which inflicts upon the other party such
mental pain and suffering as would make it not possible for that
party to live with t he other. In other words, mental cruelty must
be of such a nature that the parties cannot reasonably be
expected to live together. The situation must be such that the
wronged party cannot reasonably be asked to put up with such
conduct and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such as to cause
injury to the health of the petitioner. While arriving at such
conclusion, regard must be had to the social status, educational
level of the parties, the societ y they move in, the possibility or
otherwise of the parties ever living together in case they are
already living apart and all other relevant facts and
circumstances which it is neither possible nor desirable to set
out exhaustively. What is cruelty in one case may not amount to
cruelty in another case. It is a matter to be Determined in each
case having regard to the facts and circumstances of that case.
If it is a case of accusations and allegations, regard must also
be had to the context in which they we re made. ”
32. The Family C ourt granted divorce to the respondent under Section
13(1) (ia) of the HMA solely relying on ground of „mental cruelty‟. The
Family C ourt considered the said aspect in the impugned judgment as
follows :
“36. All the suggestions put to PW1 regarding the defence of
the respondent have been denied by her. Mental cruelty and its
effect cannot be stated with arithmetical accuracy. It varies
from individual to individual, from society to society and also
depends on the status of the persons. What would be mental
cruelty in the life of two individuals belonging to a particular
stratum of the society my not amount to mental cruelty in
respect of another couple belonging to a different stratum of
society…….”
The Family Court also relied on the judgment of this Court in Hema v.
Harish Aggarwal , MAT APP (FC) 249/2019, decided on 27.9.2019,
wherein the Court held the following:
“Ever since the decision in Dr. N.G. Dastane v. Mrs. S.
Dastane, reported as Air 1975 SC 1534, courts have
consistently he ld that that the inquiry required to be conducted
has to be as to whether the conduct of a spouse alleged as
cruelty, is of such a character as to cause a reasonable
apprehension in the mind of the petitioner that it would be
harmful or injurious for him t o continue living with the
respondent. The courts are not dealing with ideal husbands and
wives, but disputant couples. Cruelty would always depend
upon the social background of the parties, their way of life,
relationship, temperament and emotions. We are of the opinion
that in the present case, the conduct of the appellant that in the
present case, the conduct of the appellant/wife has been
disclosed to be of such a quality, magnitude and impact as to
have caused mental pain, agony and suffering to the
respondent/husband on a regular and continuous basis, which
clearly amounts to cruelty. The learned Family Court had
rightly granted a decree of divorce in favour of the
respondent/husband. ” (emphasis supplied)
33. Husband and wife are two pillars of the famil y. Together they can
deal with any situation, balancing the family in all circumstances . If one
pillar gets weak or breaks, the whole house crashes down. The pillars can
withstand all the abuses together , the moment one pillar gets weak or
deteriorates, it becomes difficult to hold the house together. When one pillar
gives up , and puts all the burden on the other pillar , then it cannot be
expected that one pillar will single handedly hold the house together.
34. As noticed above, we find no reason to differ wi th the view expressed
by the learned Principal Judge Family Court. The appellant had put the
entire burden on the respondent to manage the house, her job , and to look
after the children. The appellant did not take any responsibility and , on the
other hand , continuously abused the respondent and insulted her and her
family members. The appellant even disrespected her father , and doubted
the respondent’s character. The appellant demanded money to give divorce
to the respondent. He failed to discharge his duti es as a husband – and
especially as a father . Even after direction s of this Court and the Family
Court, the appellant falsified about his earnings and failed to pay the
maintenance for his daughters. Prima facie , the allegati on of domestic
violence had been proved and learned MM granted interim relief to the
respondent.
35. In A. Jayachandra versus AneelKaur (2005) 2 SCC 22 (supra) the
court has also stated that “Mental cruelty may consist of verbal abuses and
insults by using filthy language leading to constan t disturbance of mental
peace of the other party.” The aforementioned circumstances, clearly lead to
mental cruelty. No direct evidence is required, the trauma and mental
suffering undergone by the respondent , and attitude of the appellant towards
his fami ly, evidently show that the appellant has caused mental cruelty to the
appellant.
36. The Supreme Court in Sivasankaran v. Santhimeenal , 2021 SCC
OnLine SC 702, held that where the C ourt is convinced that the marriage
has broken irretrievably and there are no chances of marriage surviving , the
Court may exercise its power and dissolve the marriage . This Court in
Laxmi v. Kanhaiya Lal, MAT.APP.(F.C.) 5/2020, held as follows:
“23. When the marriage sours, the vows that the couple takes at
the time of marriage are a casualty. We take it that neither of
the parties to a marriage enters into the matrimonial bond, only
to break it later. For the said bond to breach, there are bound
to be some underlying reasons. In some cases, those reasons
may come to the surface and the court may be able to see them.
In others, they may remain latent for myriad reasons. Those
reasons would, invariably, be attributable to both the parties,
as it takes two to fight. And when the fight goes to the point of
them filing cases against each other, the situation becomes
messy and bitter for both of them. Unless the situation is
diffused early and the parties decide to reconcile and call a
truce, with passage of time, the void between them only
increases, and the feeling of love and warmth in their
relationship begins to fade. What is left is only a feeling of hurt,
hatred, disrespect, disregard and bitterness for the other. These
negative feelings and thoughts are bound to give rise to mental
trauma, harassment and cause immense cruelty to one -if not
both the parties. It is well known and medically established that
constant feeling of sorrow, hatred, stress, pain, hurt -and the
like, do also manifest in the form of serious diseases such as
heart diseases, diabetes, cancer, etc. [The same has bee n a
point of study in an article by Timothy W. Smith and Brian R.
W. Baucom, wherein it was stated that quality of intimate
relationships matters as “strain and disruption are associated
with increased risk” (of coronary heart disease)]1 . The data
from NC RB suggests that there are more suicides resulting
from unsettled marital disputes, compared to those resulting
from divorce. In our view, there is no reason, not to recognize
this as cruelty, entitling the court to pass a decree of divorce on
the ground o f cruelty.”
37. In the present case , even though the parties have been married for
nearly 24 years , they have not spent major part together as husband and
wife. They se parated on 13.04.2010, and have not lived together since. The
bond between the parties has irretrievably broken down and the respondent
was subjected to repeated harassment at the hands of the appellant, making it
impossible to reconcile their differences. We are, therefore of the view, that
the respondent has well established the ground of ment al cruelty by the
appellant, in the light of Samar Ghosh v. Jaya Ghosh , (2007) 4 SCC 511.
38. The learned counsel for the appellant has requested to modify the
decree of divorce dated 10.08.2021 passed in favour of the respondent under
Section 13(1)(ia) of the HMA , into a decree of divorce by way of mutual
consent under Section 13B of the HMA . The respondent has not consented
to divorce by mutual consent. For this reason , we cannot grant divorce by
mutual consent to the parties.
39. For all the aforesaid reasons, w e do not find ourselves inclined to
grant the appellant’s prayer against the dissolution of marriage and find no
infirmity in the impugned judgment of the learned Family Court dated
10.08.2021. Accordingly, the present appeal is dismissed.
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While dissolving a marriage, the Delhi High Court recently held that a husband and wife are two pillars of the family and neither can be expected to run a household single-handedly [Sunil Sharma v. Preeti Sharma].
A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh noted that in the present case, the husband had put the entire burden of running the house as well as looking after their two daughters on his wife.
"Husband and wife are two pillars of the family. Together they can deal with any situation, balancing the family in all circumstances. If one pillar gets weak or breaks, the whole house crashes down. The pillars can withstand all the abuses together, the moment one pillar gets weak or deteriorates, it becomes difficult to hold the house together. When one pillar gives up, and puts all the burden on the other pillar, then it cannot be expected that one pillar will single handedly hold the house together," the Bench observed.
Before the High Court, the husband had challenged an August 2021 family court order decreeing a divorce in favour of the wife on the ground of cruelty under the provisions of the Hindu Marriage Act.
The couple had gotten married in 1997, and later had two daughters. Subsequently, the relationship turned sour and the couple opted for divorce before a Saket Court, which, while decreeing divorce in the wife's favour, struck off the husband's defence.
In his plea, the husband claimed that he took proper care of his daughters and his wife, and was a doting father. He claimed to have helped his in-laws clear their debt, despite which the wife often quarrelled with him and even doubted his character. He claimed that the wife physically and mentally harassed and tortured him.
The wife alleged that her husband has not been paying for the expenses of the family and instead she had to single-handedly look after her daughters while working. She highlighted the fact that her husband had been defying court orders asking him to pay maintenance.
The husband had made a specific contention that his wife subjected him to cruelty by making claims that he was an impotent and was weak in sex. However, the Bench noted from the family court orders that the husband himself had told the wife that he had become weak in sex and thus, the couple could not consummate the marriage.
The Bench noted that the family court did not premise its orders on this contention, and in fact, did not mention impotency or anything of that sort in its orders.
After examining the material on record, the Bench concluded that it did not find any reason to differ with the view expressed by the family court.
"The husband had put the entire burden on the wife to manage the house, her job, and to look after the children. He did not take any responsibility and, on the other hand, continuously abused her and insulted her family members. He even disrespected her father, and doubted her character. He demanded money to give divorce to her and failed to discharge his duties as a husband – and especially as a father. Even after directions of this Court and the Family Court, he falsified about his earnings and failed to pay the maintenance for his daughters. Prima facie, the allegation of domestic violence had been proved by the wife," the High Court held.
The Bench noted that the marriage was broken "irretrievably" and accordingly, upheld the orders of the family court that granted divorce.
Advocates Md Azam Ansari and Ashfaque Ansari appeared for the husband. The wife was represented by Advocates Gaurav Goswami, Tarun Goomber and Pankaj Mendiratta.
Husband, wife two pillars of family; one cannot single-handedly hold the house together: Delhi High Courtreport by @NarsiBenwal https://t.co/5Y4ZZPmdvk
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Neutral Citation Number of LPA -676/2022 : 2022/DHC/005243
Date of decision: 29thNOVEMBER , 202 2
+ LPA 676/2022 & CM APPL s. 50205/2022, 50206/2022, 50208/2022
Through: Ms. Maninder Acharya, Senior
Advocate with Mr. Ishan Dewan,
Mr.V. Siddharth, Mr. Viplav
Acharya, Ms. U dita and Ms.
PriyalBopana, Advocates
versus
Through: Mr. Nisha nt Awana, Mr. G.S. Awana,
Advocates with Mr. Vaibhav Yadav,
Chief Manager, Bank of Maharashtra.
Ms. Monika Arora, CGSC with
Mr.Yash Tyagi, Mr.
ShivamRaghuwanshi, Advocates
1. Aggrieved by the dismissal of the writ petition vide Order dated
17.11.2022 passed by the learned Single Judge in W.P.(C)15854/2022, the
writ petitioner seeks to assail the said order by way of the instant appeal.
2. The facts in brief, as narrated by the App ellant, reads as follows: -
i. It is stated that the Appellant is a part of Supertech Group, which
is a real estate developer. It is stated that the Appellant
approached the consortium of Banks led by Union Bank of India
Neutral Citation Number of LPA -676/2022 : 2022/DHC/005243
and consisting of Bank of Maharashtra, Central Bank of India,
Oriental Bank of Commerce seeking financial assistance for a
project, namely, ‘Supernova’ at Sector 94, Noida.
ii. It is stated that a financial assistance of Rs.735 crores was agreed
to be lent by the consortium of Banks ,and a sum of Rs.678.22
crore was disbursed . It is stated that a term loan of Rs.150 crores
was also sanctioned by the consortium of Banks .
iii. It is stated that on 29 .09.2018, the account o f the Appellant was
classified as Non -Performing Asset (NPA).
iv. Negotiations were held between t he Appellant and the
consortium of Banks . A One -Time Settlement (OTS) was
entered into between the Appellant an d the consortium of Banks
for the sum of Rs.12 1.43 crores. The Appellant sought a
modification of theOTS and the same was modified .The amount
to be paid was reduced from 121.43 crores to Rs.120.94 crores.
The amended terms of sanction reads as under: -
Amended Terms of Sanction
Rs.120.94 crore (LB of Rs.97.33 crore plus Un -applied interest
of Rs.23.61 crore,total of Rs.120.94 crore) be accepted in full
and final settlement of the dues ofA/C -Supertech Realtors Pvt
Ltd and payable as under in line with lead banksanction: -
1. Upfront amount Rs.9.16 crore has already been received in
loan accountthrough R ERA cut back and own sources in line
with Lead Bank UBI.
2. Balance amount of Rs.111.78 crore will be paid in 24 monthly
instalments ofRs.4.66 crore after 3 months moratorium from the
date of conveying originalsanction to the borrower.
Neutral Citation Number of LPA -676/2022 : 2022/DHC/005243
3. Deferred period interest @ 1 Year MCLR i.e. 7.25% p.a. shall
be charged ondiminishing balance after 3 months from the date
of conveying of originalsanction to the borrower.
4. The monthly installment along with interest@ 1 Year MCLR
has to be paid inthe first week of the month which is to be
considered after 3 months from the dateof conveying original
sanction.
Processing fees be waived in line with lead bank sanction.
v. It is stated that the dispute arose between the Bank and the
Appellant stating that the Appellant defaulted in the payment of
monthly instalments of Rs.4.66 crores each, which was not paid
by the Appellant despite letters dated 11.10.2022, 14.10.2022
and 01.11.2022. The Appellant challenged the letters demanding
the payment s ought for by the consortium of Banks ,contending
that the amounts were not due and payable and approached this
Court by filing a writ petition with the following prayers: -
“(a) Issue an appropriate writ/order quashing the Impugned
Letters dated11.10.2022, 14.10.2022 and 01.11.2022;
(b) Issue an appropriate writ/order declaring that the
moratorium period of threemonths under the Sanction letter
dated 18.08.2022 has to be calculated from18.08.2022;
(c) Issue an appropriate writ/order directing the Respondent
to extend the periodof moratorium for a period of 6 months
from 19.11.2022;
(d) Pass any other or further orders which this Hon’ble Court
may deem fit in thepeculiar facts and circumstances of t he
present case. ”
Neutral Citation Number of LPA -676/2022 : 2022/DHC/005243
vi. The learned Single Judge dismissed the writ petition stating that
the writ petition seeks for alteration of the terms of the contract
which can only be done by way of mutual consent in terms of
Section 62 of the Indian Contract Act, 187 2. It is this order which
is sought to be challenged in the present appeal.
3. Heard learned Counsel for the parties , and perused the material on
record.
4. The facts as presented by the Appellant in the LPA shows that the
Appellant was not able to repay the loan sanctioned by the consortium of
Banks and the account of the Appellant was classified as NPA on
29.09.2018. A One -Time Settlement was actually entere d into after four
years on 15.06.2022 for an amount of Rs.121.43 crores. The Appellant sent
a letter wanting an amendment to the One -Time Settlement and the amount
was further reduced from Rs.121.43 crores to Rs.120.94 crores. Under th e
amended terms, a su m of Rs.9.1 6 crores had been received in the loan
account through RERA cut back and the balance amount of Rs.111.78 crore
was to be paid in 24 instalment s of Rs.4.66 crores after three months
moratorium from the date of conveying of original sanction to the borrower.
5. It had been contended before the learned Single Judge that since the
OTS was amended on 18.08.2022, the three months moratorium period had
to be calculated from 18.08.2022 and not from 15.06.2022 , which was the
date of the original OTS .That argument was rightly rejected by the learned
Single Judge stating that the three months moratorium was to be calculated
from the date of conveying ‘original sanction ’to the borrower which was
sanctioned on 15.06 .2022. Learned Single Judge observed that the Appellant
Neutral Citation Number of LPA -676/2022 : 2022/DHC/005243
failed to pay first instalment of Rs.4.6 6 crores by 15.09.2022, which was the
date of expiry of the moratorium and till date , had paid only Rs.2.61 crores.
6. This Court does not find any infirmity with the order of the learned
Single Judge. The amended terms of sanction made it very clear that the
amount of Rs.1 11.78 crores had to be paid in 24 instalments after three
months of moratorium from the date of conveying original sanction to the
borrower and the original sanction dated 15.06.2021. Therefore, the first
instalment was payable by 15.09.2022 which had not been paid by the
Appellant .
7. As rightly observed by the learned Single Judge , that the writ petition
was an attempt for renovation of contract which cannot be permitted in a
writ petition. It is settled law that High Courts while exercising jurisdiction
under Article 226 of the Constitution of India cannot rewrite the contract
entered into between the parties.
8. In Orissa State Financial Coporation v. Narshingh Ch. Nayak &Ors. ,
(2003) 10 SCC 261 , the Apex Court has observed as under: -
“6. The said order is under challenge in this appeal.
On a plain reading of the impugned order it is manifest
that the High Court while considering the writ petition
filed by the owner of the vehi cle for quashing of the
notice of auction -sale and for other consequential
reliefs has passed order drawing up a fresh contract
between the parties and has issued certain further
directions in the matter; the Corporation has been
directed to advance a fres h loan to the writ petitioner
to enable him to purchase a new truck; to enter into
agreement for realization of the balance loan amount
in accordance with law; to write off the remaining
amount of Rs 16,500 and to order waiving of the
interest till date et c. The order, to say the least, was
beyond the scope of the writ petition which was being
Neutral Citation Number of LPA -676/2022 : 2022/DHC/005243
considered by the High Court and beyond the
jurisdiction of the Court in a contractual matter. No
doubt, while exercising its extraordinary jurisdiction
under Article 226 of the Constitution the High Court
has wide power to pass appropriate order and issue
proper direction as necessary in the facts and
circumstances of the case and in the interest of justice.
But that is not to say that the High Court can ignore
the sc ope of the writ petition and nature of the dispute
and enter the field pertaining to contractual
obligations between the parties and issue such
directions annulling the existing contract and
introducing a fresh contract in its place. ”
9. The One -Time Settle ment which has been entered into between the
consortium of Banks and the parties is purely a contract and a borrower
cannot ask for alterations of the same by filing petitions under Article 226 of
the Constitution of India. The terms can be altered only th rough mutual
consent between the parties.
10. In view of the above, the appeal fails and the same is dismissed along
with all the pending applications.
|
The Delhi High Court recently held that a borrower cannot ask for alteration of a contract by way of a writ petition and a contract can only be altered through mutual consent between parties [Supertech Realtors Private Limited v Bank of Maharashtra].
A Division Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, therefore, rejected an appeal by Supertech Realtors against the order of the single-judge related to payment of dues by the real estate developer to a consortium of banks.
By way of background, a loan amount of ₹678 crores was disbursed by the banks to Supertech for the project named ‘Supernova’ at Sector 94, Noida.
The Court was told that Supertech was not able to repay the loan and the account was classified as a Non-Performing Asset (NPA) on September 29, 2018. A One-Time Settlement (OTS) was entered into after four years on September 15, 2022 for an amount of ₹121.43 crores.
Supertech later sent a letter seeking an amendment to the OTS and the amount was further reduced from ₹121.43 crores to ₹120.94 crores.
Under the amended terms, a sum of ₹9.16 crores had been received in the loan account through RERA cut back and the balance amount of ₹111.78 crore was to be paid in 24 instalments of ₹4.66 crores after three months moratorium from the date of conveying of original sanction to the borrower.
It was argued that since the OTS was amended on August 18, the three months moratorium period had to be calculated from August 18 and not from June 15 which was the date of the original OTS.
However, the single-judge rejected the argument stating that the three months moratorium was to be calculated from the date of conveying original sanction.
The division bench agreed with the single-judge saying that the amended terms of sanction made it very clear that the amount of ₹111.78 crores had to be paid in 24 installments after three months of moratorium from the date of conveying original sanction.
Therefore, the first installment was payable by September 15, 2022 which had not been paid by the appellant, the court said.
It agreed with the finding of the single-judge that the petition was an attempt for renovation of contract which cannot be permitted in a writ petition.
“The One-Time Settlement which has been entered into between the consortium of Banks and the parties is purely a contract and a borrower cannot ask for alterations of the same by filing petitions under Article 226 of the Constitution of India. The terms can be altered only through mutual consent between the parties.”
Therefore, the appeal was dismissed.
Senior Advocate Maninder Acharya along with advocates Ishan Dewan, V Siddharth, Viplav Acharya, Udita and Priyal Bopana appeared for Supertech.
Advocates Nishant Awana and GS Awana appeared for Bank of Maharashtra.
CGSC Monika Arora, Yash Tyagi and Shivam Raghuwanshi appeared for Centre.
|
+ W.P.(C) 3031/2020 & C.M. No. 15227/2021, C.M. No. 15228/2021
C.M. No. 15229/2021, C.M. No. 15358/2021, C.M. No. 15359/2021
C.M. No. 15360/2021, C.M. No. 15361/2021,C.M. No. 15362/2021
C.M. No. 15363/2021
versus
versus
..... Petitioner
versus
versus
..... Petitioner
versus
..... Petitioner
versus
versus
..... Respondent
versu s
..... Respondent
versus
versus
versus
..... Re spondent
versus
versus
versus
versus
versus
versus
+ W.P.(C) 5102/2021 and CM Nos. 15635/2021 & 15636/2021
versus
Petitioners
Mr. Sacchin Puri, Senior Advocate with Mr. Praveen K. Sharma and
Mr.Dhananjay Grover, Advocates for the petitioner in W.P.(C) No.
Petitioner in person in W.P.(C) No.3031/2020
Mr.Mahesh Agarwal with Mr.Rishi Agrawala, Mr.Karan Luthra, Mr.Ankit
Banati, Advs. in WP(C) No. 4970/2021, Mr. Himanshu Dagar, Adv.
Mr. Ajay Kohli, Ms. Priyanka Ghorawat, Mr. Raghav Marwaha, Adv ocates
for Delhi Heart and Lung Institute.
Ms. Prabhsahay Kaur, Advocate for in W.P.(C) No. 4971/2021
Mr. Priyadarshi Manish with Mrs. Anjali J. Manish, Advocates in W.P.(C)
No.4984/2021.
Mr. Sidharth Dave, Sr. Advocate with Ms. Varuna Bhandari w ith Ms.
Bhakti Vardhan, Mr. Tushar Thareja, Advocates in W.P.(C) No. 4985/2021
Mr. Alok Kr. Aggarwal, Adv. Ms.Anushruti, Adv. Ms. Supreet Bimbra,Adv
and Ms. Simran Arora, Advocate. In WP (C) No. 5001/2021
Mr, Sachin Datta, Sr. Advocate , Mr. G. Tushar Rao,Sr. Adv with Mr.
Dinesh Sharma, Ms. Ritika Jhurani, Ms. Jipsa Rawat, Advocates with
Mr. D.K. Baluja, Medical Director, Jaipur Golden Hospital in W.P. C Nos.
Mr. Maninder Singh, Sr. Advocate, and Mr. Aarush Bhatia, Advocat e in
Mr. Satish Aggarwala with Mr. Gagan Vaswani, Advocates in W.P.C No.
Mr. Krishnan Venugopal, Sr.Adv., Mr. Manan Verma, Adv., Mr. Aditya N
Prasad, Adv., Mr. Kaushik Mishra, Ms. Anmol Srivastava, Advs. in W.P.C
No. 5050/2 021
Mr. M.K. Gahlaut, Advocate in W.P.C No. 5081/2021
Mr. Mohit Chaudhary with Mr. Kunal Sachdeva, Advocates. In WP.C NO.
Ms. Karuna Nundy, Adv, Mr. Sarthak Maggon, Adv., Ms. Upasana, Adv. in
W.P.C No. 5102/2021
Ms. Petal Chandhok with Ms. Rupali Gupta, Advocates in W.P.C No.
Mr. Siddharth Chechani, Advocate in W.P.C No. 5103/2021
For respondents
Mr. Tushar Mehta, SGI, Mr. Chetan Sharma, ASG, Ms. Monika Arora,
Ahluwalia,CGSC Mr. Shriram Tiwary, Mr. Amit Gupta, Mr. Akshay
Gadeock, Mr. Sahaj Garg, Mr. Vinay Yadav, Advocates. For UNION OF
INDIA in all the matters.
Mr. Rahul Mehra, Senior Advocate with Mr. Satyakam, ASC , Mr. Santosh
Tripathi, SC, Mr. Gautam Narayan, ASC, Mr. Anuj Aggarwal, ASC, , Mr.
Anupam Srivastava, ASC Mr. Aditya P. Khanna , Ms. Dacchita Sahni, Ms.
Ritika Vohra and Mr. Chaitanya Gosain, Advocates for GNCTD in all the
matters.
Mr. Rajshekhar Rao, Senior Advocate (Ami cus Curiae) and Mr. Anandh
Venkataramani, Ms. Mansi Sood, Ms. Sonal Sarda and Mr. Areeb
Amanullah, Advocates in all the matters.
Mr. Anil Grover, Sr. Additional Advocate General for Haryana with Ms.
Bansuri Swaraj, Additional Advocate General for Haryana with Mr.
Siddhesh Kotwal, Ms. Manya Hasija, Ms. Ana Upadhyay, Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay Bhargav, Advocates for INOX.
Mr. Divya Prakash Pande, Adv for South Delhi Municipal Corporation.
Mr. Abhinav Tyagi, Advocate for Seth Air Product s.
Ms. Malvika Trivedi , Sr. Advocate Mr. Tanmay Y adav, Ms. Abhisree
Saujanya, Ms. Nihaarika Jauhari, Ms. Eysha Marysha, Ms. Vidhi Jain,
Advocates along with Ms. Kritika Gupta, applicant in person
Ms. Garima Prashad, Sr. Advocate with Mr. Abhinav Agrawal , Advocate
Mr. Ankur Mahindro & Ms Sanjoli Mehrotra, Advocates for intervener
Mr. Om Prakash with Mr. Pradeep Kumar Tripathi applicant in C.M. No.
Mr. Rohit Priya Ranjan, Advocate for Goyal Gases.
Mr. Abhishek Nanda, Advocate for IRDAI.
During the hearing, Dr. S. Bankata, Executive Director from Batra
Hospital informs us that there was a delay in supply of Oxygen due to
which, Oxygen supply was interrupted for about an hour and a half, which
has led to loss of 8 lives, including a doctor of the said hospital.
Mr. Mehra has just now informed us at 03:05 P.M. that he has
received an SOS message from Mr. Bidhuri, w ho is the officer tasked with
the job of ensuring supply to hospitals in Delhi , that the reserves of the
GNCTD are exhausted, and there is no supply/ minimal supply from the
plants of Linde and Air Liquide today . He has expressed serious concerns
as to ho w the Capital would tide over the shortage today, as a lot of hospitals
and nursing homes have run out of medical Oxygen, or would do so in the
coming few hours.
We direct the Central Government to ensure that NCT of Delhi
receives its allocated supply of 490 MT positively today , by whatever
means . Considering the fact that Delhi is not an industrial State, and does
not have availability of cryogenic tankers of its own which could be
requisitioned under the Disaster Management Act – like other States have
done , it falls upon the Central Government to arrange the tankers as well , so
that the allocation made to Delhi could be fulfilled, lest it remains only a
paper allocation. The Central Government shall ensure availability of
cryogenic tankers as well for the said supply.
Pertinently, the allocation to Delhi, which was earlier of 480 MT
(since 20.04.2021) , and now is of 490 MT has not been fulfilled even for a
single day . In case, this order is not implemented, the concerned officers of
the Central Govern ment viz. Mr. Piyush Goyal and Ms. Sunita Dawra shall
remain present during the hearing on 03.05.2021 . Looking to the situation,
we make it clear that we may even consider initiating Contempt Proceedings
in case of non -compliance. Mr. Ami t Mahajan shall ensure communication
of this Order to the concerned officers forthwith.
|
The Delhi High Court on Saturday directed the Central government to ensure that the national capital receives its allocated share of 490MT of oxygen.
The order was passed by a Division Bench of Justices Vipin Sanghi and Rekha Palli in a batch of petitions raising issues relating to COVID-19 management.
"We direct Centre to ensure that Delhi receives its 490MT oxygen supply today by whatever means," the Court said.
The Court noted that Delhi is not an industrial State and has no cryogenic tankers that could enable acquisition to facilitate the supply of oxygen.
Thus, fixing responsibility on the Central government, the Court said,
"It falls on the Central government to arrange tankers ..(else) it only remains a paper allocation. The allocation to Delhi has been in force from April 20 and not for a single day Delhi has received allocated supply."
The Court also clarified that in case its present direction is not complied with, the authority/Secretary has to remain present before it.
We may even consider issuing contempt proceedings, the Court added.
Even as the Additional Solicitor General Chetan Sharma sought to intervene, the Court remarked,
"Water has gone above the head. Now we mean business. You will arrange everything now..You made an allocation. You fulfill it."
ASG Sharma urged the Court not to say anything on the aspect of contempt and even requested that the order be deferred by half an hour to enable the officers to explain the position.
The requests were, however, turned down by the Court.
"Will we shut our eyes to people dying in Delhi?..Enough is enough..who is asking for a dime more than allocated?..Don't do this, Don't do that. We don't appreciate this. This is a new way of arguing that we are seeing," it stated.
The order was passed by the Court in view of Delhi government's statement that it had no oxygen reserve left to meet the SoS calls raised by hospitals. It also noted that eight deaths were reported by Batra Hospital on account of no oxygen supply for over one hour.
The Court has been hearing a batch of petitions concerning COVID-19 situation in the national capital.
Looking at the problems being faced on the supply side, the Court directed all liquid medical oxygen supplier to remain present before it through their counsel on all dates of hearing.
During the course of the hearing, Senior Advocate Rahul Mehra for the Delhi government stated that while Delhi's demand was 700MT, allocated oxygen was 490MT, out of which the suppliers had made a voluntary commitment of supply of 445MT.
The quantity on Delhi border, for today, was 312 MT only, Mehra informed the Court as he submitted that this was a deficit of over 100 MT.
"Our tankers are not given priority. There is no timing, schedule given to us. We are dealing in SoS even today. My officers will have a mental breakdown. A morally conscious person does what best he can. This can't be permitted.", he said.
The matter would be heard next on Monday i.e. May 3.
Delhi High Court also seeks data on admissions and discharge from all hospitals
The Court today also directed data with respect to daily COVID19 admissions and discharges from all hospitals in Delhi, whether government or private, starting April 1.
Specific numbers are also sought on COVID-19 patients who were/are admitted for a period beyond 10 days.
The order was passed after the Court observed that while the recovering rate is high, there appeared to be "chocking of beds".
"..every day a substantial number of beds should become available. But that does not appear to be happening. Patients who require hospitalization with oxygen support should normally be in a position to leave within 8-10 days subject to their condition..", the Court said.
Senior Advocate Rahul Mehra for the Delhi government apprehended that for whatever reasons, the turnaround time for admitted patients seemed to be in the range of 20-25 days.
The aspect of optimum utilisation of beds would be taken up on May 6.
Read full account of the hearing here:
Read the order:
Hearing will take place before Bench of Justices Vipin Sanghi and Rekha Palli. #CovidIndia #COVID19 #DelhiHighCourt
|
Through: Mr.Arvind Nigam and Mr.Dayan
Krishnan, Sr. Advs. w ith Mr.Sites h
Mukherjee, Mr.Sandeep D. Das,
Ms.Anusha Nagarajan,
Mr.Raghuvendra Singh and
Ms.Arushi Mishra, Advs.
versus
Through: Dr.Abhishek Manu Singhvi, Sr. Adv.
with Ms.Haripriya Padmanabhan,
Ms.Pooja D har, Mr.Shrutunjay
Bhardwaj and Ms.Ashima Chauhan,
Advs. for R -1
Mr.Neeraj Kishan Kaul and
Mr.Amarjit Singh Chan diok, Sr.
Advs. with Mr.Zeeshan Diwan,
Mr.Deepak Joshi and Ms.Simran
Kohli, Advs. for R -2 to 7.
This matter is being heard through video -conferencing.
I.A. 9494/2020 & 9495/20 20 (for exemption)
Exemption allowed subject to all just exceptions.
The application s are disposed of.
1. This petition h as been filed by the petitioner with the following
prayers: -
“Therefore, in the light of the facts and circumstances of the present
case, and the submissions made in regard thereto, this Hon'ble Court
may be pleased to:
a) Stay the notice issued by the R espondent No. 1 to the Petitioner
by way of email sent on 13.10.2020 purportedly terminating the
Petitioner's partnership with L&L Partners, New Delhi and all
actions taken consequent thereto;
b) Restrain the Respondent No. 1 from directly or indirectly ,
interfering with the management and /or administration, and from
participating in the affairs of the firm L&L Partners, New Delhi ;
c) Restrain the Respondent No. 1 from holding himself out as, or
representing himself to be a partner in L&L Partners, Ne w Delhi;
d) Direct the Respondent No. 1 to forthwith hand over to the
Petitioner all assets and properties of the firm L&L Partners, New
Delhi, cur rently within his possession, including ownership and
control over the website www.luthra.com ;
e) Restrain the Respondent No. 1 from accessing or using any of
the assets of the firm, including but not limited to restraining the
Respondent No. 1 from withdrawing any monies, or authorizing any
payments out of, or otherwise operating bank accounts held by the
firm, without the consent of the Petitioner;
f) Restrain the Respondents from interdicting the Petitioner's
rights to conduct and manage the affairs of the firms L&L Partners,
New Delhi, L&L Partners, Mumbai and L&L Pa rtners Litigation,
New Delhi;
g) Direct the Respondents to forthwith restore the Petitioner's
access to his firm email id - MSaraf@luthra.com and the Petitioner's
name as being part of the management on the websites of the firms,
L&L Partners, New Delhi, L&L Partners, Mumbai and L&L
Partners, Litigation, and further restrain the Respondents from
directly or indirectly, preventing or otherwise restricting the
Petition er's access to and use of the Delhi Firm's IT infrastructure
such as personal laptop, desk top, email with the domain name
@luthra.com, servers, database, software subscriptions;
h) Direct the Respondents to forthwith restore the access of all
employees and staff to, and enable use of the IT infrastructure such as
personal laptop, desktop, em ails with the domain name @luthra.com,
servers, database, software subscriptions, whose access has been
drastically blocked since 13.10.2020;
i) Direct the Respondent No . 1 to remove the 'bouncers' stationed
by him at the office of the Delhi Firm at the 1st and 9th Floors,
Ashoka Estate, 9, Barakhamba Road, New Delhi - 110001 and further
restrain the said Respondents from restricting m any manner the
Petitioner's ingress and egress to the office space at 1st and 9th
Floors, Ashoka Estate, 9, Barakhamba Ro ad, New Delhi -110001;
j) Restrain the Respondents from causing any disturbance or
damage to the office cabin of the Petitioner;
k) Direct the Respondent No. 1 to cease and desist from entering
the offices at 1st and 9th Floors, Ashoka Estate, 9, Barakh amba Road,
New Delhi - 110001, soliciting or contacting the employees, retainers,
or clients of L&L Partners, New Delhi;
1) Restrain t he Respondent No. 1 from making any representation
to any of the clients or retainers or employees of any of the firms,
L&L Partners, New Delhi, L&L Partners, Mumbai or L&L Partners,
Litigation, New Delhi, and from making any representation,
communication, filing, applications etc. to any regulatory authorities
including the Registrar of Firms, or to the media to the effec t or on
the basis that the Petitioner's partnership has been terminated, or that
the Petitioner has ceased to be a partner of any of the said firms, or
that the petitioner is not authorized to represent the said firms, and
further direct the Respondent No. 1 that if any such communication
has been made, then to forthwith withdraw the same;
m) Restrain the Respondent No. 1 from using the nam e "Luthra &
Luthra" or "L&L Partners" or any variation thereof, for carrying on
any business competing with the busin ess of L&L Partners, New
Delhi;
n) Grant ex parte ad interim reliefs in terms of the above;
o) Pass such order and any further other order a s this Hon'ble
Court may deem fit and proper in the facts and circumstances of the
present case. ”
2. In substa nce, the petitioner has ch allenged the notice , issued b y the
respond ent No.1 terminating the petitioner ’s partnership with L&L Partners ,
New Delhi.
3. I have heard Mr. Arvind Nigam, learne d Sr. Counsel for the
petitioner, Dr. Abhishek Manu Singhvi and M r. Neeraj K ishan Kaul , learne d
Sr. Counsel s for respondent No.1 for quite some time.
4. During his submissions , Mr. Nigam ha s stated that the petitioner is
ready and will ing to work out difference s with the responde nt No.1 before a
learned Mediator , prov ided a status quo ante is granted.
5. On the other hand, Dr. Singhvi and Mr. Kaul both ha ve stated that
even the respondent No1. is not averse to the mediation proces s but without
any order of status qu o ante.
6. Noting t he aforesaid submissions made by the learned Sr. C ounsel s
for the petitioner and respondent No.1 and as suggested by them for
appointing Mr. Sriram Panchu , Sr. Advocate as a Mediator, I deem it
appropriate t o direc t the petitioner and the respond ent No.1 to appear before
Mr. Sriram Panch u prefer ably to morrow i .e 17th October, 2020 by taking a
convenient time from Mr. Panchu on his mobile number being 9840055379.
If for any reason , it is inconvenient for Mr. Panchu to hold the mediation
process tomor row i.e . Saturda y, the proceedings can be held on 18th October ,
2020 i.e Sunday . Lib erty is with the Ld. Media tor to hold the proceedings
through Video Con ferencing.
7. The Ld. Mediato r shall be at liberty to fix his fee, in consultation with
the aforesaid parties , who shall share the same e qually.
8. Liberty is with the counsel s for the parties to convey this order to Mr.
Panchu through e-mail and whatsapp message. Discretion is with the parties
to e-mail a brie f note each to Mr. Panchu , in advance for his considera tion.
9. List the petition on 20th October, 20 20.
|
The Delhi High Court today ordered for the dispute between L&L Partners Senior Partner Mohit Saraf and Founder Rajiv Luthra to be decided by mediation.
The mediation will be conducted by Senior Advocate Sriram Panchu.
The matter was heard by a Bench of Justice V Kameswara Rao.
After hearing the parties at length today, Justice Rao said,
"We'll put it for mediation..if it doesn't work out, come back. I'll decide the petition."
Justice V Kameswara Rao
As per the Court's order, the mediation will take place virtually either tomorrow and day after, as per Panchu's convenience.
The Court also clarified that the fee payable to Panchu shall be shared equally by Luthra and Saraf.
At the outset of today's hearing, Senior Advocate Arvind Nigam, appearing for Mohit Saraf, said that this was not a matter that should have come to court.
Nigam then took the Court through the partnership deed of the firm and highlighted the clauses on termination and dissolution of partnership, induction of new partners, dues payable to a partner who exists etc.
While dealing with the clause on induction of new partners to the firm, Nigam stated,
"If the two [Saraf and Luthra] don't agree to induction of a partner, Luthra may give away part of his own profit to the new partner. However, this new partner will have no rights."
When the Court reconvened after the lunch break, Nigam submitted that Luthra had given notice of his withdrawal from the firm on January 6 this year.
This notice period was extended on April 4, April 30 and then again on August 30. It was last extended till October 31, he said.
Nigam said that finally, on October 12, Luthra's withdrawal from the firm was accepted by Saraf.
He went on to argue,
Speaking of Luthra's decision to remove Saraf from the partnership, Nigam argued,
"There is no consent on dissolution of firm...not only has he terminated (me), he has removed my name and removed my access to my email, papers. Entire IT infrastructure is blocked...
...I accepted his resignation but I did not block his access. A partner remains a partner till accounts are settled. He has barred me from the assets of the firm, which he cannot do. He has published it in the newspaper."
Stating that Saraf has approached the High Court to challenge this decision, Nigam said,
"Irreparable damage would be caused to all the lawyers in the firm and the clients. The balance of convenience is in my favour."
He thus sought that Saraf's access to the firm and its infrastructure be restored, and that the bouncers deployed at the office be removed.
Revealing that Luthra's decision was brought to Saraf's attention through a client, Nigam concluded,
"I am sorry that this matter has come to court. It should have been mediated and settled..I am willing to go to a time-bound mediation...subject to status quo ante."
Senior Advoate Dayan Krishnan also appeared with Senior Advocate Nigam.
Senior Advocate Neeraj Kishan Kaul then made submissions on behalf of Luthra. He was later joined by Senior Advocate Abhishek Manu Singhvi.
Accusing Saraf of leaking confidential information of the firm and sharing private WhatsApp communication with third parties, he said,
"The way out is that you [Saraf] go out. We will give what he is entitled to."
Saraf's conduct was unbecoming of a lawyer, Kaul said.
Taking the Court through the clauses of the partnership deed, Kaul said,
"The deed is replete with clauses which give power to Mr Luthra and the person who has to leave is Mr Saraf...In the event of disagreement, the decision of Luthra was final...The only person who has the right to induct new partners in case of disagreement is Luthra and not Saraf."
Kaul thus argued that in the matters of termination, the ultimate power vested with Luthra and not Saraf.
"It is not a partnership at will and only Luthra has the right to terminate or withdraw", he said.
Kaul submitted that given the circumstances, Luthra was left with no option but to terminate the partnership of Saraf. Referring to Luthra, he said,
"Here is a man who is hurt..He has always taken people along with him. He has mentored three generations of lawyers."
Asserting that Saraf's case was based on a misreading of several Whatsapp exchanges, Kaul clarified that as per the partnership deed, the only way that Luthra could exit was either through retirement or withdrawal.
Senior Advocate Abhishek Manu Singhvi, appearing for Rajiv Luthra, raised an objection at the very outset. He said,
"He (Saraf) has made persons who are not party to the arbitration agreement as parties."
Singhvi submitted that to say that Luthra intended to retire was a complete red herring.
Singhvi reiterated that in all crucial matters, including termination, the power belonged to Luthra and not Saraf.
"We are paying Rs 15 crores without being liable to pay", he said.
Both the counsel opposed passing of any orders at this stage.
They nonetheless agreed that the dispute be sent to mediation.
The two senior-most partners at L&L Partners have been embroiled in a tiff over the dilution of the firm's equity for weeks now.
The main contention in Saraf's plea before the Delhi High Court is that he cannot be summarily thrown out of the firm using strong-arm tactics.
Even as Saraf rejected Luthra's proposal that all partners holding equity dilute their stake in the firm, the latter went on to induct two equity partners into the firm.
Eventually, Saraf wrote to the corporate partners stating that he had accepted Luthra's earlier offer to retire and withdraw from the firm. He also alleged that there were "material breaches of the partnership deed" by Luthra.
In response, Luthra not only denied retiring from the law firm, but also terminated Saraf's partnership on account of the latter's "clumsy strategy" on equity dilution.
On September 24, a firm-wide Zoom conference turned a bit ugly, with Luthra and Saraf both making allegations against each other. Luthra openly spoke against Saraf and his future plans with regard to the firm, while Saraf retaliated and made some nasty remarks against Luthra.
During the call, equity partners from the Litigation Practice at L&L (Litigation Partnership) showed their support towards Luthra.
With a view to coming clean about the partnership to the lawyers at L&L, Saraf subsequently sent an email to members of the firm highlighting important clauses of the partnership deed of L&L Partners.
Read the Order:
|
Criminal Revisional
Jurisdiction
Present:
Hon’ble Mr. Justice
Subhendu Samanta.
of 2018
C.R.R. 1858 of 2018
Mrs. Nandita Sarkar
Tilak Sarkar & Ors.
For the
petitioner
Subir Banerjee
Sandip Bandyopadhyay,Adv.,
Ms. Ruxmini Basu Roy
For the Opposite Party : Mr.
Manjit Sing
, Adv
Adv.
Adv
Mr. Abhisekh Bagal, Adv
Mr. Biswajit Mal, Adv
Judgment on
Subhendu Samanta, J
This is an application U/s 482 read with Section 401 of the Code of
Criminal Procedure 1973
preferred against a Judgment and Order dated
07.04.2018 passed by the Learned Additional Sessions Judge, First Track
st
Court Howrah, in criminal appeal no. 111 of 2015 and 116 of 2015
thereby setting aside the judgment and order of awarding monitory
relief
including compensation and other relie
s to the petitioner by the order dated
07.2015 passed by the Learned Judicia
l Magistrate 4
th
Court Howrah, in
Misc case No. 269 of 2012 U/s 12 read with
ection 18,20,22,23 of the
Protection of Women from Do
mestic Violence Act 2005(PWDV Act).
The present petitioner is the widowed daughter
law of present
opposite party Nos. 1 and 2. The petitioner filed an application U/s 12 read
with Section
18,20,22,23 of the Protection of Women from Domestic
Violence A
ct 2005(PWDV Act) against the opposite party Nos. 1 and 2 before
the Learned Jurisdictional Magistrate. The Magistrate awarded monitory
relief including compensation in favour of the petitioner.
Opposite parties preferred an appeal before the Learned Sess
ions Judge
for setting aside the award; the petitioner also preferred another appeal
before the Sessions Judge, against the same order for inadequate monitory
relief.
Learned Additional Sessions Judge, First Track 1
st
Court Howrah,
heard both the appeals
and passed a common judgment thereby set aside
the judgment of the Magistrate for monitor
y relief towards the petitioner.
hereby
appeal preferred by opposite party was allowed and the appeal
preferred by the petitioner was rejected. Hence, both this crim
inal revisional
applications were preferred by the petitioner against the order of the
Additional Judge, First Track 1
st
Court,
Howrah.
oth the appeals were disposed of
by separate Judgments; however this
court
disposing of the both instant criminal revision
al
application
by this
common Judgment.
It is the case of the petitioner
that marriage between this petitioner with
Saugata Sarkar
since
deceased, the son opposite Nos. 1 and 2
was
solemnised on 10.05.200
9 according to Special Marriage Act 1954. After the
said marriage the petitioner started to reside at the house of opposite party
Nos. 1 and 2 along with her husband and in
laws. After the marriage all the
ornaments and other valuable articles which were g
ifted by the parents and
parental relations of the petitioner as well as the other gifted items were kept
at the in
laws house of the petitioner under the custody of the opposite
parties. He further argued
that a domestic relationship had cropped up
betwee
n petitioner and O.P. No. 1 and 2, during her stay at her matrimonial
home.
It is the case of the petitioner that after
few days
of marriage the
petitioner found that her husband was not physically fit and was addicted to
alcohol with other
bad
habits
e petitioner tried to her level best to
restrain her husband from taking alcohol but the same was in vain. Finally
the husband of the petitioner expired on 29.10.2010.
It is the further case of the petitioner that the opposite parties no. 1
and 2 along with other in
laws blamed the petitioner for the death of her
husband and ultimately on the next day of death of her husband, the
petitioner was forced to live her matrimo
nial home keeping all valuable
articles and ornaments with
the custody of the opposite par
es.
It is the further case of the petitioner that the parents of the petitioner
were forced to sign on some receipt and blank papers on the same day when
he was fo
rced to live her matrimonial home. It is the further case of the
petitioner that all her streedhan articles including household goods
ornaments e.t.c. were in the custody of the opposite parties and they did not
return the same to the petitioner instead of
demand. Since then the
petitioner had no other option
but
to stay with her father at Shrinath Bose
Lane
Howrah. It is the further case the petitioner that the petitioner
wrote
several letters requested the
opposite parties
to return the streedhan article
but they
did
not return
the same. They also did not hand over a copy of
death certificate of her husband in spite of several
request
s.
For which the petitioner had to lodge One G.D. with Bagnan Police
Station. It is the further case of the petitioner
that she has no sufficient
means to maintain herself and thereby completely dependent on her well
wishers and family friends.
When the opposite parties did not return the streedhan articles the
petitioner was compelled to file a criminal case U/s 406 IPC.
After filing the
criminal case and by virtue of the order of the Magistrate
some
articles were
recovered from the house of the opposite party Nos. 1 and 2. It is the further
case of the petitioner that opposite party No. 1 being the father
law
is a
mon
eyed man and an employee of UCO Bank. O.P. No. 1 is the owner of two
houses
one of which two storied and another is three storied. O.P. No. 1 has
also
some other sources of income
from which he received substantial
income. It is the positive fact of the p
etitioner that opposite parties have
several source of income wherefrom they used to earn Rs.
per
month.
It is the further fact of this case that the petitioner filed an application
before the Jurisdictional Magistrate U/s
12 read with Section
of the Protection of Women from Domestic Violence Act 2005(PWDV Act)
against the opposite parties for getting monitory relief of Rs. 15,000/
per
month and for a direction to return all streedhan articles in default
to pay a
Sum of Rs. 4,00000/
as damages and or compensation at the tune of Rs
for causing Domestic Violence. An application was also filed by
the petitioner for interim monitory relief and interim residence U/s 23 of the
The prayer of the petitioner
interim rel
ief
was turned down
against
which one criminal appeal before the Learned District Judge, was preferred.
Learned Additional District Judge, First Track 1
st
Court dismissed the
appeal and confirm the order of the Learned Magistrate. The petitioner being
agg
rieved
by
the sa
id order of the Learned A.D.J.
First Track 1
st
Court
Howrah preferred CRR No. 2846 of 2013 before this court.
One Co
ordinate
Bench of this
court disposed of the CRR with a direction that the widowed
daughter
law is ent
itled
to get maintenance from her father
law
provided contingencies as enumerated in Hindu Adoption and maintenance
Act 1956 are s
atisf
ied. Thereafter
, the present petitioner preferred an
application for amendment of the original application which were allow
ed by
the Learned Magistrate.
After conclusion of the hearing Learned Magistrate pleased to allow the
application of the petitioner partly; and directed the respondent No. 1 to pay
monthly monitory relief to the petitioner at the rate of Rs.10,000/
per
onth from date of the order with further direction to pay a sum of Rs.
of compensation
for mental torture and emotional distress
caused upon her
Being aggrieved by
and dissatisfied with
the said order opposite party
Nos. 1 and 2 preferred Crimi
nal appeal No. 111 of 2015 for setting aside the
award, the petitioner also filed another appeal before the Learned District
Judge
being Criminal appeal No. 116 of 2015 on the ground of inadequacy.
Ld. 1
st
Appellate Court initially dismissed the Cr. Appea
l No
111of 2015
and allowed Cr. Appeal No. 116 of 2015 by reducing the Amount of
compensation from Rs. 2,00000/
to Rs. 1,50,000/
Against the Order of appeals, two Revisions were preferred before this
court being No. C
2516 of 2017 and C
17. Both the
revisions were heard by a co
ordinate bench of this court and orders passed
by the 1
st
Appellate Court were set aside. The appeals were remanded back
with some specific directions.
On remand, Ld. A
, Fast Track 1
st
Court after hearing th
parties
set aside the Order
/Judgment passed by the Magistrate and thereby allowed
the Criminal Appeal No.
111/2015 and dismissed the Criminal Appeal No.
116 of 2015. Hence, these revisions.
Learned Advocate appearing on behalf of the petitioner submi
ts that
marriage between the petitioner and her husband was solemnised on
10.05.2009 her husband died on 29.10.2010. She left her matrimonial home
on the next day i.e. on 30.10.2010. He argued that actually petitioner was
forced to left her matrimonial hom
e due to the yield behaviour of opposite
parties and other in
laws, who was accusing her to be responsible for her
husband’s death. Now the petitioner is residing with her at her father’s
house had the mercy of her father. She had no sufficient means to m
aintain
herself. No material relief or help has ever been advanced by the opposite
parties towards the petitioner. Finding no other alternative she filed the
application before the Learned Magistrate with prayer for adequate reliefs
under the provisions of
Learned Advocate appearing for the petitioner further submitted that
impugned order passed by the Learned Court below is very much illegal and
cannot be
sustained in the eye of law. The observations of Learned 1
st
Appellate Court is baseless and without applying his mind and without
considering the provisions of law, he passed the impugned order. He again
argued that in passing the impugned order, Learned Court below overlook
the sufficient evidence on record whims
ically came to an improper finding.
He argued that the observation of the Learned Court below regarding the
point that widowed daughter
law is not entitled to get the monitory relief
from her parents
law, is not a basis on the proper knowledge of law
Hon’ble Apex Court in
Satish Chandra Ahuja vs. Sneha Ahuja
reported in
has specifically answered the point that the Parents
in law
can variably turned as respondents as enumerated under the provisions of
PWDV Act and daughter
law is
entitled to receive monitory relief from her
parents
law
by virtue of PWDV Act 2005.
He further argued that the observation of Learned Court below
regarding the fact that the application under the provisions of PWDV Act
was filed by the petitioner aft
er long delay and the delay has not been
properly explained as to why such delay has been caused. He argued that in
Kamatchi Vs. Lakshminaraynan
on’ble
Apex Court has formulated that
there is no limitation to file an application U/s PWDV Act.
He further
argued that the observation of the Learned Court below
regarding the issue that no Domestic Violence has been proved by the
petitioner
is also not true. The opposite party has
retained
the streedhan
of the petitioner for which she had to file a proceedin
g U/s 406 of IPC. The
Hon’ble Apex Court in
[Krishna Bhattacharya Vs.
Sarathi Chowdhury]
has specifically observed that the
retention
of
streedhan is a continuing offence.
He again argued that the petitioner has sufficiently proved before the
Learned
Magistrate
that she has no personal earning to maintain herself. On
the other hand the opposite parties failed to prove before the Learned
Magistrate regarding any income of the
petitioner. Thus, the petitioner is
entitled to get the monitory relief has per provisions of PWDV Act. He again
argued
that the impugned order passed by the Learned Appellate Court is
improper and illegal and it need be set aside.
Learned Advocate appe
aring on behalf of the opposite parties submitted
written notes
of argument and raised several points as follows. It is argued
by the O. P. That to decide this revisional application. This court has to
decide
Has the Learned Appellate Court erred in holdi
ng
that domestic violence has not been proved?
Even if it is assumed that domestic violence has
been proved, has the petitioner been able to prove
the conditions set out in Section 19 of the Hindu
Adoption and Maintenance Act, 1956(hereinafter
Has
the petitioner been able to prove any
“expenses incurred’’ or “losses
suffered” within
the meaning of Section 20 of the Protection of
Women from Domestic Violence Act (hereinafter
Whether the Hon’ble High Court, in criminal
revisionsal
jurisdiction, can go into the findings on
fact by the Learned Appellate Court by re
examining the evidence or is the Hon’ble High
Court required to only look into whether the
impugned judgment suffers from any ill
egality or
material improperity?
He furthe
r argued that Learned Appellate Court has not committed any
error in holding that Domestic Violence has not been proved because
2.1 The Learned Appellate Court has been
pleased to hold that the
petitioner
/wife has
been unable to prove domestic violence
against
the opposite parties who are her father
law
and mother
law respectively.
2.2 In this regard, the Learned Ap
pellate
Court has been pleased to hold, after a perusal
of the application under Section 12 of the DV
Act and the evidence recorded du
ring the trial,
inter alia, that:
(a) The delay in filing her application
under the DV Act complaining of domestic
violence has not been satisfactorily explained.
(b) The petitioner has sought to rely on
her oral evidence that she was in constant
communication with the opposite parties for
return of her articles but the same has not
been substantiated by any documentary
evidence, i.e., the said letters (i
ncluding
advocate’s letter) has not been exhibited in the
trial.
(c) The father of the petitioner has himself
admitted as PW2 that he gave a declaration in
writing to the panchayat that he was
voluntarily taking away Nandita to his house.
There is no proof that the petitioner
was deprived of her articles or that the
opposite parties tried to convert any such
property to their own use. The theory of
usurpation of the nuptial gifts/stridhan, by
the opposite parties, is therefore not prove
d.
(e) The evidence on record indicates
that the opposite parties’ version that the
petitioner left on her own rather than being
driven out is more believable because of:
he admission by PW 2(petitioner’s
father) about giving a de
claration in writing to
the panchayat
that he is taking away his
daughter,
(ii) no efforts taken by the petitioner or
her father to initiate any criminal action
against anybody initiated right after the
alleged incident of being driven out.
There is no averment about physical and
mental torture in the application under
Section 12 of DV Act, and only a line to this
effect was stated in the evidence on
affidavit without any details or
“foundational support”
The allegation against the opposi
te
parties of denying the petitioner a copy of
the death certificate of the deceased
husband is inconsequential since the death
certificate is a public document and can be
obtained easily.
On the basis of the above findings, the
Learned A
ppellate Court ha
s come to the
conclusion that the petitioner has not been
able to prove domestic violence either in the
form of being driven out of her matrimonial
home,
or deprivation of her articles(
since
she left her matrimonial home on her own),
or further any mental
or physical torture.
2.3 It is most humbly submitted that all of
the findings of the Learned Appellate Court
are supported by the evidence recorded in
the trial. It is pertinent to state that at the
time of argument, the Learned Advocate for
the petitio
ner has focused only on
“economic abuse” and argued that domestic
violence has been committed as she has
suffered from “economic abuse” due to
denial of her stridhan articles.
2.4 At the outset, it is stated that the key
terms in the definition of “
economic abuse”
at Section 3, Explanation I (iv) of the DV Act
are “deprivation”; “disposal”
; “prohibition or
restriction to continued access”.
2.5 It is not the case of the petitioner
that any of her items were disposed of by
the opposite parties. It is further stated that
in order to prove “deprivation” or
“prohibition” or restriction to continued
access”, the petitioner has to prove that she
was driven out of her matrimonial home. In
the event the Learned Appellate Court
comes to a finding that the petitioner has
left out of her own accord, the question
of
deprivation” or “prohibition” or restriction
to continued access “does not arise. This
is
because it was the decision of the petitioner
to leave her matrimonial home and the
opposite parties had taken no decision to
drive her out while depriving her of her
articles. It flows from the above that if the
Learned Appellate Court comes to a find
ing
that the petitioner has left on her own
accord, the question of economic abuse or
domestic violence does not arise.
2.6 it is stated that if the petitioner had
been driven out, she and her father would
have taken prompt steps to lodge a
complaint ag
ainst her in
laws. However, as
has been observed by the Learned
Appellate Court, no such steps were taken
by her. The petitioner has said during
evidence that she sent some letters
including an advocate’s
letter requesting
her in
laws to return her article
s. However,
none of these letters have been exhibited in
the trial. Perhaps, it is most important to
note that in her cross examination, the
petitioner has stated as follows:
is not a fact that my father sent to letters to the Ops for return of my
stridhan articles to me. It is not a fact that I sent two letters to the OP on
29.11.10 and 17.01.11 for claiming my remaining stridhan articles.”
This lends further weigh to the the
ory that she must have left on her
own as she has been unable to prove that she sent any letters for return of
her stridhanarticles. It is also pertinent to state that she has given oral
evidence regarding a complaint case filed by her for offence u/s 406,
IPC but
there is no way to say what the particulars of such complaint are as the same
has not been exhibited in the trial.
2.7 The Learned Appellate Court has also
sought to rely on the petitioner’s father PW2’s
evidence that “ It is a fact that I reduc
ed in
writing before Panchayat that I voluntarily
took my daughter with me” Had the
petitioner’s father been forcibly made to write
such a false declaration, naturally he would
have made attempts to inform the police
authorities or file a complaint, but it
is an
admitted position that no such efforts were
taken.
2.8 It is also pertinent to state that no local
witness, being any neighbour or resident of the
village, has been examined to support the
petitioner’s case that she was thrown out of
her matrimon
ial house.
2.9 The petitioner has sought to make out a
case during the hearing before the Hon’ble
High Court that the President of the
Panchayat. Samiti, Alok Gnguly, has exercised
his influence with the Panchayat. However, it
is pertinent to state th
at this was never the
case of the petitioner and no oral evidence to
this effect was given by any of the PWs.
Rather, it was during the cross examination of
OPW 1, the opposite party no. 1, that the name
of Alok Ganguly has come for the first time.
There i
s nothing on record or in the evidence
that indicates that he exercised undue
influence over the panchayat.
2.10 As such, upon perusal of the evidence
on record, the Learned Appellate Court came to
a finding that the opposite parties’ case that
the petit
ioner left of her own accord is more
believable than the case of the petitioner that
she was driven out.
2.11 As is stated in further detail in Section
5 of these written notes, as a Revisional court,
the Hon’ble High Court has to inquire whether
there
is a material irregularity in the finding of
the Learned Appellate Court without going in
depth into the evidence. As such, since the
findings of the Learned Appellate Court is
supported by evidence on record, it is most
humbly submitted that the same shou
ld not be
interfered with.
He further argued that the petitioner has failed to prove the conditions
set out Section 19 of Hindu Adoption and Maintenance Act 1956 for which
the petitioner is not at all entitled to get maintenance from her father
law
she specifically argued that Section
Section 19 of the HAMA provides that a
Hindu widow is entitled to maintenance by her
father
law. However, the obligation to
maintain his daughter
law is not
enforceable against the father
law if he
do
es not have any coparcenary property in his
possession from which the daughter
law
has not received a share from which to
maintain her.
ordinate Bench of this Hon’ble Court
in CRR 2846 of 2013,Nandita Sarkar nee Sen
vs. Tilak Sarkar & others
, vide order dated
28.10.2014(at page 33,Annexure
1 of CRR
1857 of 2018), arising out of this very
litigation, had stated that the petitioner
was
required to establish on evidence the
conditions laid down in Section 19 of the
HAMA. It is only if she is able toprove these
conditions would she be liable to be
maintained by her father
law under the
provisions of the DV Act.
Nowhere in the evidence on record has it
come to light
that the opposite party, father
law, has possession of any coparcenary
property. Therefore, without admitting, even if
it is assumed that the petitioner has been
successful in proving domestic violence
suffered
by her, she has not been able to show
tha
t the opposite party has any coparcenary
property, and as such, in light of the judgment
of the Hon’ble Co
ordinate Bench in CRR 2846
of 2013, she is not entitled to maintenance
from the opposite parties.
He again argued that petitioner also failed to pro
ve any “expenses
incurred” or losses suffered within the meaning or Section 20 of PWDV Act.
Thus she has not entitled to have any monitory relief. Learned Appellate
Court has correctly pointed out the same provision for
hich the petitioner
has/had no answ
er.
Lastly, Learned Advocate, appearing on behalf of the opposite parties
submitted that the Hon’ble High Court in exercising criminal revisional
jurisdiction is only required to look into whether the impugned J
udgment
suffers any illegality or improperit
y. Hon’ble high court in a Criminal
Revision cannot got into the finding of fact by the Learned Appellate Court
by re
examining the evidences on record. He pointed out that
In the instant case, the Learned Appellate
Court has reached a finding upon
examining
the evidence on record that the petitioner left
the matrimonial house on her own and
therefore the question of economic abuse or
deprivation of her stridhan articles does not
arise. To this effect, the Learned Appellate
Court has cited the lack o
f documentary
evidence seeking her stridhan articles from her
laws; as well as the petitioner’s father’s
admission that he gave an undertaking to the
panchayat that he took his daughter
voluntarily. The Learned Appellate Court has
also sought to support
his findings by stating
that no prompt steps were taken to make
suitable criminal complaints to the relevant
authorities to back the claim that the petitioner
was forcibly thrown out of the matrimonial
home on the death of her husband.
The findings
of the Learned Appellate
Court are based on cogent findings from the
evidence. It is most humbly submitted that as
a Revisional Court
, the
Hon’ble High Court
should not go into questions of
evidence.
Rather
, the Hon’ble Court is required to li
mit
itself to
whether the findings of the Learned
Appellate court suffer from material irregularity
or illegality, or whether the Learned Appellate
Court has proceeded on the basis of evidence
which is not on record, or whether the court
has ignored vital evidence on r
ecord.
Learned Advocate for the OP also cited some decisions in support of
his contention. They are state of
Maharastra Vs. Jagmahan Sing Kuldeep
Sing Anand
passed by Hon’ble Supreme Court in criminal appeal
No. 952
953 of 2004,
decided another Judgment of Hon’ble Supreme Court reportd
He also filed two ju
dgments of Hon’ble Bombay High
ourt reported in
Online Bombay 2807 and 2014ALL
MR(Cri)2398.
After going through the entire judgment laws as well as th
e argument
advanced by the parties
it would be
prudent for this court to decide
first
what are
the power of
this
ourt in Criminal Revision
al
urisdiction.
Learned Advocate for the OP’s submitted that the High Court in
Criminal revisional
urisdiction can
not go into the findings of fact of the
Learned
Appellate Court by re
examining the evidences. He further argued
that the High Court required to look into whether the impugned Judgment
suffers any illegality or material improperity.
e cited the decision o
f Hon’ble
Supreme Court in
Jagmahan Sing Kuldeep Sing Anand’s
case (supra).
Paragraph 21 and 22 of the said judgments read as follows
21. In embarking upon the minut
est re
examination of the whole evidence at the
revisional stage, the learned Judge of
the High
Court was totally oblivious of the self
restraint
that he was required to exercise in a revision
under Section 397 Criminal Procedure Code On
behalf of the accused, reliance is placed on the
decision of this Court to which one of us
(Justice Sabha
rwal) is a party, i.e. Criminal
Appeal No. 523 of 1997 decided on
[RamBriksh v. AmbikaYadav].
2004(2) RCR (Criminal) 182(SC)]
That was
the case in which the High Court interfered in
revision because material evidence was
overlooked by the courts
below.
22. The Revisional Court is empowered to
exercise all the powers conferred on the
Appellate Court by virtue of the provisions
contained in Section 410
(401?) Criminal
Procedure Code Section 401 Criminal
Procedure Code is a provision enabling the
Hi
gh Court to exercise all powers of Appellate
Court, if necessary, in aid of power of
superintendence or supervision as a part of
power of revision conferred on the High Court
or the Sessions court. Section 397 Criminal
Procedure Code confers power on the H
igh
Court or Sessions Court, as the case may be,
“for the purpose of satisfying itself or himself
as to the correctness, legality or propriety of
any finding, sentence or order, recorded or
passed and as to the regularity or any
proceeding of such inferior
court. “It is for the
above purpose, if necessary, the High Court or
Sessions Court can exercise all appellate
powers. Section 401 Criminal Procedure Code
conferring powering of Appellate Court on the
Revisional Court is with the above limited
purpose. Th
e provisions contained in Section
395 to Section 401 Criminal Procedure Code,
read together, do not indicate that the
revisional power of the High Court can be
exercised as a second appellate power.
Hon’ble Supreme Court in
Chandrababu Vs. State
as discussed about the power of High
Court in revisional jurisdiction as follows.:
“ Normally revisional jurisdiction should be
exercised on a question of law. However, when
factual appreciation is involved, then it must
plays in the accused of cases resulting in a
perverse finding. Basically, the power is
required to be exercised so tha
t justice is done
and there is no abuse of power by the Court.
The object of the revisional jurisdiction
unlike appellate jurisdiction is to correct
miscarriage of justice. Whether substantial
justice has been done is the main
consideratio
Thus, after
considering the dictum of the Hon’ble Apex court and
several High Courts in the issue of revisional power of High Court this can
be safely hold that the High Court can exercise its p
ower in Revisional
Jurisdiction
a)
Where there are illegality and improperit
in the impugned order.
b)
Where the trial court
had
wrongly shut out
the evidence.
c)
Where the Appellate Court had wrongly
hold evidences admitted by the trial court
to be inadmissible.
d)
Where
material
evidences has been
overlooked
by the Trial Court or the
ourt
of
ppeal.
e)
Where the finding of the appellate court is
so perverse that it causes miscarriage of
justice.
More emphasise has to be exercised when Appellate Court
finding
is
contrar
y to the finding
of trial court.
In the present
case the finding of trial court has been reversed by the
appellate court. Whether failure of justice has been
caused
to the litigants or
whether the order impugned is perverse or not
is the prime question here.
my view this court in exercising the Rev
isional Jurisdiction can look into
the judgments of both the trial court and Appellate Court to
apprise
the
value of the judgments on the
atrix of the facts pleaded.
Learned Appellate Court has passed the impugned order and the prayer
of the present peti
tioner was turned down on three points
The application of the petitioner before
the Learned Magistrate under the
provisions of Section 12 of PWDV Act
is filed in delay
there is no
explanation for such delay. Thus the
application for getting relief under the
PWDV Act cannot be entertained.
The petitioner cannot claim any relief
under the PWDV Act from the private
OP as private opposite party is the
father
law of the
petitioner.
The petitioner has failed to prove the
fact of Domestic Violence so she is not
entitled to get any relief
Decision on Point No.
Learned
Advocate for the opposite party submitted
that the application U/s 12 of DV Act was filed by the peti
tioner after two
years from the alleged date when she left her matrimonial home. He further
argued that the petition does not disclose the cause of delay for preferring
the application in such belated stage. He further argued that Appellate
Court is justif
ied in finding that the petitioner has failed to address the
court regarding any ground for which the petition was filed in such belated
stage.
Learned Advocate for the petitioner submitted before this court that the
petitioner was driven out from her mat
rimonial home and thereafter she was
residing on her father’s home
at
the mercy of her father. She tried to contact
several times to the opposite parties but all the times her effort was
frustrated. He again argued that there is no bar or limitation to fil
e the
application U/s 12 of PWDV Act. In support of his submission he cited a
decision passed by the Hon’ble Supreme Court in Criminal Appeal No. 627
of 2022
(Kamachi Vs. Lakhsminrayanan)
para 15 of the said judgment
read as follows:
15. Let us now
consider the applicability of
these principles to cases under the Act
provisions of the contemplate filing of an
application under Section 12 to initiate the
proceedings before the concerned Magistrate.
After hearing both sides and after taking int
account the material on record, the Magistrate
may pass an appropriate order Under Section
12 of the Act. It is only the breach of such
order which constitutes an offence as is clear
from Section 31 of the Act. Thus, if there be
any offence committed in
terms of the
provisions of the Act, the limitation prescribed
under Section 468 of the Code will apply from
the date of commission of such offence. By the
time an application is preferred under Section
12 of the Act, there is no offence committed in
terms
of the provisions of the Act and as such
there would never be a starting point for
limitation from the date of application under
Section 12 of the Act, Such a starting point for
limitation would arise only and only after there
is a breach of an order passe
d under Section
12 of the Act.
After going through the judgment of the Hon’ble Apex Court
Kamachi (supra) I am of a clear view that there is no limitation to file the
application U/s 12 of DV Act. The application filed by the present petitioner
before
the learned Magistrate is not barred by limitation. The finding of
Appellate Court regarding the fact that the application was filed in belated
stage is appears to
me
not good
one
Decision on point No. 2
A long discussion was made in the impugned
ju
dgment by the Appellate Court regarding the fact that
widowed
daughter
law is not entitled to have any relief against her father
law under the
provisions of PWDV Act.
Learned Appellate Court is also of view that it is not codified in the
PWDV itself
that the father
law can be compelled to private maintenance
to her widowed daughter
law
the widowed daughter
law may have any relief or claim over the notional
income of her decea
sed husband but not be
yond that
Ld. Court is
also
of
specific view that father
law is not primarily liable to
pay
compensation
his widowed daughter
law.
Learned Advocate for the opposite party submitted before this court
that the daughter
law is not entitled to have
any maintenance b
her
father
law under the provisions of PWDV Act. He argued that Section 19
of Hindu Adoption and Maintenance Act provides that Hindu widow is
entitled to maintenance by her father
law subject to the Limitation and
Restrictions and
Conditions as enumerated in Hindu Adoption and
Maintenance Act itself. The widowed wife has only right over the
coparcenaries property of her deceased husband. He
also
point out that
during the proceeding of the instant matter of co
ordinate bench of this
Hon’ble High court in CRR No. 2846 of 2013 vide its order dated 28.10.2014
held that the petitioner is required to establish all evidences and conditions
laid down in Section 19 of the Hindu Adoption and Maintenance Act. Thus
after such order being made t
he petitioner preferred amendment
before the
Learned Trial Court to prove the conditions as directed by the Hon’ble court.
The petitioner has failed to prove any criterian as envisaged
under the
provisions of Section 19 of HAMA Act. Thus the finding of Lea
rned trial court
is very much correct to held that the petitioner being widowed daughter
law is not entitled from her father.
Learned Advocate for the petitioner submitted before this court that
the PWDV Act
as a large scope. The neglected and destit
ute women can
claim maintenance under the PWDV Act from the respondents. The term of
respondent has been defined in the PWDV Act in a manner that the
person
having family relationship with the petitioner may be directed to pay
maintenance under the PWDV Ac
t. He further argued that an irrespective of
other provisions regarding claiming maintenance by the wife
from her
husband, the scope of PWDV Act is very wide.
He
again
argue that the
widowed daughter
law
i.e.
the petitioner is very much entitled to
main
tenance by her father
law. The question was raised before the
Hon’ble Apex court in several occasions and there were
conflicting of
judgments finally, Hon’ble Supreme court vide its order of three Judges
Bench in
Satish Chandra Ahuja vs. Sneha Ahuja (20
has
clearly held that a daughter
law is entitled to have relief under the PWDV
Act from her father
law.
Heard, the Learned Advocates perused the order passed by this
Hon’ble Court in CRR No. 2846 of 2013. A Co
ordinate bench of this court is
of
view in passing
order of a
criminal revision
that
petitioner being the
widowed daughter
law is entitled to hav
e the maintenance by her father
law subject to the conditions being fulfilled and enumerated U/s
of the
Hindu Adoption and Maintenance Act (HAMA).
I have also carefully perused
the judgment by Hon’ble Apex Court passed in
Satish Chandra Ahuja vs.
Sne
ha Ahuja
’s
case
; on
perusing the entire judgment of the Hon’ble Court it
appears to me that the Hon’ble three Judges bench is of
he
r finding that
judgment passed by Hon’ble Supreme Court in
R Batra vs. Taruna Batra
is not good
law
The Hon’ble three J
udges Bench is also categorically
pointed out
several
other issues
and
is of clear view that the daughter
law
is entitled to have the maintenance and any relief from her father
law.
The facts and circumstances
of
Satish Chandra Ahuja
’s
case and principal
thereof very much applicable in this case thus after considering the entire
circumstances and after considering the judgment of Hon’ble Apex court
three Judges bench I am of view the present petitioner being the widowed
daughter
law i
s entitled to have maintenance and other relief from her
father
law according to the provisions of PWDV Act.
The judgment of Hon’ble Apex Court in
Satish Chandra Ahuja vs.
Sneha Ahuja
(supra)
has its overriding effect upon
the finding of Co
ordinate
Be
nch of this Hon’ble Court passed in CRR 2846 of 2013.
In conclusion thereof the finding of Learned Appellate Court on point
2 as mention
ed above is not legal or proper, and it is not acceptable.
Decision on Point No. 3
Learned
Appellate
Court is o
f clear finding that the
petitioner has failed to prove Domestic Violence against the opposite parties
who
are father
law
and mother
law
respectively. On that score
Learned Appellate Court has pointed out that the oral evidence of the
petitioner re
garding her communication with the opposite parties to return
streedhan articles was not substantiated in documentary evidences. The
petitioner did not prove the fact by producing the so called Advocate’s letter
before the court and it was not Exhibited in
trial. Learned Appellate court
also hold that PW 2
that is
the father of the petitioner gave a declaration in
writing to the Panchayet that he was voluntarily taking away the petitioner
from her matrimonial home. Learned Appellate Court is also of view
that the
petitioner has failed to prove the fact that the opposite parties retained the
streedhan articles and use the same for their own use and petitioner also
failed to establish that any physical or mental torture was inflicted upon her
at her matrimon
ial home by the opposite parties. The only allegation of the
petitioner against the opposite parties is
written
on the
petition itself
it was
not proved
by adducing evidence
thus the Appellate Court is of view that the
petitioner has failed to prove the Domestic Violence.
Learned Advocate for the opposite party support
ed
the finding
of the
Learned
Appellate Cou
rt and argued that the fact of
driven out of the
petitioner from
her matrimonial home or deprivation of her streedhan
articles or any mental or physical torture was not proved by the petitioner.
He argued that the finding of the Learned Appellate Court is on the basis of
the evidence on record. It was also not proved
by
the petitioner that her
streedhan articles were disposed of by the opposite parties. The decision of
the petitioner to
leave
her matrimonial home was voluntarily
on that score
appellate court is of correct finding that the petitioner left her father
aw
and mother
law in great peril and
sorrow
when their only son died. He
further point out that the Learned Appellate Court below is
of
correct finding
that the so called letters stated in the petition itself was not exhibited by the
petitioner before t
he trial court., the petitioner left her matrimonial home on
her own accord thus the finding of Learned trial court is not
il
legal or there
is no material irregularity.
Learned Advocate for the petitioner submitt
ed before this court that the
Learned trial
court has committed error in deciding the matter
There are
sufficient materials and evidence on record to prove the fact that the
petitioner was physically and mentally tortured at her matrimonial home.
He further argued that the case of the petitioner w
as proved before the
Learned trial court by adducing sufficient evidence but the Learned
Appellate Court did not enter into the evidences adduced by the petitioner
before the Learned
trial
court below and came to an erroneous finding so his
finding is palp
ably illegal in
the eye of law.
Heard
, the Learned Advocates perused the materials on record. In
decidi
ng this point I refrain myself
to look into the evidence on record
I only
perused the Judgments and Order passed by the Learned Appellate Court
and by the Learned trial court. Learned Trial Court in passing his Judgment
is of view that the petitioner has proved the Domestic Violence against the
opposite parties
on the o
ther hand
Learned Appellate Court is of view that
the petitioner has
failed to prove
the Domestic Violen
ce against the opposite
parties
Learned Appellate Court has disbelieved the fact of the petitioner on
the basis of two points
No. 1
o Advocate’s lett
ers dated 29.11.2010 and
17.01.2011
as stated in the petition of PWDV Act was not placed before the
Learned Trial Court and it was not exhibited. No
the PW 2 i.e. the father
of the petitioner stated before the trial court that he took the petitioner fr
om
her matrimonial home voluntarily and a written undertaking was giving
before the local Pachayet to that effect. The petitioner stated in a petition
regarding the two Advocates letter
pertaining to
her demand
to return all
her streedhan articles from th
e opposite parties
aid two letters were
not produced before the Magistrate. Non production
of the
letters before the
Magistrate does
not itself disapprove the
entire facts
of the case
Non
production of the two letters may weaken the plea of petitio
ner
regarding her demand of stridhan articles from O.P.s; but it is nobody’s case
that the stridhan articles of the petitioner was not lying under the custody of
the O
s and it is also not a case that O
s ever voluntarily returned or tried
to return the st
ridhan articles to the petitioner.
The other circumstances of the cases has to be l
ooked into but the
Learned Appellate
court did
not put any emphasise to looked into other part
of the evidence
of the petitioner regarding the Domestic Violence. It was
pleaded before the trial court that the petitioner was
subjected to
physical
and mental torture at her matrimonial home
which the petitioner stated
before the trial court in trial
Entire
testimony of the petitioner
was not
considered by the Appell
ate
Court
; though it is reflected in the judgment of
the trial court
ich was not
possibly be
proved by the petitioner cannot itself disapproved the entire
case of the
petitioner. Secondly, if the statement of PW 2 is to be co
nsidered to be true
then also the fact
which was
pleaded by the petitioner regarding Domestic
Violence cannot be construed to be false.
The Appellate Court did not ever
read the judgment of trial court by observing that
The judgment under
challenge, a b
ulky affair spread over twenty two pages with only eight and a
half of them being devoted to a
lacklustre
effort at analysing the evidence
does not quali
a happy reading material.”
Learned appellate Court should
have considered the entire materials placed before him but he committed
error in pointing only
ew
co
related issues
in the petitioner’s case which
was not specifically proved.
The Domestic Violence has been defined U/s 3 of
the PWDV Act. The
Domestic Violence includes economic abuse. The deprivation of petitioner to
any economic or financial resources which the aggrieved person is entitled
under any law
is also Domestic Violence. In this case it is the fact that the
petitio
ner was deprived from her Stridhan articles since long which were
under the custody of the opposite parties. This fact tantamount Domestic
Violence. The judgment of trial court specify the reason for which he allowed
the prayer of Domestic Violence of the
petitioner. I find no infirmity in the
said finding of the Learned Trial Court.
The facts of this case is peculiar in nature. The widow left the
matrimonial home on the next day of death of her husband with an
undertaking that she left voluntarily. This f
act may have two explanations
First
widow may have felt very alone in absence of her husband and
took cozy shelter at her father’s home;
Second,
they are existed no good terms with her in
laws; that is the
lady was not well at her matrimonial home. What
prompted the OP to obtain
an undertaking at the time? Is they are in a supposition that the widow may
proceed against them for their conduct during her living at matrimonial
home? Thus, the
written
undertaking by father of the widow was obtained to
avoid f
uture complications/proposed prosecution. This conduct by the Ops
strengthen the petitioner
plea of Domestic Violence.
Considering the circumstances and materials and also considering the
impugned order passed by the Learned Appellate Court I am of a vie
w that
the Appellate Court has committed injustice in not considering the entire
petitioner’s case before him. The Learned Appellate Court has also not
clearly observed that why the observation of the Learned Trial Court is not
proper. Considering the same
it appears that the finding of Appellate Court
regarding the fact that the petitioner has not proved the Domestic Violence
against the opposite parties, is not correct.
Learned Advocate for the O
s also argued that the petitioner has failed
to prove “expe
nses incurred”
or “loss is suffered” within the meaning of
Section 20 of PWDV Act. It is admitted fact by both the parties that the
petitioner who is a widow, has no independent income. She is now residing
at her father’s home at the mercy of her father. T
he day by day expenses of
livelihood of the petitioner is not a deniable factor. She is only to
lay
her
hand to her father for
to meet
out the daily expenses. Thus the
circumstances incurred and loss suffered by the petitioner is itself proved
from the facts and circumstances of this case.
The argument advanced by
the Learned Advocate on behalf of the opposite party has no merit on that
score. Ultimately, it is the irony of fate, that instead of specific legislative
intent, the widow lady is roaming door
of Courts since long 10 years
without receiving any monetary relief.
Before concluding my observation in this case it is proper to p
oint out
that Learned Advocate appearing on behalf of the opposite party has cited
the decisions of Bombay High Court as mentioned above but the facts and
circumstances of this case are pulpably different to the facts and
circumstances of this case so, the
principal enumerated in the above
decisions are not applicable here. In
2014ALLMR(Cri)2398
the mon
etary
relief was given the wife and
the maintenance was short for on behalf of the
children and; in case of
2018SCC Online Bombay 2807
already order of
maint
enance is there in other proceeding thus, the prayer under the PWDV
Act regarding mon
ry relief was not considered.
After careful perusal of the observation of the Learned Appellate Court
it appears that the appellate court has observed regarding the sc
ope of
PWDV Act which is actually
derogatory
so far as the
purpose of enactment
of
the statute itself. In
Satish Chandra Ahuja vs. Sneha Ahuja
(supra)
three
Judges Bench of Hon’ble Supreme Court has defined the scope and purpose
of PWDV Act very precisely i
n Paragraph 28,29,30,31 and 32 which is
read
as follows:
28. Before we consider the questions as noted above,
we need to notice the statutory
Scheme
of
the
Protection
of Women from Domestic Violence Act,
29. The progress of any society depends on its ability
to protect and promote the rights of its women.
Guaranteeing equal rights and privileges to women
by the Constitution of India had marked the step
towards the transformation of the status of the
women
in this country.
30. The domestic violence in this country is rampant
and several women encounter violence in some form
or the other or almost every day, however, it is the
least reported form of cruel behaviour. A woman
resigns her fate to the never end
ing cycle of enduring
violence and discrimination as a daughter, a sister, a
wife, a mother, a partner or a single woman in her
lifetime. This non
retaliation by women coupled with
the absence of laws addressing women’s issues,
ignorance of the existing la
ws enacted for women
and societal attitude makes the women vulnerable.
The reason why most cases of domestic violence are
never reported is due to the social stigma of the
society and the attitude of the women themselves,
where women are expected to be sub
servient, not
just to their male counterparts but also to the male’s
relatives.
31. Till the year 2005, the remedies available to a
victim of domestic violence were limited. The women
either had to go to the civil court for a decree of
divorce or initiate
prosecution in the criminal court for
the offence punishable under Section 498
A of the
IPC. In both the proceedings, no emergency
relief/reliefs/is/are available to the victim. Also, the
relationships
outside the marriage were not
recognized. This set of
circumstances ensured that a
majority or women preferred to suffer in silence, not
out of choice but of compulsion.
32. The enactment of Act, 2005 is a milestone for
protection of women in this country. The statement of
objects and Reasons of the Protect
ion of Women from
Domestic Violence Bill, 2005 marks the objective
which was sought to be achieved by the enactment.
Thus, after considering the facts and circumstances of this case and
after going through the materials on record and after going through t
he
judgments passed by the Hon’ble Apex Court and Hon’ble High Court I am
of a view that the impugned order passed by the Learned Appellate Court is
suffered illegality. It is improper by the Appellate court to hold otherwise to
that of the scope of PWDV A
ct. Thus, the instant Criminal revision has got
merit and it is liable to be allowed.
The instant criminal revision thus allowed and disposed of.
Impugned order passed by the Learned Appellate court is hereby set
aside. The order passed by the
learned
agistrate is
hereby
affirmed
Pending CRAN applications if any, is disposed of.
Any order of stay passed by this court during the continuation of this
instant criminal revision is also hereby vacated.
|
The Calcutta High Court recently held that depriving a woman of her Stridhan or any other financial or economic resources she is entitled to, would amount to domestic violence under the Prevention of Women from Domestic Violence Act, 2005 (PWDV Act) [Nandita Sarkar vs Tilak Sarkar].
Stridhan is gifts/ presents given to a woman voluntarily by her family during her wedding.
Single-judge Justice Subhendu Samanta said the PWDV Act covers within its scope, 'economic abuse.'
"The deprivation of petitioner to any economic or financial resources which the aggrieved person is entitled under any law is also Domestic Violence. In this case, it is the fact that the petitioner was deprived from her Stridhan articles since long, which were under the custody of the opposite parties. This fact tantamount Domestic Violence," Justice Samanta observed in the order.
The Court, therefore, quashed an order passed by a Sessions judge in Howrah who had set aside the order of a Magistrate Court granting compensation and other monetary benefits to a widow against her in-laws.
The Court was hearing a plea by a widow seeking compensation and monetary reliefs from her in-laws. Her husband had expired on October 29, 2010. On the second day after his death, she was asked to leave the matrimonial house by her in-laws. She alleged that the in-laws did not give her the Stridhan and kept other articles with them.
She alleged that while her husband was alive, her in-laws subjected her to cruelty.
The in-laws, on the other hand, contended that the widow herself left the house voluntarily.
Subsequently, the widow sought compensation and other monetary reliefs under the PWDV Act by filing proceedings before a Magistrate, who allowed her plea on July 31, 2015. However, the order was quashed by the Sessions court on April 7, 2018.
The High Court said that there can be probably two explanations for the widow leaving the matrimonial house.
"First, widow may have felt very alone in absence of her husband and took cozy shelter at her father’s home; Second, there existed no good terms with her in-laws; that is the lady was not well at her matrimonial home," the bench noted.
The Court further said that the Sessions court committed injustice in not considering the entire case of the widow before him.
Further, the Court noted that the widow did not have any independent income.
"She is now residing at her father’s home at the mercy of her father. The day-to-day expenses of her livelihood is not a deniable factor. She is only to lay her hand to her father for to meet out the daily expenses. Thus the circumstances incurred and loss suffered by the petitioner is itself proved from the facts and circumstances of this case," the single-judge noted.
The argument advanced by in-laws, the Court said, has no merit on that score.
"Ultimately, it is the irony of fate, that instead of specific legislative intent, the widow lady is roaming doors of Courts since long 10 years without receiving any monetary relief," the Court stated while allowing the plea.
Advocates Subir Banerjee, Sandip Bandyopadhyay and Ruxmini Basu Roy appeared for the Petitioner.
Advocates Manjit Sing, G Sing, Abhisekh Bagal, Biswajit Mal and RK Sing represented the In-Laws.
|
The President of India, as advised by the Prime Minister, has
directed the allocation of portfolios among the following members of the
Council of Ministers : -
Shri Narendra Modi Prime Minister and also in -charge of:
Ministry of Personnel, Public Grievances and
Pensions;
Department of Atomic Energy;
Department of Space;
All important policy issues; and
All other portfolios not allocated to any Minister
1. Shri Raj Nath Singh Minister of Defence
2. Shri Amit Shah Minister of Home Affairs; and
Minister of Cooperation
3. Shri Nitin Jairam Gadkari Minister of Road Transport and Highways
4. Smt. Nirmala Sitharaman Minister of Finance; and
Minister of Corporate Affairs
5. Shri Narendra Singh
Tomar Minister of Agriculture and Farmers Welfare
6. Dr. Subrahmanyam
Jaishankar Minister of External Affairs
7. Shri Arjun Munda Minister of Tribal Affairs
8. Smt. Smriti Zubin Irani Minister of Women and Child Development
Contd….2/ -
9. Shri Piyush Goyal Minister of Commerce and Industry;
Minister of Consumer Affairs, Food and Public
Distribution; and
Minister of Textiles
10. Shri Dharmendra
Pradhan Minister of Education; and
Minister of Skill Development and
Entrepreneurship
11. Shri Pralhad Joshi Minister of Parliamentary Affairs;
Minister of Coal; and
Minister of Mines
12. Shri Narayan Tatu Rane Minister of Micro, Small and Medium
Enterprises
13. Shri Sarbananda Sonowal Minister of Ports, Shipping and Waterways;
and
Minister of AYUSH
14. Shri Mukhtar Abbas Naqvi Minister of Minority Affairs
15. Dr. Virendra Kumar Minister of Social Justice and Empowerment
16. Shri Giriraj Singh Minister of Rural Development; and
Minister of Panchayati Raj
17. Shri Jyotiraditya M.
Scindia Minister of Civil Aviation
18. Shri Ramchandra Prasad
Singh Minister of Steel
19. Shri Ashwini Vaishnaw Minister of Railways;
Minister of Communications; and
Minister of Electronics and Information
Technology
Contd….3/ -
20. Shri Pashu Pati Kumar
Paras Minister of Food Processing Industries
21. Shri Gajendra Singh
Shekhawat Minister of Jal Shakti
22. Shri Kiren Rijiju Minister of Law and Justice
23. Shri Raj Kumar Singh Minister of Power; and
Minister of New and Renewable Energy
24. Shri Hardeep Singh Puri Minister of Petroleum and Natural Gas; and
Minister of Housing and Urban Affairs
25. Shri Mansukh Mandaviya Minister of Health and Family Welfare; and
Minister of Chemicals and Fertilizers
26. Shri Bhupender Yadav Minister of Environment, Forest and Climate
Change; and
Minister of Labour and Employment
27. Dr. Mahendra Nath
Pandey Minister of Heavy Industries
28. Shri Parshottam Rupala Minister of Fisheries, Animal Husbandry and
Dairying
29. Shri G. Kishan Reddy Minister of Culture;
Minister of Tourism; and
Minister of Development of North Eastern
Region
30. Shri Anurag Singh Thakur Minister of Information and Broadcasting; and
Minister of Youth Affairs and Sports
Contd….4/ -
1. Rao Inderjit Singh Minister of State (Independent Charge) of the
Ministry of Statistics and Programme
Implementation;
Minister of State (Independent Charge) of the
Ministry of Planning; and
Minister of State in the Ministry of Corporate
Affairs
2. Dr. Jitendra Singh Minister of State (Independent Charge) of
the Ministry of Science and Technology;
Minister of State (Independent Charge) of
the Ministry of Earth Sciences;
Minister of State in the Prime Minister’s
Office;
Minister of State in the Ministry of Personnel,
Public Grievances and Pensions;
Minister of State in the Department of
Atomic Energy; and
Minister of State in the Department of Space
1. Shri Shripad Yesso Naik Minister of State in the Ministry of Ports,
Shipping and Waterways; and
Minister of State in the Ministry of Tourism
2. Shri Faggansingh Kulaste Minister of State in the Ministry of Steel; and
Minister of State in the Ministry of Rural
Development
3. Shri Prahalad Singh Patel Minister of State in the Ministry of Jal Shakti;
and
Minister of State in the Ministry of Food
Processing Industries
4. Shri Ashwini Kumar
Choubey Minister of State in the Ministry of Consumer
Affairs, Food and Public Distributio n; and
Minister of State in the Ministry of
Environment, Forest and Climate Change
5. Shri Arjun Ram Meghwal Minister of State in the Ministry of
Parliamentary Affairs; and
Minister of State in the Ministry of Culture
6. General (Retd.) V. K.
Singh Minister of State in the Ministry of Road
Transport and Highways; and
Minister of State in the Ministry of Civil
Aviation
7. Shri Krishan Pal Minister of State in the Ministry of Power;
and
Minister of State in the Ministry of Heavy
Industries
8. Shri Danve Raosaheb
Dadarao Minister of State in the Ministry of Railways;
Minister of State in the Ministry of Coal; and
Minister of State in the Ministry of Mines
9. Shri Ramdas Athawale Minister of State in the Ministry of Social
Justice and Empowerment
10. Sadhvi Niranjan Jyoti Minister of State in the Ministry of Consumer
Affairs, Food and Public Distribution; and
Minister of State in the Ministry of Rural
Development
11. Dr. Sanjeev Kumar Balyan Minister of State in the Ministry of Fisher ies,
Animal Husbandry and Dairying
12. Shri Nityanand Rai Minister of State in the Ministry of Home
Affairs
13. Shri Pankaj Chaowdhary Minister of State in the Ministry of Finance
14. Smt. Anupriya Singh Patel Minister of State in the Ministry of Commerce
and Industry
15. Prof. S. P. Singh Baghel Minister of State in the Ministry of Law and
Justice
16. Shri Rajeev Chandrasekhar Minister of State in the Ministry of Skill
Development and Ent repreneurship; and
Minister of State in the Ministry of Electronics
and Information Technology
17. Sushri Shobha Karandlaje Minister of State in the Ministry of Agriculture
and Farmers Welfare
18. Shri Bhanu Pratap Singh
Verma Minister of State in the Ministry of Micro,
Small and Medium Enterprises
19. Smt. Darshana Vikram
Jardosh Minister of State in the Ministry of Textiles;
and
Minister of State in the Ministry of Railways
20. Shri V. Muraleedharan Minister of State in the Ministry of External
Affairs; and
Minister of State in the Ministry of
Parliamentary Affairs
21. Smt. Meenakashi Lekhi Minister of State in the Ministry of External
Affairs; and
Minister of State in the Ministry of Culture
22. Shri Som Parkash Minister of State in the Ministry of Commerce
and Industry
23. Smt. Renuka Singh Saruta Minister of State in the Ministry of Tribal
Affairs
24. Shri Rameswar Teli Minister of State in the Ministry of Petroleum
and Natural Gas; and
Minister of State in the Ministry of Labour
and Employment
25. Shri Kailash Choudhary Minister of State in the Ministry of Agriculture
and Farmers Welfare
26. Smt. Annpurna Devi Minister of State in the Ministry of Education
27. Shri A. Narayanaswamy Minister of State in the Ministry of Social
Justice and Empowerment
28. Shri Kaushal Kishore Minister of State in the Ministry of Housing
and Urban Affairs
29. Shri Ajay Bhatt Minister of State in the Ministry of Defence;
and
Minister of State in the Ministry of Tourism
30. Shri B. L. Verma Minister of State in the Ministry of
Development of North Eastern Region; and
Minister of State in the Ministry of
Cooperation
31. Shri Ajay Kumar Minister of State in the Ministry of Home
Affairs
32. Shri Devusinh Chauhan Minister of State in the Ministry of
Communications
33. Shri Bhagwanth Khuba Minister of State in the Ministry of New and
Renewable Energy; and
Minister of State in the Ministry of Chemicals
and Fertilizers
34. Shri Kapil Moreshwar Patil Minister of State in the Ministry of Panchayati
Raj
35. Sushri Pratima Bhoumik Minister of State in the Ministry of Social
Justice and Empowerment
36. Dr. Subhas Sarkar Minister of State in the Ministry of Education
37. Dr. Bhagwat Kishanrao
Karad Minister of State in the Ministry of Finance
38. Dr. Rajkumar Ranjan
Singh Minister of State in the Ministry of External
Affairs; and
Minister of State in the Ministry of Education
39. Dr. Bharati Pravin Pawar Minister of State in the Ministry of Health and
Family Welfare
40. Shri Bishweswar Tudu Minister of State in the Ministry of Tribal
Affairs; and
Minister of State in the Ministry of Jal Shakti
41. Shri Shantanu Tha kur Minister of State in the Ministry of Ports,
Shipping and Waterways
42. Dr. Munjapara
Mahendrabhai Minister of State in the Ministry of Women
and Child Development; and
Minister of State in the Ministry of AYUSH
43. Shri John Barla Minister of State in the Ministry of Minority
Affairs
44. Dr. L. Murugan Minister of State in the Ministry of Fisheries,
Animal Husbandry and Dairying; and
Minister of State in the Ministry of
Information and Broadcasting
45. Shri Nisith Pramanik Minister of State in the Ministry of Home
Affairs; and
Minister of State in the Ministry of Youth
Affairs and Sports
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Arunachal Pradesh MP, Kiren Rijiju has been appointed the new Union Law Minister.
Rijiju is a law graduate from the Campus Law Centre, Delhi University.
Before being appointed Law Minister, he was the Union Minister of State for AYUSH, Youth Affairs and Sports and Minority Affairs.
Professor SP Singh Baghel will be the Minister of State in the Ministry of Law and Justice.
Earlier today, Ravi Shankar Prasad had resigned from the post of Law Minister in the cabinet reshuffle of the Modi government.
|
1.The reliefs sought for by the petitioner are as
follows:
“a) direct the Home Ministry to constitute a
“Renaming Commission” to find out original
names of ‘ancient historical cultural
religious places’, named after barbaric
foreign invaders in order to maintain
Sovereignty and to secure ‘Right to Dignity,
Right to Religion and Right to Culture’
guaranteed under Articles 21, 25 and 29 of
the Constitution;
b) alternatively, direct the Archaeological
Survey of India to research and publish the
initial names of ancient historical cultural
religious places, which were renamed by
barbaric foreign invaders, in order to secure
‘Right to Know’ guaranteed under Article 19
of the Constitution;
c) direct the Centre and State Governments to
update their websites and records and mention
the original names of ancient historical
cultural religious places, named after the
barbaric foreign invaders.”
2.We have heard Shri Ashwini Kumar Upadhyay,
petitioner appearing in-person.
3.In brief, the case of the petitioner appears to be
as follows:
The country is celebrating the 75th Anniversary of
Independence but there are many ancient, historical,
cultural, religious places in the name of ‘brutal
foreign invaders’, their servants and family members.
He has given various examples. He invokes the right to
dignity as flowing from Article 21 of the Constitution
of India. He further submits that there is his
fundamental right to culture which is protected in
Articles 19 and 29. Again, he refers to Article 25 as
the source of his right to religion and in regard to
his fundamental right to know, he leans on Article
19(1)(a). He also has brought up the concept of
‘sovereignty’ being compromised by the continuous use
of the names of the ‘brutal invaders’.
4.The petitioner, in fact, draws our attention to the
following questions of law:
“1. Whether continuing the names of ancient
historical cultural religious places, in the
names of barbaric invaders is against the
Sovereignty?
2. Whether Centre and States are obligated to
restore the names of ancient historical
cultural religious places in their original
names to secure Right to Dignity guaranteed
under Article 21 of the Constitution?
3. Whether the relief claimed for restoration
of names of ancient historical cultural
religious places, which were changed during
foreign rule, relates to Unity and Integrity
of the Nation, the laudable objective sought
to be achieved in the Preamble of the
Constitution of India?
4. Whether Right to profess, practice and
propagate religion, is intimately connected
with the names of religious places and
therefore the changes made during foreign
rule must be restored to enable the citizens
to freely Profess, Practice and Propagate
Religion guaranteed Article 25?
5. Whether the names of places prevalent
during Ramayana and Mahabharata Period were
arbitrarily and illegally changed during
foreign rule, ought to be restored so as to
protect the Right to Conserve the Ancient
Culture, guaranteed under Article 29 of the
Constitution of India?
6. Whether restoration of the names of the
ancient historical cultural religious places,
is connected with Right to Identity
guaranteed under Article 21?
7. Whether Right to Know guaranteed under
Article 19 includes the right to know
Original Names of the ancient historical
cultural religious places?”
5.We may notice that we have to bear in mind being
the Court dealing with the matter under Article 32 of
the Constitution, that the Court is tasked with the
enforcement of fundamental rights. India, that is
‘Bharat’ in terms of the preamble, is a secular
country. In His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and Another 1, we
notice that it was opined “India is a secular State in
which there is no State religion” (See para 487). The
secular and federal character of the Constitution has
found to be among the “basic elements of the
constitutional structure” (See para 582). Secularism
has been accepted by a Bench of nine learned Judges in
the decision reported in S.R. Bommai and Others v.
Union of India and Others 2, as a facet of the basic
structure of the Constitution. Therein, this Court,
inter alia, declared:
“144....In such circumstances, the Ministries
formed by the said party could not be trusted
to follow the objective of secularism which
was part of the basic structure of the
Constitution and also the soul of the
Constitution.
145. These contentions inevitably invite us
to discuss the concept of secularism as
accepted by our Constitution. Our
Constitution does not prohibit the practice
of any religion either privately or publicly.
Through the Preamble of the Constitution, the
people of this country have solemnly resolved
to constitute this country, among others,
into a secular republic and to secure to all
its citizens ( i) JUSTICE, social, economic
and political; ( ii) LIBERTY of thought,
expression, belief, faith and worship; ( iii)
EQUALITY of status and of opportunity; and
(iv) to promote among them all FRATERNITY
assuring the dignity of the individual and
the unity and integrity of the Nation.
Article 25 of the Constitution guarantees to
all persons equally the freedom of conscience
and the right to freely profess, practise and
propagate religion subject to public order,
morality and health and subject to the other
Fundamental Rights and the State's power to
make any law regulating or restricting any
economic, financial, political or other
secular activity which may be associated with
religious practice. Article 26 guarantees
every religious denomination or any section
thereof the right ( a) to establish and
maintain institutions for religious and
charitable purposes, ( b) to manage its own
affairs in matters of religion, ( c) to own
and acquire movable and immovable property
and (d) to administer such property in
accordance with law. Article 29 guarantees
every section of the citizens its distinct
culture, among others. Article 30 provides
that all minorities based on religion shall
have the right to establish and administer
educational institutions of their choice. It
prohibits the State from making any
discrimination in granting aid to an
educational institution managed by a
religious minority. Under Articles 14, 15 and
16, the Constitution prohibits discrimination
against any citizen on the ground of his
religion and guarantees equal protection of
law and equal opportunity of public
employment. Article 44 enjoins upon the State
to endeavour to secure to its citizens a
uniform civil code. Article 51-A casts a duty
on every citizen of India, among others, ( a)
to abide by the Constitution and respect its
ideals and institutions, ( b) to promote
harmony and the spirit of common brotherhood,
among all the people of India, transcending,
among others, religious and sectional
diversities, ( c) to value and preserve the
rich heritage of our composite culture, ( d)
to develop scientific temper, humanism and
the spirit of inquiry and reform; and ( e) to
safeguard public property and to abjure
violence.
148. One thing which prominently emerges from
the above discussion on secularism under our
Constitution is that whatever the attitude of
the State towards the religions, religious
sects and denominations, religion cannot be
mixed with any secular activity of the State.
In fact, the encroachment of religion into
secular activities is strictly prohibited.
This is evident from the provisions of the
Constitution to which we have made reference
above. The State's tolerance of religion or
religions does not make it either a religious
or a theocratic State. When the State allows
citizens to practise and profess their
religions, it does not either explicitly or
implicitly allow them to introduce religion
into non-religious and secular activities of
the State. The freedom and tolerance of
religion is only to the extent of permitting
pursuit of spiritual life which is different
from the secular life. The latter falls in
the exclusive domain of the affairs of the
State. This is also clear from sub-section
(3) of Section 123 of the Representation of
the People Act, 1951 which prohibits an
appeal by a candidate or his agent or by any
other person with the consent of the
candidate or his election agent to vote or
refrain from voting for any person on the
ground of his religion, race, caste,
community or language or the use of or appeal
to religious symbols. Sub-section (3-A) of
the same section prohibits the promotion or
attempt to promote feelings of enmity and
hatred between different classes of the
citizens of India on the grounds of religion,
race, caste, community or language by a
candidate or his agent or any other person
with the consent of the candidate or his
election agent for the furtherance of the
prospects of the election of that candidate
or for prejudicially affecting the election
of any candidate. A breach of the provisions
of the said sub-sections (3) and (3-A) are
deemed to be corrupt practices within the
meaning of the said section.
197. Rise of fundamentalism and
communalisation of politics are anti-
secularism. They encourage separatist and
divisive forces and become breeding grounds
for national disintegration and fail the
parliamentary democratic system and the
Constitution. Judicial process must promote
citizens' active participation in electoral
process uninfluenced by any corrupt practice
to exercise their free and fair franchise.
Correct interpretation in proper perspective
would be in the defence of the democracy and
to maintain the democratic process on an even
keel even in the face of possible friction,
it is but the duty of the court to interpret
the Constitution to bring the political
parties within the purview of constitutional
parameters for accountability and to abide by
the Constitution, the laws for their strict
adherence.
304....How are the constitutional promises of
social justice, liberty of belief, faith or
worship and equality of status and of
opportunity to be attained unless the State
eschews the religion, faith or belief of a
person from its consideration altogether
while dealing with him, his rights, his
duties and his entitlements? Secularism is
thus more than a passive attitude of
religious tolerance. It is a positive concept
of equal treatment of all religions . This
attitude is described by some as one of
neutrality towards religion or as one of
benevolent neutrality. This may be a concept
evolved by western liberal thought or it may
be, as some say, an abiding faith with the
Indian people at all points of time. That is
not material. What is material is that it is
a constitutional goal and a basic feature of
the Constitution as affirmed in Kesavananda
Bharati [Kesavananda Bharati v. State of
Kerala, (1973) 4 SCC 225 : 1973 Supp SCR 1]
and Indira N. Gandhi v. Raj Narain [1975 Supp
SCC 1 : (1976) 2 SCR 347] . Any step
inconsistent with this constitutional policy
is, in plain words, unconstitutional....”
(Emphasis supplied)
6. In State of Karnataka v. Praveen Bhai Thogadia
(Dr.), 3, this Court proclaimed:
“9. Our country is the world's most
heterogeneous society with a rich heritage
and our Constitution is committed to high
ideas of socialism, secularism and the
integrity of the nation. As is well known,
several races have converged in this
subcontinent and they have carried with them
their own cultures, languages, religions and
customs affording positive recognition to the
noble and ideal way of life — “unity in
diversity”. Though these diversities created
problems in early days, they were mostly
solved on the basis of human approaches and
harmonious reconciliation of differences,
usefully and peacefully. That is how
secularism has come to be treated as a part
of fundamental law, and an unalienable
segment of the basic structure of the
country's political system. As noted in S.R.
Bommai v. Union of India [(1994) 3 SCC 1]
freedom of religion is granted to all persons
of India. Therefore, from the point of view
of the State, religion, faith or belief of a
particular person has no place and given no
scope for imposition on individual citizen.
Unfortunately, of late, vested interests
fanning religious fundamentalism of all kinds
vying with each other, are attempting to
subject the constitutional machineries of the
State to great stress and strain with certain
quaint ideas of religious priorities, to
promote their own selfish ends, undeterred
and unmindful of the disharmony it may
ultimately bring about and even undermine
national integration achieved with much
difficulties and laudable determination of
those strong-spirited savants of yesteryear.
Religion cannot be mixed with secular
activities of the State and fundamentalism of
any kind cannot be permitted to masquerade as
political philosophies to the detriment of
the larger interest of society and basic
requirement of a welfare State. Religion sans
spiritual values may even be perilous and
bring about chaos and anarchy all around. It
is, therefore, imperative that if any
individual or group of persons, by their
action or caustic and inflammatory speech are
bent upon sowing seeds of mutual hatred, and
their proposed activities are likely to
create disharmony and disturb the
equilibrium, sacrificing public peace and
tranquillity, strong action, and more so
preventive actions are essentially and
vitally needed to be taken. Any speech or
action which would result in ostracization of
communal harmony would destroy all those high
values which the Constitution aims at.
Welfare of the people is the ultimate goal of
all laws, and State action and above all the
Constitution. They have one common object,
that is to promote the well-being and larger
interest of the society as a whole and not of
any individual or particular groups carrying
any brand names. It is inconceivable that
there can be social well-being without
communal harmony, love for each other and
hatred for none. The core of religion based
upon spiritual values, which the Vedas,
Upanishads and Puranas were said to reveal to
mankind seem to be:“Love others, serve
others, help ever, hurt never” and “sarvae
jana sukhino bhavantoo” . One-upmanship in the
name of religion, whichever it be or at
whomsoever's instance it be, would render
constitutional designs countermanded and
chaos, claiming its heavy toll on society and
humanity as a whole, may be the inevitable
evil consequences, whereof.”
(Emphasis Supplied)
7.In M.P. Gopalakrishnan Nair v. State of Kerala 4,
this Court declared:
” 20. It is now well settled:
(i) The Constitution prohibits the
establishment of a theocratic State.
(ii) The State is not only prohibited to
establish any religion of its own but is also
prohibited to identify itself with or
favouring any particular religion.
(iii) The secularism under the Indian
Constitution does not mean constitution of an
atheist society but it merely means equal
status of all religions without any
preference in favour of or discrimination
against any one of them.”
8.We are of the view that the questions of law raised
by petitioner do not arise.
9.The present and future of a country cannot remain a
prisoner of the past. The governance of Bharat must
conform to Rule of law, secularism, constitutionalism
of which Article 14 stands out as the guarantee of both
equality and fairness in the State’s action.
10.The founding fathers contemplated India to be a
republic which is not merely to be conflated to a body
polity having an elected President which is the
conventional understanding. But it also involves
ensuring rights to all sections of people based on it
being a democracy. It is important that the country
must move forward. For achieving the sublime goals
which are enshrined in Part IV – that is the Directive
Principles, but bearing in mind the fundamental rights
also guaranteed in Part III of the Constitution, which
have been described as the two wheels of the chariot of
the State, both of which are indispensable, for the
smooth progress of the nation, actions must be taken
which bond all sections of the society together.
11.The history of any nation cannot haunt the future
generations of a nation to the point that succeeding
generations become prisoners of the past. The golden
principle of fraternity which again is enshrined in the
preamble is of the greatest importance and rightfully
finds its place in the preamble as a constant reminder
to all stakeholders that maintenance of harmony between
different sections alone will lead to the imbibing of a
true notion of nationhood bonding sections together for
the greater good of the nation and finally, establish a
sovereign democratic republic. We must constantly remind
ourselves that courts of law, as indeed every part of
the ‘State’, must be guided by the sublime realisation,
that Bharat is a secular nation committed to securing
fundamental rights to all sections as contemplated in
the Constitution.
12.We are, therefore, of the view that the reliefs
which have been sought for should not be granted by
this Court acting as the guardian of fundamental rights
of all under Article 32 of the Constitution of India
and bearing in mind the values which a Court must keep
uppermost in its mind - the preamble gives us clear
light in this direction.
13.The writ petition is dismissed.
Writ Petition (Civil) No. 190/2023
Date : 27-02-2023 This petition was called on for hearing today.
For Petitioner(s)
Mr. Ashwini Kumar Upadhyay, Petitioner-in-person
Mr. Ashwani Kumar Dubey, AOR
For Respondent(s)
UPON hearing the petitioner-in-person
the Court made the following
The writ petition is dismissed in terms of the signed
reportable judgment.
[Signed reportable judgment is placed on the file.]
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The Supreme Court on Monday rejected a public interest litigation (PIL) petition filed by BJP leader and advocate Ashwini Kumar Upadhyay seeking renaming of historical places and cities which he claimed are currently named after "invaders" [Ashwini Kumar Upadhyay vs Union of India and ors].
A bench of Justices KM Joseph and BV Nagarathna came down upon the petitioner for what it considered to be a petition which went against secular principles envisaged in the Constitution.
"We are secular and supposed to protect the Constitution. You are concerned about the past, and dig it up to place its burden on present generation. Each thing you do in this manner will create more disharmony," the bench said.
The Court said that the petitioner is reexamining the past selectively and also took objection to terming an entire community as barbaric.
"You are relooking at the past selectively. India is today a secular country. Your fingers being pointed at a particular community, termed barbaric. Do you want to keep the country under boil," Justice Joseph remarked.
Pertinently, the bench remarked that Hinduism is a great religion and it does not allow bigotry.
"Perhaps Hinduism is greatest religion in terms of metaphysics. Please do not belittle it. The world looks to us always. Even today. I can say, I am a Christian but am equally fond of Hinduism and have tried to study it. Try and understand its greatness. Do not use it for a particular purpose," Justice Joseph said.
"That is why it a way of life, does not allow bigotry," Justice Nagarathna weighed in.
"In fact, in Kerala where I come from, Hindus have donated land to churches," Justice Joseph said.
Justice Nagarathna said that the country is facing so many other problems which should be first solved.
She also highlighted the divide and rule policy followed by the British to ensure that Indians kept fighting amongst themselves.
"Our country has so many problems to attend to ... Hinduism is a way of life, because of that India has assimilated everybody. Because of that we are able to live together. Divide and rule policy of British brought about schism in our society ... Let us not bring that back. Do not drag a religion into this," Justice Nagarathna said.
The Court also said that it has been settled by the Supreme Court in past judgments that India is a secular country and a nation cannot remain a prisoner of its past.
"We may notice that we have to bear in mind being 3 the Court dealing with the matter under Article 32 of the Constitution, that the Court is tasked with the enforcement of fundamental rights. India, that is ‘Bharat’ in terms of the preamble, is a secular country. This has been upheld by 9 judges. The present and future of a country cannot remain a prisoner of the past. The governance of Bharat must conform to Rule of law, secularism, constitutionalism of which Article 14 stands out as the guarantee of both equality and fairness in the State’s action," the bench said.
The filed by Upadhyay through advocate Ashwani Kumar Dubey sought directions to the Home Ministry to form a Renaming Commission to find out the historical names of places renamed by 'barbaric foreign invaders', so as to maintain sovereignity and secure other fundamental rights.
It also sought that the Central and State governments be directed to update their websites and records to reflect, which amount to around a 1000 in number.
Alternatively, it was sought that the Archaeological Survey of India be directed to prepare a list of such names under the citizens' right to know under Article 19 of the Constitution.
"We are celebrating the 75th anniversary of independence but there are many ancient historical cultural religious places in the name of brutal foreign invaders, their servants and family members ... successive governments have not taken steps to correct the barbaric act of invaders and the injury is continuing," the plea stated.
The Court, however, made it clear today that while India has been invaded many times over, the same cannot be wiped away from history by renaming places.
"Can we rewrite history and say they did not invade?" Justice Joseph asked.
"That is a fact of history can you wish it away. Yes we have been ruled by foreign invaders. We have been invaded several times and history has taken its part. What are you trying to achieve? Have we not heard other problems in our country," Justice Nagarathan asked.
Upadhyay said that Constitutional protections cannot be given to invaders.
"Hindus wiped out from Afghanistan, a minority in nine States. My understanding is this Constitution is not for foreign barbaric invaders," Upadhyay stated.
The bench said that the principle of fraternity should trump everything.
"The history of any nation cannot haunt the present and future generations of a nation to the point that succeeding generations become prisoners of the past. The golden principle of fraternity which again is enshrined in the preamble is of the greatest importance and rightfully finds its place in the preamble as a constant reminder to all stakeholders that maintenance of harmony between different sections alone will lead to the imbibing of a true notion of nationhood bonding sections together for the greater good of the nation and finally, establish a sovereign democratic republic."
We must constantly remind ourselves that courts of law as well the State have to be guided by the 'sublime realisation that Bharat is a secular nation committed to securing fundamental rights to all sections' as contemplated in the Constitution, the bench added.
Upadhyay sought to withdraw his petition but the bench disallowed the same and proceeded to dismiss it.
" ... the reliefs which have been sought for should not be granted by this Court acting as the guardian of fundamental rights of all under Article 32 of the Constitution of India and bearing in mind the values which a Court must keep uppermost in its mind - the preamble gives us clear light in this direction. The writ petition is dismissed."
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The National Law School of India University was established in 1986 to pioneer legal education
reform and anchor the transformation of the Indian legal system through research and policy
interventions. We are dedicated to the realization of core constituti onal values through a vital
democracy committed to freedom and social justice. The University rests on a unique
collaboration between legal academics, the Bar, the Bench and the State Government of
Karnataka. This strong coalition has ensured that the Univ ersity has remained the undoubted
leader in legal education in India for the last three decades .
The University pioneered the 5 year integrated B.A., LL.B (Hons) programme in India. This
programme remains the flags hip degree at NLSIU. This programme has several unique features:
First, the programme is taught in three trimesters each academic year. In each trimester, a student
completes 4 courses and completes an intense programme of 60 courses before they graduate .
Secondly, the programme is strongly inter -disciplinary and students will develop an
understanding of law as well as the humanities and social sciences; Thirdly, the pedagogy is
socratic where students engage actively with learning materials in the classr oom and are
challenged on a continuous basis; Fourthly, after students complete foundation courses in the
first two years of the programme, they are permitted to choose courses from the third year of the
programme. These courses are often taught by profess ionals and academics from around the
world; Fifthly, all students write a mandatory paper in almost every course in the programme and
present these materials to ensure that they develop research, writing and oral presentation skills;
Finally, all students will complete mandatory internships through the five year programme and
develop the field awareness and professional skills necessary for their future careers.
Apart from the rigorous academic programme students at the University engage in several co -
curricular and extra -curricular activities. Mooting remains a core activity. In 1999 the University
became the first Indian team to win the Philip C. Jessup International Law Moot Court
Competition. We won again in 2013 and were Runners Up in 2018. In 2017, the University team
won the Manfred Lachs Space Law International Moot competition for the 3rd time, having won
before in 2009 and 2012. Our students organize some key annual events including the NLS Open
Debate, Strawberry Fields Music Festival, Admit One Theatre Competition and the Spiritus
Sports Fest. More information is available on our University website, www.nls.ac.in .
Since inception, admission to the B.A., LL.B. (Hons.) Degree Programme has been purely on the
basis of merit as assessed through a common entrance exam. The University conducted its own
All-India entrance examination until 2008, when the Common Law Admissi on Test was
conceived. In 2018, the Consortium of National Law Universities comprising the Vice -
Chancellors of 22 National Law Universities was formed to establish a Permanent CLAT
Secretariat for the conduction of the CLAT.
The Covid -19 pandemic has how ever caused unforeseen difficulties and delays in the conduct of
CLAT 2020. The repeated postponement of the examination has resulted in uncertainty for
students, parents and the participating Universities. NLSIU is uniquely disadvantaged as it
follows a t rimester system where every academic year is made up of three terms of 90 days
duration. Moreover, each term must accommodate 60 hours of classroom instruction in each
course and adequately provide for examination and evaluation processes. Further, the aca demic
offering for the 3rd, 4th and 5th year of the B.A., LL.B programme as well as the LL.M
programme is fully integrated and requires a common academic calendar.
Hence, if NLSIU is unable to complete admissions before the end of September 2020 it will
inevitably result in a ‘Zero Year’ with no admission . This w ill deprive law students of the
opportunity to pursue their studies this year at India’s premier law university. We are fully
committed to ensuring that no student is denied the opportunity to study a t NLSIU this Academic
Year. Hence, NLSIU is compelled by the current circumstances to conduct a separate admissions
process for the B.A., LL.B and LL.M programmes for the Academic Year 2020 -21.
This matter was considered at length at a Faculty Meeting at the University on August 6th, 2020
where the Faculty unanimously resolved that NLSIU needed to take all measures necessary to
avoid a ‘Zero Year.’ The Executive Council of the University, at its 91st Meeting held in two
sessions on 12th August 2020 and 18 th August 2020 met to consider the matter and unanimously
resolved to authorize the University to develop an alternative admission s process in the event
that CLAT 2020 was not conducted on September 7th 2020.
On August 28th the Executive Committee of the C onsortium of National Law Universities
postponed CLAT 2020 from September 7th to September 28th 2020. A Faculty Sub -Committee
was constituted to develop a revised admission procedure. The Sub -Committee considered all
available options and concluded that a common entrance test conducted online at the earliest
and with the lowest possible application fee would be a fair, transparent and accessible
admissions process. This procedure was discussed at a Faculty Meeting held on 31st August,
2020. After taking int o account the suggestions and revisions necessary, a Revised Admission
Notification for Academic Year 2020 -21 is hereby notified.
The Admissions Notification outlined below exclusively governs all admissions to the B.A.,LL.B
(Hons) Programme of NLSIU for the year 2020 -21. Any student who seeks admission to NLSIU
must apply directly to the University and complete the NLAT UG 2020 Entrance examination .
The University will not accept CLAT 2020 scores for admission to Academic Year 2020 -21.
4.1. Intake
The total intake of students shall be 120 (One Hundred and Twenty). The Reservation
Notification 2021 has been published separately on the website.
4.2. Eligibility of Candidates
4.2.1. All candidates must have secured an unconditional pass and the minimum percentage of marks
in the qualifying examination (10+2 or its equivalent examination) as specified below:
i. Aggr egate percentage of 45% or its equivalent grade in case of General Category and
PWD students.
ii. Aggregate percentage of 4 0% or its equivalent grade in case of SC/ST.
4.2.2. There is no upper age limit to apply.
4.3. Application and Required Documents
4.3.1. The Online Application portal will open on 3rd September, 2020 and will close at Midnight on
10th September, 2020.
4.3.2. All applications must be submitted online at https://admissions.nls.ac.in/ .
4.3.3. Applicants must register themselves using their personal mobile number. On registration, an OTP
will be sent to the given mobile number for validation. Once your mobile number is validated,
you may login using your mobile number and password provided at the time of registration.
4.3.4. Please fill the form carefully. All names should be spelt correctly in the application as it appears
in the Certificates/Mark sheets/Identity proof. Any c hange/alteration found may disqualify your
candidature.
4.3.5. Candidates will be required to upload the following documents along with the application:
1. Candidate’s recent passport size photograph,
2. Scanned copy of an original Government issued photo -ID. Eg. Driver ’s license, Aadhar
Card, Voter ID, Ration Card , Passport , etc.
3. Scanned copy of original marks statement and pass certificate of standard 10, or
matriculation, or equivalent examination,
4. Scanned copy of original marks statement and pass certificate of 10+2 or equivalent
examination,
5. Scanned copy of original caste certificate / tribe certificate/disability certificate wherever
applicable,
6. Scanned copy of documentary proof, including Letter from the Head of Institution and
School certificates/Report card s to prove schooling in Karnataka for ten years, wherever
applicable.
All scanned documents must be clear and complete. In case scanned and uploaded documents
are unclear, incomplete, or illegible, the applic ation may be rejected. All documents will be
subjected to physical verification at the time of admission. Any discrepancy in documents
submitted will lead to automatic disqualification of the candidate.
NOTE: If candidates are unable to produce one or more of the documents listed at Serial Nos. 4,
5 and 6, they must ensure that the same are provided to NLSIU authorities at the time of
admission, failing which the candidate’s provisional offer of admission will be cancelled.
4.3.6. Once you have finished filling in the Application and uploading all necessary documents you
must save and submit the application.
4.3.7. After all details are filled in and documents are uploaded, candidates must sign the declaration
and submit the application. The candidates are required to read the instructions carefully and
furnish correct and authentic information. In case the information furnished at any stage of the
application, examination and admission process is found to be false or incorrect or if there is any
discrepancy or mismatch between the information furnished by the candidate at the relevant
section and the certificates/documents produced at the time of admission, the provisional
admission offered to the candidate shall stand cancelled with immediate effect without assigning
any further reason and the candidate shall stand disqualified from being considered for further
admission to NLSIU.
4.3.8. No alteration/editing in the online application form can be done after successful submission/final
submission of the form.
4.3.9. After submission you will be required to pay an Application Fee of Rs. 150 (General and PWD
Category) and Rs. 125 (for SC / ST Candidates) .
4.3.10. The last date for submission of applications and making payments is 10th September, 2020.
Candidates are advised not to wait till the deadline for submission of applications but to submit
them well in time. There will be no offline application or submission of documents.
4.4. National Law Aptitude Test
4.4.1. Candidates will be selected on the basis of the aggregate marks secured in an online home -based
Entrance Examination known as the National Law Aptitude Test, 2020 (NLAT) . The National
Law Aptitude Test, 2020 (the “NLAT 2020” ) will test applicants for admission to the
undergraduate B.A., LL.B. (Hons ) and postgraduate LL.M programmes commencing in 2020 at
the National Law school of India University, Bengaluru (“ NLSIU ”) on subjects that correspond
to the subjects proposed to be tested in the Common Law Admission Test, 2020.
4.4.2. Candidates who have submitt ed a valid application form will be required to appear for the NLAT.
The Test shall be an online entrance examination to be held on 12th September, 2020. Candidates
will attempt this examination using a computer device at their respective locations. Candidates
will have to ensure that they can appear for the examination on the appropriate date and time
using a computer device as per the detailed spec ifications that will b e provided , including video
and audio inputs. NLSIU shall not be responsible for any connectivity issues, or failure of internet
connection during the examination. NLSIU reserves the right to cancel any candidate’s
examination based on misconduct o r examination malpractice.
4.4.3. Detailed instructions on the online examination process shall be provided to the candidates in
due course.
4.4.4. Syllabus and Guide
The NLAT 2020 UG will test candidates on 5 (five) subjects (and the published format of the
CLAT 2020 UG) co mprising, English Language, Current Affairs Including General Knowledge,
Legal Reasoning, Logical Reasoning, and Quantitative Techniques.
1. The NLAT 2020 UG will comprise 4 (four) General Comprehension (“GC”) passages.
2. Each GC passage will be accompanied by 10 (ten) questions that candidates will have to
answer based on the information provided in the corresponding GC passage and in the
questions. NLAT 2020 UG will have a total of 40 (forty) questions.
3. Each GC passage will be of a similar length (i.e., ~500 w ords) and order of difficulty as in the
Mock CLAT 2020 UG papers.
4. The 10 (ten) questions that accompany each GC passage will have 2 (two) questions each
from the 5 (five) subjects.
4.4.5. Question Paper Format
1. The NLAT 2020 UG shall be conducted in English.
2. The Max imum Marks for the NLAT is 80 marks.
3. All questions shall be Multiple Choice Questions (MCQ)
4. The total duration of the examination is 45 minutes.
5. Marking Scheme:
2 mark s per correct answer
-0.25 marks per unanswered question
-0.50 marks per wrong answer
6. This is not an open book examination; candidates may not seek assistance from any other
person to answer the questions in the examination.
7. Candidates will only have 1 (one) attempt at each question. They will not be able to revisit a
question once t hey have moved on to another question.
8. Candidates may not take the assistance of any resources, whether electronic, print, or in any
other form.
4.5. Merit List
1. Following the examination and validation of the Final Answer Key, a General merit list of all
candidates will be prepared solely on basis of their marks in the NLAT 2020 UG.
2. Tie-break Rule: In case of equal marks, a break of tie shall be made by the foll owing procedure
and order:
(i) Higher number of correct answers to Legal Reasoning Questions
(ii) Higher number of correct answers in the overall examination
(ii) Computerised draw of lots
3. All candidates will be informed of their Merit rank, aggregate marks and the aggregate mark
of the last admitted candidate in their category over email /SMS .
4. No consolidated Merit List or Admission list shall be published by the University.
5.1. The University shall prepare a Provisional Admissions list on the basis of the Merit List of
NLAT. SC , ST, PWD and Karnataka students will be accommodated as per the Reservation
Notification 2021 available on our website.
5.2. Selected candidates will be offered Provisional Admission to the University and intimated of the
same via email /SMS .
5.3. In order to confirm the ir seat, selected candidates must accept the Provisional Offer by producing
the necessary documents and paying the requisite Fees. Detailed instructions on Acceptance of
Offers will be provided by email /SMS and will have to be complied with by the candidate st rictly
according to the timelines provided. In the event of any default by the candidate, the same seat
may be diverted to another candidate according to merit.
5.4. Total Annual fee (including refundable deposits) for incoming students
a) General Category and PWD - Rs. 2,62,000.00 p.a.
b) SC / ST Category - Rs. 2,58,875.00 p.a.
The fees/charges may be revised by the University, but the revised fees/charges will be applied
prospectively.
5.5. NLSIU is committed to ensure that no one who secures admission to NLSIU shall discontinue
studies on account of financial constraints. NLSIU will facilitate scholarships, educational loans
and bursaries to students to enable them to secure their admissions .
5.6. If a candidate withdraws their admission on any ground, in any of the courses of the University,
fees shall be refundable as per the applicable UGC Rules.
6.1. NLSIU reserves the right to unilaterally alter, modify, or cancel any component or stage of the
selection process without prior notice.
6.2. NLSIU shall not be liable for any failure of communication, delivery of emails, internet,
computer device, etc., during any stage of the selection process.
6.3. The decision of NLSIU on any stude nt’s eligibility, candidature, shortlisting, and selection shall
be final and not subject to any appeals or challenges by or on behalf of any student(s).
6.4. By submitting an application for admission, a student undertakes to abide by all conditions of the
application process, and further undertakes to furnish accurate, correct, and complete information
and documents.
6.5. Any subsequent discovery of malpractice, dishonesty etc. will render the student ineligible to get
admission at NLSIU. No incomplete application will be considered. Any admission granted to
such a student is subject to be cancelled at any point of time at the discretion of the University.
6.6. NLSIU reserves the right to not grant admission to a selected candidate if any reason justifying
such a decisio n comes to its notice at any stage of the admission process.
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The National Law School of India (NLSIU), Bangalore will be conducting its own online entrance test for admissions this year for its law programmes i.e. the National Law Aptitude Test, 2020 (NLAT).
"Candidates will be selected on the basis of the aggregate marks secured in an online home-based Entrance Examination known as the National Law Aptitude Test, 2020 (NLAT). The National Law Aptitude Test, 2020 (the “NLAT 2020”) will test applicants for admission to the undergraduate B.A., LL.B. (Hons) and postgraduate LL.M programmes commencing in 2020 at the National Law school of India University, Bengaluru (“NLSIU”) on subjects that correspond to the subjects proposed to be tested in the Common Law Admission Test, 2020", it has been informed.
The Online Application portal will open on September 3 (today) and will close at midnight on September 10, 2020. All applications must be submitted online at https://admissions.nls.ac.in/.
The notificaton issued by the University states that the decision to hold a separate test was keeping in view that NLSIU has a trimester system. This poses unique difficulties for NSLIU if the conduct of the law entrance test is delayed beyond September 7, it is stated.
"NLSIU is uniquely disadvantaged as it follows a trimester system where every academic year is made up of three terms of 90 days duration. Moreover, each term must accommodate 60 hours of classroom instruction in each course and adequately provide for examination and evaluation processes. Further, the academic offering for the 3rd, 4th and 5th year of the B.A., LL.B programme as well as the LL.M programme is fully integrated and requires a common academic calendar."
As such, it was decided that a separate test, i.e. the NLAT would be conducted on September 12 for admissions to NSLIU the coming academic year.
On the conduct the NLAT and its evaluation, the notification further informs the following:
The Test shall be an online entrance examination to be held on September 12, 2020
NLSIU shall not be responsible for any connectivity issues, or failure of internet connection during the examination. NLSIU reserves the right to cancel any candidate’s examination based on misconduct or examination malpractice.
The NLAT 2020 UG will test candidates on 5 subjects (and the published format of the CLAT 2020 UG) comprising, English Language, Current Affairs Including General Knowledge, Legal Reasoning, Logical Reasoning, and Quantitative Techniques.
Question Paper Format: The NLAT 2020 UG shall be conducted in English. The Maximum Marks for the NLAT is 80 marks. All questions shall be Multiple Choice Questions (MCQ). The total duration of the examination is 45 minutes.
Marking Scheme: 2 marks per correct answer and -0.25 marks per unanswered question. -0.50 marks per wrong answer.
This is not an open book examination; candidates may not seek assistance from any other person to answer the questions in the examination.
Candidates will only have 1 attempt at each question. They will not be able to revisit a question once they have moved on to another question.
Candidates may not take the assistance of any resources, whether electronic, print or in any other form.
Read more details:
Read NLSIU's Press Release:
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No. K-13014/06/2023-US.I
Government of India
Ministry of Law & Justice
Department of Justice
(Appointments Division)
Jaisalmer House, 26, Man Singh Road,
New Delhi-110 011, dated 23rd January, 2024.
In exercise of the power conferred by clause (1) of Article 217 of the
Constitution of India, the President is pleased to appoint Shri Justice Abhay Ahuja,
Additional Judge of the Bombay High Court, to be a Judge of that High Court with
effect from the date he assumes charge of his office.
; t444.1,_ (Nara tii Prasad)
Deputy Secretary to the Government of India
Tee: 23072149
To
The Manager,
Government of India Press,
Mint° Road,
New Delhi.
No. K-13014/06/2023-USI Dated: 23.01.2024.
Copy to:-
1. Shri Justice Abhay Ahuja, Additional Judge of the Bombay High Court
through the Registrar General, Bombay High Court, Mumbai.
2. The Secretary to the Governor, Maharashtra, Mumbai
3. The Secretary to the Governor, Goa, Panaji.
4. The Secretary to the Chief Minister, Maharashtra, Mumbai.
5. The Secretary to the Chief Minister, Goa, Panaji.
6. The Secretary to the Chief Justice, Bombay High Court, Mumbai.
7. The Chief Secretary, Government of Maharashtra, Mumbai.
8. The Chief Secretary, Government of Goa, Panaji.
9. The Registrar General, Bombay High Court, Mumbai.
10. The Accountant General, Maharashtra, Mumbai.
11. The Accountant General, Goa, Panaji.
12. The President's Secretariat, (CA.II Section), Rashtrapati Bhawan, New
Delhi
13. PS to Principal Secretary to the Prime Minister, PM's Office, South Block,
New Delhi.
14. Registrar (Conf.), o/o Chief Justice of India, 7, Krishna Menon Marg, New
Delhi.
16. Technical Director, MC, Department of Justice, with a request to upload on
the website of the Department (www.doi.2ov.in).
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The Central government on Tuesday cleared the appointment of additional judge Justice Abhay Ahuja as a permanent judge of the Bombay High Court.
A notification to this effect was issued by the Department of Justice, Union Ministry of Law and Justice on January 23, 2024.
The Supreme Court collegium had on January 4 recommended that he be made permanent.
Justice Ahuja was appointed additional judge of the Bombay High Court in February 2020 for two years.
In January 2022, his term was extended by the Central government till March 2023, following a recommendation by the Collegium in November 2021.
This term was further extended with effect from March 4, 2023.
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ition (Civil) No. 305 of 1988.
(Under Article 32 of the Constitution of India).
Soli J. Sorabjee, Harish, N. Salve, Vasant Mehta, Atul Tewari and Miss Bina Gupta for the Petitioners.
Satish Chandra, Anil B. Divan, Dr. Y.S. Chitale, P.V. Kapur, Anil Kumar Sharma, P.P. Malhotra, Naresh Sharma, (Solicitor General) T.V.S.N.
Chari, Badri Nath, Ms. V. Grover, (Attorney General), A. Subba Rao, Miss A. Subhashini, K.J. John, section Swarup and Miss Naina Kapur for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
By the order passed by us on 741 29th March, 1988, we had dismissed this petition under Article 32 of the Constitution.
We had, further, observed that we will indicate our reasons by a separate judgment.
We do so herein.
This petition under Article 32 of the Constitution challenges the constitutional validity of the Swadeshi Cotton Mills Limited (Acquisition and Transfer of Undertakings) Act, 1986 (hereinafter called 'the Act ').
It appears that there was an order made by the Central Government under Section 18AA(1)(a) of the Industries (Development & Regulation) Act, 1951 (hereinafter called 'the IDR Act ') for taking over the management of the six undertakings of Swadeshi Cotton Mills, namely, (i) Swadeshi Cotton Mills, Kanpur, (ii) Swadeshi Cotton Mills, Pondicherry, (iii) Swadeshi Cotton Mills, Naini, (iv) Swadeshi Cotton Mills, Maunath Bhanjan, (v) Udaipur Cotton Mills, Udaipur and (vi) Rae Bareli Textile Mills, Rae Bareli for a period of five years.
There were several proceedings in the High Court of Delhi and in other High Courts.
It is not necessary in view of the judgment of this Court in SLP (Civil) Nos.
4826 & 7045 of 1987, M/s. Doypack Systems Pvt. Ltd. vs Union of India and others, dated 12th February, 1988 to set out in extenso all these facts.
By the aforesaid judgment it was held that the 10,00,000 shares in Swadeshi Polytex Limited and 17,18,344 shares in Swadeshi Mining and Manufacturing Company Limited held by the Swadeshi Cotton Mills vested in the Central Government and National Textile Corporation (hereinafter called 'NTC '), under sections 3 and 4 of the Act.
It was further held that in view of the amplitude of the language used, the immovable properties, namely, the Bungalow No. 1 and the Administrative Block, Civil Lines, Kanpur had also vested in N.T.C. Directions were given by this Court in the said judgment to enter the name of the NTC in its register of members of the said Companies and to treat the NTC as their shareholder instead of other erstwhile shareholders.
This petition under Article 32 of the Constitution has been filed by the petitioners who claim to be shareholders of respondent No. 4, Swadeshi Cotton Mills Company Limited as they have an interest in the business, affairs and properties of the Swadeshi Cotton Mills Company Limited and Swadeshi Mining and Manufacturing Company Limited.
It was contended that the effect of the aforesaid decision was to take away valuable assets of respondent No. 4, namely, Swadeshi Cotton Mills Limited without paying any compensation whatsoever therefore and further it imposed upon respondent No. 4 liabilities without any corresponding assets available to discharge the liabilities.
It was the contention in this writ petition that the said acquisition 742 virtually amounted to confiscation of the shares of respondent No. 5 and respondent No. 6 held by respondent No. 4 and substantially damaged the rights of the shareholders of respondent No. 4.
In the premises, it was submitted that they have the locus to challenge the vires and constitutional validity of sections 3 and 4 of the said Act in so far as these seek to divest respondent No. 4 of the shares in respondent No. 5 and respondent No. 6 and certain other excluded assets.
It was submitted that so far as the said Act provided for the vesting of shares held by respondent No. 4 in respect of respondent Nos. 5 and 6 it constituted a fraud on legislative power.
It was submitted that there was no public purpose in such acquisition.
It is taxation and appropriation and not nationalisation.
It was further urged that it was contrary to the preamble to the Act because according to the preamble it was to ensure continuance of the manufacture, production and distribution of different varieties of cloth and yarn which were vital to the needs of the country.
The industrial undertaking of respondent No. 5 produces sugar.
The industrial undertaking of respondent No. 6 produces synthetic fibre.
Therefore, both these companies or undertakings are producing neither cloth nor yarn.
Therefore, it was submitted that in any event, the stated public purpose has no nexus with the acquisition of shares of respondent No. 5 and respondent No. 6 and as such, the acquisition of the shares of respondent Nos. 5 and 6 is without there being any public purpose.
It was submitted that if the Act was so read then it was violative of Article 14 and Article 19(1)(g) of the Constitution.
It was submitted that the acquisition must be for a public purpose and there must be some compensation paid for that acquisition.
It was submitted that implicit in the concept of acquisition which is akin to the power of eminent domain is the concept of payment of compensation.
It was urged that after the legislative change made by the Constitution (Seventh Amendment) Act, 1956, the power of the State as well as of the Union to enact any law governing acquisition of property must necessarily be governed by the provisions of Entry 42 in List III of the Seventh Schedule to the Constitution.
After the amendment, there was no specific Entry in List III which empowered the Union or the States to enact law for payment of compensation, so it is now implicit in the concept of acquisition and requisition of property.
It was further urged that under Article 300 A of the Constitution, no person could be deprived of his property save by the authority of law.
It was further submitted that the law contemplated by this Article was obviously a law providing for acquisition of property and, therefore, it was inter linked with Entry 42 of List III of the Seventh Schedule to the Constitution.
All these contentions, in our opinion, are not tenable because all these contentions were directly or indirectly dealt with in 743 the aforesaid judgment.
The preamble to the Act provides as follows: "An Act to provide for the acquisition and transfer of certain textile undertakings of the Swadeshi Cotton Mills Co. Ltd., with a view to securing the proper management of such undertakings so as to sub serve the interests of the general public by ensuring the continued manufacture, production and distribution of different varieties of cloth and yarn and thereby to give effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution and for matters connected therewith or incidental thereto.
WHEREAS the Swadeshi Cotton Mills Co. Ltd. has, through its six textile undertakings, been engaged in the manufacture and production of different varieties of cloth and yarn; AND WHEREAS the management of the said textile undertakings was taken over by the Central Government under section 18AA of the Industries (Development and Regulation) Act, 1951; AND WHEREAS large sums of money have been invested with a view to making the said textile undertakings viable; AND WHEREAS further investment of very large sums of money is necessary for the purpose of securing the optimum utilisation of the available facilities for the manufacture, production and distribution of cloth and yarn by the said textile undertakings of the Company; AND WHEREAS such investment is also necessary for securing the continued employment of the workmen employed in the said textile undertakings; AND WHEREAS it is necessary in the public interest to acquire the said textile undertakings of the Swadeshi Cotton Mills Company Ltd. to ensure that the interests of the general public are served by the continuance by the said undertakings of the Company of the manufacture, production and distribution of different varieties of cloth and yarn which are vital to the needs of the country; 744 AND WHEREAS such acquisition is for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution.
It is not correct that no public purpose was served by acquisition.
The reason for the taking over had been canvassed and discussed in the aforesaid judgment.
It was observed in the aforesaid judgment as follows: "It appears to us that sections 3 and 4 of the Act evolve a legislative policy and set out the parameters within which it has to be implemented.
We cannot find that there was any special intention to exclude the shares in this case as seen from the existence of at least four other Acquisition Acts which used identical phraseology in sections 3 and 4 and in other sections as well.
Reference was made to the Aluminium Corporation of India Limited (Acquisition and Transfer of Aluminium Undertakings) Act, 1984, the Amritsar Oil Works (Acquisition and Transfer of Undertakings) Act, 1982, the Britannia Engineering Company Limited (Mohameh Unit) and the Arthur Butler and Company (Muzaffarpore) Limited (Acquisition and Transfer of Undertakings) Act, 1978 and the Ganesh Flour Mills Company Limited (Acquisition and Transfer of Under takings) Act, 1984.
In the present case we are satisfied that the shares in question were held and utilised for the benefit of the undertakings for the reasons that (a) the shares in Swadeshi Polytex Limited were acquired from the income of the Kanpur Unit.
Reference may be made to page 23 of Compilation D III, (b) the shares held in Swadeshi Mining and Manufacturing Company were acquired in 1955.
Originally there were four companies and their acquisition has been explained fully in the Compilation D III with index, (c) the shares held in SPL were pledged or attached for running the Kanpur undertakings, for payment of ESI and Provident Fund dues for the workers of the Kanpur undertaking, for wages and payment of electricity dues of the Kanpur undertaking, (d) the shares held in SMMC were pledged for raising monies and loans of Rs.150 lakhs from the Punjab National Bank for running the Kanpur undertaking.
745 These loans fall in category II of Part I of the Schedule which liabilities have been taken over by the Government, (e) the shares held in SPL were offered for sale by SCM from time to time and to utilise the sale proceeds thereof by ploughing them back into the textile business for reviving the textile undertakings acquired under the Act.
It appears to us that the expression "forming part of" appearing in section 27 cannot be so read with section 4(1) as would have the effect of restricting or cutting down the scope and ambit of the vesting provisions in section 3(1).
The expression "pertaining to" does not mean "forming part of".
Even assuming that the expression "pertaining to" appearing in the first limb of section 4(1) means "forming part of", it would mean only such assets which have a direct nexus with the textile mills as would fall under the first limb of section 4(1).
The shares in question would still vest in the Central Government under the second limb of section 4(1) of the Act since the shares were bought out of the income of the textile mills and were held by the company in relation to such mills.
The shares would also fall in the second limb of section 3(1) being right and title of the company in relation to the textile mills.
On the construction of sections 3 and 4 we have come to the conclusion that the shares vest in the Central Government even if we read sections 3 and 4 in conjunction with sections 7 and 8 of the Act on the well settled principles which we have reiterated before.
The expression 'in relation to ' has been interpreted to be the words of widest amplitude.
See National Textile Corporation Ltd. and others vs Sitaram Mills Ltd. (supra).
Section 4 appears to us to be an expanding section.
It introduces a deeming provision.
Deeming provision is intended to enlarge the meaning of a particular word or to include matters which otherwise may or may not fall within the main provisions.
It is well settled that the word 'includes ' is an inclusive definition and expands the meaning.
See: The Corporation of the City of Nagpur vs Its Employees, ; and Vasudev Ramchandra Shelat vs Pranlal Jayanand Thakar and others, [1975] 1 S.C.R. 534.
The words 'all other rights and interests ' are words of widest amplitude.
Section 4 also uses the words "ownership, possession, 746 power or control of the Company in relation to the said undertakings".
The words 'pertaining to ' are not restrictive as mentioned hereinbefore.
" It was further held that section 8 provides for payment of compensation in lumpsum and the transfer and vesting of whatever is comprised in section 3.
The compensation provided in section 8 is not calculated as a total of the value of various individual assets.
It is a lumpsum compensation.
It was observed in the said judgment as follows: "Section 8 provides for payment of compensation is lumpsum and the transfer and vesting of whatever is comprised in section 3.
As section 4 expands the scope of section 3, the compensation mentioned in section 8 is for the property mentioned in section 3 read with section 4.
The compensation provided in section 8 is not calculated as a total of the value of various individual assets in the Act.
It is a lumpsum compensation.
See in the connection the principles enunciated by this Court in Khajamian Wakf Estates etc.
vs State of Madras and another, (supra).
There, it was held that even if it was assumed that no compensation was provided for particular item, the acquisition of the 'inam ' is valid.
In: the instant case section 8 provides for compensation to be paid to the undertakings as a whole and not separately for each of the interests of the company.
Therefore, it cannot be said that no compensation was provided for the acquisition of the undertaking as a whole.
" Therefore, it is incorrect to state that there was no compensation for taking over of the shares and the reasons for providing no separate compensation have been explained in the aforesaid judgment as follows: "Section 7 of the Act, in our opinion, neither controls sections 3 and 4 of the Act nor creates any ambiguity.
It was highlighted before us and in our opinion rightly that this sum of Rs.24.32 crores paid by way of compensation comes out of the public exchequer.
The paid up shares in its equity capital can necessarily have a face value only of the amounts so paid, irrespective of whatever may be contended to be the value of the assets and irrespective of whether any asset or property in relation to the undertak 747 ings, was taken into account.
After providing for compensation of Rs.24.32 crores to be paid to the Commissioner for payment to discharge Part I liabilities, Government has to undertake an additional 15 crores at least for discharging these liabilities.
To leave a company, the net wealth of which is negative at the time of take over of the management, with the shares held by it as investment in other company, in our opinion, is not only to defeat the principles of Article 39(b) and (c) of the Constitution but it will permit the company to reap the fruits of its mismanagement.
That would be an absurd situation.
It has to be borne in mind that the net wealth of the company at the time of take over, was negative, hence sections 3 and 4 can be meaningfully read if all the assets including the shares are considered to be taken over by the acquisition.
That is the only irresistible conclusion that follows from the construction of the documents and the history of this Act.
We have to bear in mind the Preamble of the Act which expressly recites that it was to ensure the principles enunciated in clauses (b) and (c) of Article 39 of the Constitution.
The Act must be so read that it further ensures such meaning and secures the ownership and control of the material resources to the community to subserve the common good to see that the operation of the economic system does not result in injustice.
We therefore, reiterate that the shares vested in the Central Government.
Accordingly the shares in question are vested in NTC and it has right over the said 34 per cent of the shareholdings.
" It was found by the said judgment that the net wealth of the company was negative and therefore, sections 3 and 4 could be meaningfully read if all the assets including the shares were considered to be taken over by the acquisition.
That was the only irresistible conclusion that followed from the construction of the documents and the history of the Act.
The Act in question was passed to ensure the principles enunciated in clauses (b) and (c) of Article 39 of the Constitution.
In that context, it was held that to leave a company, the net wealth of which was negative at the time of take over of the management with the shares hold by it as investment in other company, was not only to defeat the principles of Article 39(b) and (c) of the Constitution but it would permit the company to reap the fruits of its mismanagement.
748 That would be an absurd situation.
In this context, in our opinion, the contentions now sought to be urged are no longer open to the petitioners.
Shri Sorabjee drew our attention to the observations of this Court in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and others, He relied on the observations of Mahajan, J., as the learned Chief Justice then was at page 929 of the report.
He said: "Shorn of all its incidents, the simple definition of the power to acquire compulsorily or of the term 'eminent domain ' is the power of the sovereign to take property for public use without the owner 's consent.
The meaning of the power in its irreducible terms is, (a) power to take, (b) without the owner 's consent, (c) for the public use.
The concept of the public use has been inextricably related to an appropriate exercise of the power and is considered essential in any statement of its meaning.
Payment of compensation, though not an essential ingredient of the connotation of the term, is an essential element of the valid exercise of such power.
Courts have defined 'eminent domain ' so as to include this universal limitation as an essential constituent of its meaning.
Authority is universal in support of the amplified definition of 'eminent domain ' as the power of the sovereign to take property for public use without the owner 's consent upon making just compensation.
It is clear, therefore, that the obligation for payment of just compensation is a necessary incident of the power of compulsory acquisition of property, both under the doctrine of the English Common Law as well as under the continental doctrine of eminent domain, subsequently adopted in America." He also drew our attention to the observations of Mahajan, J. at pages 934 and 935 to the effect that the existence of a "public purpose" is undoubtedly an implied condition of the exercise of compulsory power of acquisition by the State, but the language of Article 31(2) of the Constitution does not expressly make it a condition precedent to acquisition.
It assumes that compulsory acquisition can be for a "public purpose" only, which is thus inherent in such acquisition.
It 749 was further observed at page 935 of the report that public purpose is an essential ingredient in the very definition of the expression "eminent domain" as given by Nichers and other constitutional writers, even though obligation to pay compensation is not a content of the definition but has been added to it by judicial interpretation.
The exercise of the power to acquire compulsorily is conditional on the existence of a public purpose and that being so, this condition is not an express provision of Article 31(2) but exists aliunde in the content of the power itself and that in fact is the assumption upon which this clause of the Article proceeds.
Our attention was drawn by Shri Sorabjee to the observations of Chandrasekhara Aiyar, J. at pages 1008 and 1009 of the aforesaid report, where the learned Judge observed as follows: "The payment of compensation is an essential element of the valid exercise of the power to take.
In the leading case of Attorney General vs De Keyser 's Royal Hotel Ltd.; , Lord Dunedin spoke of the payment of compensation as a necessary concomitant to the taking of property.
Bowen L.J. said in London and North Western Ry.
Co. vs Evans, & 18: The Legislature cannot fairly be supposed to intend, in the absence of clear words showing such intention, that one man 's property shall be confiscated for the benefit of others, or of the public, without any compensation being provided for him in respect of what is taken compulsorily from him.
Parliament in its omnipotence can, of course, override or disregard this ordinary principle . if it sees fit to do so, but it is not likely that it will be found disregarding it, without plain expressions of such a purpose.
" The learned Judge further observed that this principle is embodied in Article 31(2) of the Constitution.
Our attention was also drawn by Shri Sorabjee to the observations of Chandrasekhara Aiyar J. at pages 1018 and 1019 of the report.
Reliance was also placed on the observations of this Court in State of West Bengal vs Union of India, [1964] 1 S.C.R. 371 where Sinha, CJ at pages 433 and 434 of the report observed as follows: "In Kavalappara Kottarathil Kochuni vs State of Madras, 750 it was held that cls.
(1) and (2) of Article 31 as amended grant a limited protection against the exercise of different powers.
By cl.
(2) of Article 31 property is protected against compulsory acquisition or requisition.
The clause grants protection in terms of widest amplitude against compulsory acquisition or requisition of property, and there is nothing in the Article which indicates that the property protected is to be of individuals or corporations.
Even the expression 'person ' which is used in cl.
(1) is not used in cls.
(2) and (2A), and the context does not warrant the interpretation that the protection is not to be available against acquisition of State property.
Any other construction would mean that properties of municipalities or other local authorities which would admittedly fall within the definition of State in Part III either cannot be acquired at all or if acquired may be taken without payment of compensation.
Entry 42 in List III and cl.
(2) of Article 31, operate in the same field of legislation; the former enunciates the content of legislative power, and the latter restraints upon the exercise of that power.
For ascertaining whether an impugned piece of legislation in relation to acquisition or requisition of property is within legislative competence, the two provisions must be read together.
The two provisions being parts of a single legislative pattern relating to the exercise of the right which may for the sake of convenience be called of eminent domain the expression 'property ' in the two provisions must have the same import in defining the extent of the power and delineating restraints thereon.
In other words Article 31(2) imposes restrictions on the exercise of legislative power under Entry 42 of List III.
Property vested in the State may not therefore be acquired under a statute enacted in exercise of legislative power under Entry 42 unless the Statute complies with the requirements of the relevant clauses of Article 31.
" As mentioned hereinbefore these contentions are not open to the petitioners in the instant case.
It was held by the judgment of this Court in M/s. Doypack Systems Pvt.
Ltd. (supra) that there was a public purpose.
The public purpose was analysed and spelled out from the different provisions of the Act.
Secondly, there was compensation for the acquisition of the property.
Reference may be made to the observations of the said judgment to the following effect: 751 "Shri Nariman referred us to the Statement of Objects and Reasons appended to the Bill and urged that it was not intended that the shares were included in the undertaking.
He submitted that the Statement of Objects and Reasons showed that the acquisition of the undertaking had to be resorted to since the order of taking over the management of the company issued under section 18AA of the IDR Act could not be continued any further.
The preamble to the Act, however, reiterated that the Act provided for the acquisition and transfer of textile undertakings and reiterated only the historical facts that the management of the textile undertakings had been taken over by the Central Government under section 18AA of the IDR Act and further that large sums of money had been invested with a view to making the textile undertakings viable and it was necessary to make further investments and also to acquire the said undertakings in order to ensure that interests of general public are served by the continuance of the undertakings.
The Act was passed to give effect to the principles specified in clauses (b) and (c) of Article 39 of the Constitution.
In our opinion, this was indicative of the fact that shares were intended to be taken over.
" The contention of Shri Nariman that there was no public purpose for acquiring these shares had been noted in the judgment at pages 85 and 86 of the paper book.
It read as follows: "Shri Nariman further submitted that Swadeshi Polytex Limited and Swadeshi Mining and Manufacturing Company Limited were two separate undertakings distinct from the six textile undertakings belonging to Swadeshi Cotton Mills Company Limited.
Acquisition of these shares having controlling interests in the said two companies was never intended and could never be said to be within the scope of the Act.
The expression "in relation to the six textile undertakings" appearing in sections 3 and 4 of the Act, was an expression of limitation, according to him, indicative of the intention of acquiring of only the textile undertakings and no other.
There existed no public purpose, according to Shri Nariman, for acquiring these shares.
The public purposes mentioned in the Act with 752 reference to Article 39(b) and (c) related to the acquisition of only the textile undertakings of Swadeshi Cotton Mills and not acquisition of the synthetic fibre undertakings of Swadeshi Polytex or sugar undertakings of Swadeshi Mining and Manufacturing Company Limited.
" These contentions were dealt with and repelled as mentioned in the passages set out hereibefore.
We reiterate the said reasons.
It has further to be borne in mind that the shares held in the Swadeshi Polytex Limited themselves were the subject matter of both pledge and attachment to secure loans from the U.P. State Government of about Rs.66 lakhs for payment of wages to workers of the Kanpur undertaking and Rs.95 lakhs being electricity dues of the Kanpur undertaking owing to the U.P. State Electricity Board.
From all these, it would appear that the acceptance of the petitioners ' case, would mean that the State would pump in Rs.15 crores of public money to release the shares from its liabilities and thereafter hand over the shares free from such liability back to the company when the net worth of the company at the time of take over of management was negative and in the teeth of the present financial liabilities built up by the company the shares would inevitably have been sold in discharge of its liabilities and in any event the shares stood charged with the very liabilities which related to the undertakings of the company which were taken over by the Government.
Therefore, it is incorrect to say that there was no public purpose for taking over these shares.
It would be absurd to say that there was no compensation paid for the said acquisition.
The relevant observations in the judgment dealing with this contention have been set out hereinbefore.
Learned Attorney General drew our attention to the observations of this Court in Smt.
Somavanti and others vs The State of Punjab and others, where at page 792 of the report, this Court analysed the submissions based on the observations of this Court in State of Bihar vs Maharajadhiraja Sir Kameswarsingh of Darbhanga (supra) that the exercise of power to acquire compulsorily is conditional on the existence of public purpose and that being so this condition is not an express provision of Article 31(2) but exists aliunde in the content of the power itself.
That, however, was not the view of the other learned Judges who constituted the Bench.
According to Mukherjea, J. as the learned Chief Justice then was, the condition of the existenc of a public purpose is implied in Article 31(2).
See the observations in Maharajadhiraja Sir Kameswarsingh 's case at pages 957 and 958.
Das, J. as the learned Chief Justice then was, was 753 also of the same view.
See the observations in the aforesaid decision at pages 986 and 988.
Similarly, Patanjali Sastri C.J. had also taken the view that the existence of public purpose is an express condition of clause (2) of Article 31.
This Court reiterated in Somavanti 's case (supra) at page 792 of the report that the Constitution permitted acquisition by the State of private property only if it is required for a public purpose.
Furthermore, we are of the opinion that the law as declared by this Court in Doypack Systems Pvt.
Ltd. is binding on the petitioners and this question is no longer res integra in view of Article 141 of the Constitution.
See the observations of this Court in M/s. Shenoy and Co. represented by its partner Bele Srinivasa Rao Street, Bangalore and others vs The Commercial Tax Officer, Circle II Bangalore and others; , where this Court observed that the judgment of this Court in Hansa Corporations ' case reported in ; is binding on all concerned whether they were parties to the judgment or not.
This Court further observed that to contend that the conclusion therein applied only to the parties before this Court was to destroy the efficacy and integrity of the judgment and to make the mandate to Article 141 illusory.
In that view of the matter this question is no longer open for agitation by the petitioners.
It is also no longer open to the petitioners to contend that certain points had not been urged and the effect of the judgment cannot be collaterally challenged.
See in this connection the observations of this Court in T. Govindaraja Mudaliar etc.
vs The State of Tamil Nadu and others, [1973] 3 S.C.R. 222 where this Court at pages 229 and 230 of the report observed as follows: "The argument of the appellants is that prior to the decision in Rustom Cavasjee Cooper 's case it was not possible to challenge Chapter IV A of the Act owing to the decision of this Court that article 19(1)(f) could not be invoked when a case fell within article 31 and that was the reason why this Court in all the previous decisions relating to the validity of Chapter IV A proceeded on an examination of the argument whether there was infringement of article 19(1)(g), and clause (f) of that Article could not possibly be invoked.
We are unable to hold that there is much substance in this argument.
Bhanji, Munji and other decisions which followed it were based mainly on an examination of the inter relationship between Article 19(1)(g) and Article 754 31(2).
There is no question of any acquisition or requisition in Chapter IV A of the Act.
The relevant decision for the purpose of these cases was only the one given in Kochuni 's case after which no doubt was left that the authority of law seeking to deprive a person of his property otherwise than by way of acquisition or requisition was open to challenge on the ground that it constituted infringement of the fundamental rights guaranteed by article 19(1)(f).
It was, therefore, open to those affected by the provisions of Chapter IV A to have agitated before this Court the question which is being raised now based on the guarantee embodied in article 19(1)(f) which was never done.
It is apparently too late in the day now to pursue this line of argument, in this connection we may refer to the observations of this Court in Mohd. Ayub Khan vs Commissioner of Police Madras & Another, according to which even if certain aspects of a question were not brought to the notice of the court it would decline to enter upon re examination of the question since the decision had been followed in other cases.
In Smt.
Somavanti & others vs The State of Punjab and others, [1963] 2 S.C.R.774 a contention was raised that in none of the decisions the argument advanced in that case that a law may be protected from an attack under Article 31(2) but it would be still open to challenge under Article 19(1)(f), had been examined or considered.
Therefore, the decision of the Court was invited in the light of that argument.
This contention, however, was repelled by the following observations at page 794: "The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.
" In view of the preamble to the Act which states and proclaims that the Act was passed to carry out the object of Article 39(b) and (c) of the Constitution and in view of the scheme of the Act as analysed before us and as also apparent from the aforesaid judgment, it is clearly manifest that the Act in question was passed for a public purpose and for the acquisition of shares there was a public purpose.
The acquisition subserved the object of the Act.
The compensation in the manner indicated above and in the manner indicated in the 755 aforesaid judgment for such acquisition have been provided for.
No separate compensation need be provided in the circumstances of the case for these shares.
The factual basis for the legal challenge made in this writ petition was, therefore, incorrect in the facts of this case.
It is apparently too late in the day to contend that there was no compensation for the shares or that the acquisition of the shares amounted to confiscation or there was no public purpose in the Act.
The petition, in our opinion, is wholly devoid of any merit.
For these reasons, this writ petition fails and is accordingly dismissed.
S.L. Petition dismissed.
|
This writ petition challenged the constitutional validity of the Swadeshi Cotton Mills Ltd. (Acquisition and Transfer of Undertakings) Act, 1986.
The Central Government had passed an order for taking over the management of six undertakings of the Swadeshi Cotton Mills, in respect whereof there were proceedings in the High Court, and this Court by its judgment dated the 12th February, 1988, in M/s. Doyarpack Systems Pvt. Ltd. vs Union of India & Ors.
SLPs (Civil) Nos. 4826 & 7405 of 1987 had disposed of the matter.
The petitioners, claiming to be shareholders of the respondent No. 4 Swadeshi Cotton Mills Co. Ltd. and to have interest in its business, affairs and properties, filed this writ petition, contending that the effect of the decision of this Court above said was to take away valuable assets of the respondent No. 4, without paying any compensation therefor and to impose on respondent No. 4 liabilities without any corresponding assets available to discharge the liabilities, and further, that the acquisition virtually amounted to confiscation of the shares of respondent No. 5 and respondent No. 6 held by respondent No. 4, and that the rights of the shareholders of the respondent No. 4 were substantially damaged.
The petitioners challenged the vires and constitutional validity of sections 3 and 4 of the Swadeshi Cotton Mills Ltd. (Acquisition and Transfer of Undertakings) Act 1986 ( 'The Act ') in so far as those sought to divest respondent No. 4 of the shares in respondent No. 5 and respondent No. 6 and certain excluded assets, contending that the Act was violative of Articles 14 and 19(1)(g) of the Constitution.
Dismissing the petition, the Court, ^ HELD: The petitioners ' contentions were not tenable because all the contentions had been directly or indirectly dealt with in the judgment of this Court afore said.
It was not correct that no public 739 purpose was served by acquisition.
It was held that section 8 provides for payment of compensation in lumpsum and the transfer and vesting of whatever is comprised in section 3.
It was incorrect to state that there was no compensation for taking over of the shares.
It was found by the said judgment that the net wealth of the company was negative and, therefore, sections 3 and 4 could be meaningfully read if all the assets including the shares were considered to be taken over by the acquisition.
That was the only irresistible conclusion that followed from the construction of the documents and the history of the Act.
The Act in question was passed to ensure the principles enunciated in clauses (b) and (c) of Article 39 of the Constitution.
In that context, it was held that to leave a company, the net wealth of which was negative at the time of take over of the management with the shares held by it as investment in other company, was not only to defeat the principles of Article 39(b) and (c) of the Constitution but it would permit the company to reap the fruits of its mismanagement.
That would be as absurd situation.
In this context, the contentions now sought to be urged were no longer open to the petitioners.
It was held by the judgment of this Court aforementioned that there was a public purpose which was analysed and spelled out from the different provisions of the Act.
There was compensation for the acquisition of the property.
The contentions of the petitioners had been dealt with and repelled by the said judgment of this Court.
The Court reiterated the reasoning of that judgment.
[744B;746B;747F H] The acceptance of the petitioner 's case would mean that the State would pump in Rs.15 crores of public money to release the shares from its liabilities and then hand over the shares free from such liability back to the company when the net worth of the company at the time of take over of management was negative, and in the teeth of the present financial liabilities built up by the company the shares would inevitably have been sold in discharge of its liabilities and in any event the shares stood charged with the very liabilities which related to the undertakings of the company which were taken over by the Government.
Therefore, it was incorrect to say that there was no public purpose for taking over these shares.
It would be absurd to say that there was no compensation paid for the acquisition.
The law as declared by this Court in Doypack Systems Pvt.
Ltd. (supra) is binding on the petitioners and the question was no longer res integra in view of Article 141 of the Constitution.
See the observations of this Court in M/s. Shenoy and Co. represented by its partner Bele Srinivasa Rao Street, Bangalore, and others vs The Commercial Tax Officer, Circle II, Bangalore and Ors., ; [752C E;753B C] 740 In view of the preamble of the Act which states and proclaims that the Act was passed to carry out the object of Article 39(b) and (c) of the Constitution, and in view of the scheme of the Act as analysed before the Court and as apparent from the judgment of this Court aforesaid, it is clearly manifest that the Act was passed for a public purpose, and for the acquisition of shares there was a public purpose.
The acquisition subserved the object of the Act.
Compensation for such acquisition has been provided for.
No separate compensation need be provided for in the circumstances of the case for these shares.
The factual basis for the legal challenge made in this writ petition was incorrect in the facts of this case.
It was too late to contend that there was no compensation for the shares or that the acquisition of the shares amounted to confiscation or there was no public purpose in the Act.
The petition was wholly devoid of any merit.
[754G H; 755A B] M/s.
Doypack Systems Pvt. Ltd. vs Union of India & Ors.
, SLPs (Civil) Nos. 4826 and 7045 of 1987 decided by Supreme Court on 12.2.88; The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors., ; ; State of West Bengal vs Union of India, [1964] 1 SCR 371; Smt.
Somvanti & Ors.
vs The State of Punjab and Ors., ; M/s. Shenoy and Co. represented by its partner Bele Srinivasa Rao Street, Bangalore and Ors.
vs The Commercial Tax Officer, Circle II Bangalore and Ors., ; and T. Govindraja Mudalier, etc. etc.
vs The State of Tamil Nadu and Ors., ; , referred to.
|
ivil Appeal No. 4649 of 1989.
From the Judgment and Order dated 26.7.1988 of the Allahabad High Court in Review Application No. 27(W) of 1988.
Anil Dev Singh and Mrs. section Dikshit for the Appellants.
Yogeshwar Prasad, Vijay Hansaria, Sunil K. Jain, S.K. Jain for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, CJ.
The Respondent, Arun Govil had been granted a permanent commission in the Indian Air Force and was working as a Pilot Officer.
In the year 1972 he was declared unfit by a Medical Board and was, therefore, inval idated from I.A.F. The Government of India issued a scheme for the benefit of ex military officials.
The State of Uttar Pradesh also adopted the same scheme.
Under that scheme the ex military officials were appointed on Contract basis for a fixed term which could be extended from time to time subject to the suitability of the official concerned but not beyond 58 years of age.
Pursuant to the said scheme the State of Uttar Pradesh appointed the respondent as the Secretary, Zila Sainik Board, Unnao on 20th of August, 1979.
Paragraph 2 of the said order of appointment issued on 20th August, 1979 reads thus: "The appointment shah be on contract for a period of one 241 year w.e.f.
the date of assumption if it is not terminated earlier by giving a one month 's notice by the Hon 'ble Gover nor or on paying one month 's salary in lieu thereof or by giving one month 's notice, by the Officer.
" The respondent was required to furnish his acceptance of the terms and conditions contained in the said order includ ing the above term relating to the period of appointment and on his accepting the terms and conditions he was appointed as the Secretary in the District Soldiers Board in the district of Unnao in the State of Uttar Pradesh '.
The said term was extended retrospectively, first upto 20th August, 1982 by an order passed in September, 1981 and it 'was again extended upto 31st March, 1983 by an order made in February, 1983.
Again the term was extended upto 30th of August, 1985 by an order dated 1st June, 1983.
All these orders of exten sion were couched almost in the same language.
The relevant part of the last of such orders, namely, the order dated 1st June, 1983 reads as follows: "Sir, With reference to your letter No. 1020/Sa.
A.D.M./141, Dated 31.3.1982 on the above subject I am directed to say that the terms of the officers mentioned under para 2 who were appointed w.e.f.
the date mentioned in para 4 (has expired).
The Governor is therefore pleased to accord his sanction to extend the period of the contract upto the period mentioned under para 5 subject to the condi tion that their service tenure shall expire on completion of 58 years of age in case the same is completing earlier during the extended period.
No. Name and Date of Date of Recommen place of appoint expiry dation appoint ment of con extend ment tract the contract 1to 12 13 Ex Pilot 21.8.79 31.3.83 1.4.83 Arun Govil, 30.8.85 Unnao 14 to 21 242 2.
During the extended period of the contract conditions of service of officers shall remain same as are mentioned under their Appointment Order.
Letters of accept ance of relevant conditions of service to be obtained from these officers must be submitted to the Government at an early date.
" It is thus seen that the appointment of the respondent was indisputably in the nature of contract and under the last order of appointment refened to above he was entitled to continue in office in the post in question till 30th of August, 1985 and not beyond that date unless there was a further extension.
But on 29.3.1985 the service of the 1st Respondent was terminated by the issue of a notice and payment of one month 's salary.
The order was to be effective from the date of receipt of termination order and no charges were men tioned therein against the 1st respondent.
The respondent aggrieved by the said order of termina tion filed a Writ Petition on the file of the High Court of Allahabad in Writ Petition No. 3 164 of 1985.
A Division Bench of the High Court found that the order of termination that had been served on the respondent was an invalid one since it had been issued on the basis of Vigilance Report and no opportunity had been given to the respondent to show cause why such action should not be taken against him.
It is not necessary to set out all the reasons given by the High Court for setting aside the order of termination.
The High Court, however, held that the termination order could not be sustained and the Writ Petition was liable to be allowed.
The High Court further issued a direction to the effect that the respondent was entitled to salary upto the period he was entitled to remain in service.
In the instant case the respondent was entitled to be in service till 30th of Au guSt, 1985 unless there was a further extention.
In the Penultimate paragraph of the judgment the High Court further stated: "It is open for the opposite parties to con sider the claim of the petitioner for continu ation in service or of fresh appointment and no observations in this regard are being made by this Court.
" The judgment was delivered on 24.3.1988.
243 The respondent who was not satisfied by the order allow ing the Writ Petition as stated above preferred a Review Petition before the High Court contending that he was enti tled to be reinstated in service on the pronouncement of the Judgment on 24.3.
1988 notwithstanding the fact that his term of office had come to an end on 30th of August, 1985 as stated above and no further order of extention had been passed by the Governor.
In support of the Review Petition the respondent relied on an interim order which had been passed by the High Court during the pendency of the Writ Petition on 10th of July, 1986 which reads thus: "The post will be kept vacant and in case the petitioner succeeds in his Petition it would be made available forthwith to the petitioner by way of an appointment.
" The contention of the respondent was that the said interim order entitled him to be reinstated in service irrespective of the fact whether the Governor had extended the period of his appointment beyond 30th of August, 1985.
The High Court allowed the Review PetitiOn on 26.7.1988 and made an order reinstating the Respondent in service which reads as follows: "This is an application for review of our Judgment dated 24.3.1988 by which we allowed the Writ Petition filed by the Petitioner with certain directions.
It seems that when the writ petition was decided, our attention was not drawn towards the interim order dated 10.7.1986 passed by learned single Judge in which it was provided that one post will be kept vacant and in case the petitioner suc ceeds in his petition it would be made avail able forthwith to the petitioner by way of his appointment.
The petitioner has pointed out inaccuracy in the second paragraph of the operative part of the judgment which says that: "It is open for the opposite parties to consider the claim of the petitioner for continuation in service or of fresh appoint ment and no observations in this regard are being made by this Court."" Aggrieved by the above order made on review which di rected the State of Uttar Pradesh, the appellant herein, to reinstate the respondent in service, the State Government has filed this apeal by special leave.
It is not disputed that the scheme under which the respond ent 244 had been appointed provided for an appointment by contract for a specified term which could be extended from time to time and that the term of the respondent had been extended on different occasions after his first appointment and he was not entitled to continue in service beyond 30th August, 1985 unless there was a further extension.
Clauses 6 & 7 of the first order of appointment stated that the respondent was entitled to the leave admissible for temporary employees and for other matters he was to be treated as a temporary Government employee during the tenure of his office.
The appellant government never accepted the position that the respondent was entitled to be treated as a regular employee who had a vested right to continue to hold the post till he attained 58 years of age.
The true position that emerges from the material on record is that the respondent was employed only under a contract which specified the term of his appointment which extended only Upto 30th of August, 1985.
Since it is admitted that no order of 'extension had been sanctioned by the Governor beyond 30th August, 1985, the respondent was entitled to the salary and allowances due to him till 30th of August, 1985 if the order of termination of service served on him on 29.3.
1985 was found to be an invalid one.
It is on this basis that the High court had while setting aside the order of termination by its order dated 24.3.1988 directed that the respondent was entitled to salary upto the period he was entitled to remain in service and further observed that it was open for the opposite parties to consider the claim of the respondent for continu ation in service or of fresh appointment and no observations in this regard were made by the Court.
A reading of the Judgment of the High Court dated 24.3.1988 shows that the respondent had not urged before the High Court that the order of appointment issued in his case was not in the nature of a contract and the subsequent orders extending his period of appointment till 30th of August, 1985 were liable to be ignored and that he should be treated as a person regularly appointed in Government service entitled to con tinue till he completed the age of 58 years.
Even the order passed on Review on 26.7.1988 does not make out that the respondent had put forward at that stage such a case.
His only case was that the interim order that had been passed on 10.7.86 entitled him to be reinstated in service even though there was no order of extension of service.
If the respond ent was really aggrieved by the Judgment dated 24.3.1988 he should have preferred an appeal before this Court and that he did not do but on the other hand he proceeded to file a Review Petition claiming to be reinstated in service on the slender ground that the interim order conferred on him a right to continue in service beyond 30th of August, 1985 even though his service had not been extended by the Gover nor of Uttar Pradesh.
245 In the circumstances, we feel that while the High Court was right in disposing of the Writ Petition on 24.3.
1988 declaring that the respondent was entitled to salary upto the period he was entitled to remain in service, i.e., 30th August, 1985 it was not right in making an order on Review on 26.7.1988 relying upon the interim order dated 10.7.1986 which in the circumstances could not have the effect of controlling the jurisdiction of the High Court to dispose of the Writ Petition on merits as it did on 24.3.1988.
We, therefore, set aside the order dated 26.7.1988 passed by the High Court on review and restore the Judgment dated 24.3.1988 passed in the Writ Petition.
The interim order did not and could not amount to a direction that the respondent was entitled to be reinstated in service irrespective of the merits of the case and the extent of his right.
The order passed on review is wholly unsustainable.
We, however, make it clear that what we have stated above does not affect in any way what the High Court has stated in the penultimate paragraph of the Judgment dated 24.3.1988 which reads thus: "It is open for the opposite parties to con sider the claim of the petitioner for continu ation in service or the fresh appointment and no observations in this regard are being made by this Court.
" The appeal is accordingly allowed.
No costs.
T.N.A. Appeal allowed.
|
Pursuant to a scheme enacted for the benefit of ex military officials the appellant State appointed the re spondent on 20.8.1979 as Secretary Zila Sainik Board on contract basis for a specified period which was further extended upto 30.8.1985.
On 29.3.1985 the services of the respondent were terminated.
The respondent filed a writ petition before the High Court challenging the termination order.
By an order dated 24.3.1988 the High Court set aside the termination order holding that the respondent was entitled to salary upto the period he was entitled to remain in service i.e. upto 30.8.1985.
The respondent preferred a Review Petition before the High Court contending that pursuant to the interim order dated 10.7.1986 passed by the High Court he was entitled to be reinstated in service even though there was no order of extension of service.
By an order dated 26.7.1988, the High Court allowed the Review Petition directing the appellant State to reinstate the respondent in service.
Hence this appeal by the State.
Allowing the appeal and setting aside the order passed on Review, this Court, HELD: 1.
In the instant case, the appointment of the respondent was indisputably in the nature of contract and under tile order of appointment he was entitled to continue in office in the post in question till 30th of August, 1985 and not beyond that date unless there was a further exten sion.
Since no order of extension had been sanctioned by 240 the Governor beyond 30th August, 1985 the respondent was entitled to the salary and allowances due to him till 30th of August, 1985 if tile order of termination of service was found to be an invalid one.
[242B; 244C] 1.1 The High Court was right in disposing of the Writ Petition on 24.3.1988 declaring that the respondent was entitled to salary upto the period he was entitled to remain in service, i.e. 30th August, 1985.
But it was not right in making an order on Review on 26.7.1988 relying upon the interim order dated 10.7.1986 which ' in the circumstances could not have the effect of controlling the jurisdiction of the High Court to dispose of the Writ Petition on merits as it did on 24.3.1988.
[245A B] 2.
The interim order passed by the High Court did not and could not amount to a direction that the respondent was entitled to be reinstated in service irrespective of the merits of the case and the extent of his right.
The order passed on review is wholly unsustainable.
[245C]
|
(Corrected)
(Arising out of impugned final judgment and order dated 14-10-2022
in CRLA No. 136/2017 14-10-2022 in CRLA No. 137/2017 passed by the
High Court Of Judicature At Bombay At Nagpur)
Date : 15-10-2022 This matter was called on for hearing today.
For Petitioner(s) Mr. Tushar Mehta, SG
Mr. Siddharth Dharmadhikari,Adv.
Mr. Aditya A. Pande, AOR
Mr. Hrishikesh Chitaley, Adv.
Mr. Kanu Agarwal, Adv.
Ms. Gunjan Mangla, Adv.
Mr. Abhikalp Pratap Singh, Adv.
Mr. Bharat Bagla, Adv.
Mr. Suyog Deshpande, Adv.
Mr. Kaustubh Kadasne, Adv.
Mr. Pratyush Shrivastava, Adv.
For Respondent(s) Mr. R. Basant, Sr. Adv.
Mr. Jawahar Raja, Adv.
Mr. Chinmay Kanojia, Adv.
Mr. Akshay Sahay, Adv.
Mr. Archit Krishna, Adv.
Ms. Varsha Sharma, Adv.
Ms. Mooksha Sharma, Adv.
Mr. Manu Krishnan, Adv.
Mr. Vishnu P., Adv.
UPON hearing the counsel the Court made the following
Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court discharging the accused
mainly on the ground of irregular and/or invalid sanction to
prosecute Accused Nos. 1 to 5 and no sanction to prosecute at the
time of taking cognizance by the learned trial Court, so far as A-6
and not deciding the appeals on merits, the State of Maharashtra
has preferred the present Special Leave Petition(s).
We have heard Mr. Tushar Mehta, learned Solicitor General,
appearing on behalf of the State of Maharashtra and Mr. R. Basant,
learned Senior Advocate, appearing on behalf of Accused No.6 (G.N.
Saibaba) at length.
We have also gone through the judgment and order of conviction
passed by the learned trial Court as well as the impugned judgment
and order passed by the High Court.
At the outset, it is required to be noted that the learned
trial Court, by a detailed judgment and order and on appreciation
of the entire evidence on record, convicted the accused for the
offences punishable under Sections 13, 18, 20, 38 and 39 of
Unlawful Activities (Prevention) Act, 1967 read with Section 120-B
of the IPC.
The judgment and order passed by the learned trial Court was
the subject-matter of the appeals at the instance of the respective
accused including A-6. By the impugned judgment and order, the
High Court has discharged the Accused No.1-5 (except Accused No.2,
who died during the pendency of the proceedings), inter alia, on
the ground that the sanction to prosecute those accused was
vitiated and was invalid sanction as there was non-application of
mind on the part of the sanctioning/review authority inasmuch as
some material was not before the authority and no reasons were
assigned while granting the sanction. Accused No.6 has been
discharged on the ground that, at the time of taking cognizance
and/or framing the charge, there was no sanction to prosecute A-6
at all.
It is required to be noted that, even according to Accused
No.6, the appeals were argued on merits, the High Court has not
entered into the merits of the case and considered anything on
merits of the judgment and order of conviction and sentence passed
by the learned trial Court.
Thus, it is an admitted position and even otherwise, it cannot
be disputed that, while discharging the accused, the learned High
Court has not at all gone into the merits of the case and the
findings recorded by the learned trial Court, recorded while
convicting the accused for the aforesaid offences.
Having heard learned counsel for the respective parties and
having gone through the material on record, including the impugned
judgment and order passed by the High Court and even the trial
Court, the following important questions of law and facts arise to
be determined/considered in the present Special Leave Petition by
this Court.
1.Whether considering Section 465 Cr.P.C. whether after the
conclusion of the trial and the accused is convicted on merits
and on appreciation of evidences whether the appellate Court
is justified in discharging the accused (so far as Accused
Nos. 1 to 5 are concerned) on the ground of irregular
sanction, if any?
2.In a case where the learned trial Court has convicted the
accused on merits on appreciation of the evidences on record
and thereafter having found the accused guilty for the
offences for which they are tried, whether the appellate
court is justified in discharging the accused on the
ground of want of sanction and/or irregular sanction, more
particularly, when the objection with respect to no sanction
was not specifically raised by an appropriate application
during the trial and trial was permitted to be proceeded
further and thereafter the trial Court has convicted the
accused on appreciation of evidences on record?
3.What will be consequences of not raising the dispute with
respect to sanction during the trial and thereafter permitting
the trial Court to proceed further, and despite the
opportunities given to the accused even at the stage of
recording the further statement under Section 313 Cr.P.C.
when no objection to the want of sanction at the time of
taking cognizance was taken?
The aforesaid are the broad questions on which this Court is
required to consider in detail.
Then the next question which is posed at present is whether
the impugned judgment and order passed by the High Court
discharging the accused is required to be suspended at this stage
or not.
We have heard Mr. Tushar Mehta, learned Solicitor General,
appearing for the State of Maharashtra and Mr. R. Basant, learned
Senior Advocate, appearing for Accused No.6 (G.N. Saibaba) at
length on whether the impugned judgment and order passed by the
High Court discharging the accused is required to be suspended at
this stage or not.
It cannot be disputed and it is not in dispute that even
considering Section 390 of the Cr.P.C. and the decision of this
Court in the case of State of U.P. vs. Poosu and Another , (1976) 3
SCC 1, the appellate court in an appeal against acquittal may/can
even suspend the order of acquittal/discharge passed by the
appellate Court. Therefore, it is not disputed that this Court can
suspend the judgment and order passed by the High Court
acquitting/discharging the accused.
On merits, Shri Mehta, has vehemently submitted that looking
into the seriousness and gravity of the offences for which the
accused were convicted by the learned trial Court and this Court is
prima facie of the opinion that a detailed scrutiny is required so
far as the impugned judgment and order passed by the High Court is
concerned and as the High Court has not at all dealt with and/or
considered anything on merits, more particularly, the seriousness
and gravity of the offences for which the accused were convicted
and that during the pendency of the appeal, the accused were in
jail, except for a short time that too in the year 2015 on medical
grounds and thereafter the application filed by A-6 to suspend the
sentence under Section 389 Cr.P.C. was specifically rejected by the
High Court in the year 2020 including on the medical ground which
was pressed into service before the High Court, it is prayed to
suspend the impugned judgment and order passed by the High Court in
the peculiar facts and circumstances of the case.
Shri R. Basant, learned Senior Advocate, appearing for A-6 has
submitted that Accused No.6 is aged 55 years; he was a professor in
the University; he has a family staying in Delhi; his medical
condition is such that he is required to be released on bail; that
he is on wheel-chair; earlier also this Court specifically observed
in the order dated 04.04.2016 in SLP (Crl.) No. 249 of 2016 that a
case is made out for bail considering the medical condition of
Accused No.6 and that the accused are ready and willing to furnish
bail bond as per Section 437-A of the Cr.P.C. and even the High
Court, while passing the impugned judgment and order has also
directed the accused to furnish the fresh bond and therefore the
presence of the accused is secured, it is prayed not to suspend the
judgment and order passed by the High Court. It is further
submitted by Mr. Basant, learned Senior Advocate, that even the
petitioner may be released on bail on any condition that may be
imposed by this Court looking to the medical condition of A-6.
Having heard learned counsel for the respective parties and on
whether in the facts and circumstances of the case, the impugned
judgment and order passed by the High Court is required to be
suspended or not and giving our anxious thoughts, for the reasons
stated hereinbelow, we are of the opinion that this is a fit case
to exercise powers under Section 390 Cr.P.C. and to suspend the
impugned judgment and order passed by the High Court.
1.That the accused are convicted for the offences punishable
under Sections 13, 18, 20, 38 and 39 of Unlawful Activities
(Prevention) Act, 1967 read with Section 120-B of the IPC by
the learned trial Court, after detailed analysis of the
evidences on record and on re-appreciation of the entire
evidences on record;
2.The offences for which the accused were convicted by the
learned trial Court are very serious and if ultimately they
are tested by the High Court on merits and on merits the
State succeeds and the judgment and order passed by the
learned trial Court is upheld, the offences are very serious
against the sovereignty and integrity of the country;
3.the High Court has not at all dealt with and considered
anything on the merits of the judgment and order passed by the
learned trial Court, though even according to the learned
counsel appearing on behalf of A-6, the detailed
submissions were made on behalf of the Accused on merits of
the appeal and on the judgment and order of conviction and
sentence imposed by the learned trial Court;
4.The High Court has discharged the accused Nos. 1-5 only on the
ground that the sanction was invalid, mainly on the ground
that some material which was placed before the appropriate
authority at the time of sanction/review were placed were
available on the very day and that no reasons are given
while granting sanction. The same is required to be
considered in detail considering provision of Section 465
Cr.P.C. So far as the A-6 is concerned, the accused has been
discharged on the ground that there was no sanction the day on
which the learned trial Court took cognizance and even famed
the charge. However, the same question is required to be
considered in detail, more particularly, on the ground
stated hereinabove.
Now, so far as the prayer on behalf of A-6 to release him
on bail and/or not to suspend the impugned judgment and order
passed by the High Court is concerned and the reliance placed upon
some observations made by this Court in the order dated 04.04.2016
in SLP (Crl.) No.249 of 2016 is concerned, at the outset, it is
required to be noted that the observations made by this Court in
the oder dated 04.04.2016 were prior to the A-6 was convicted by
the learned trial Court. Thereafter, the A-6 has been convicted by
the learned trial Court on merits and on appreciation of evidences.
Thereafter, an application under Section 389 Cr.P.C. was made by
the A-6 which had been rejected by the High Court. In the recent
order dated 28.07.2020 while considering the request made by the A-
6 to release him on bail during the pendency of the appeal on
medical ground, the same came to be dismissed/rejected by the High
Court by a detailed order. The medical ground also came to be
considered by the High Court and in para 8, it is observed as
under:
“8. As regards worsening medical condition of the
applicant as sought to be urged by him, we find that
in the application moved by the applicant except for
narrating the ailments said to be suffered by him,
there are no further details given. It has not been
pointed out in the application that after 25.03.2019
when the application under Section 389 of the Code
was rejected, the applicant has further contracted
ailments as alleged. In any event, we find from the
reply filed by the Chief Medical Officer, Central
Prison Nagpur that appropriate medical aid is being
provided to the applicant. The treatment being
rendered and the applicant’s examination by experts
is also evident on record.”
In view of the above, we are of the firm opinion that the
impugned judgment and order passed by the High Court is required to
be suspended.
For the reasons stated above, the impugned judgment and order
passed by the High Court is ordered to be suspended till further
orders.
Issue notice, returnable on 08.12.2022.
Shri N. Sai Vinod, learned AOR, accepts service of notice on
behalf of A-6 (G.N. Sai Baba). For rest of the respondents, dasti,
in addition, is permitted.
Counter, if any, be filed on behalf of A-6 within a period of
four weeks from today. Counter on behalf of rest of the accused be
filed within 4 weeks from service of notice of the present order.
(Arising out of impugned final judgment and order dated 14-10-2022
in CRLA No. 136/2017 14-10-2022 in CRLA No. 137/2017 passed by the
High Court Of Judicature At Bombay At Nagpur)
Date : 15-10-2022 This matter was called on for hearing today.
For Petitioner(s) Mr. Tushar Mehta, SG
Mr. Siddharth Dharmadhikari,Adv.
Mr. Aditya A. Pande, AOR
Mr. Hrishikesh Chitaley, Adv.
Mr. Kanu Agarwal, Adv.
Ms. Gunjan Mangla, Adv.
Mr. Abhikalp Pratap Singh, Adv.
Mr. Bharat Bagla, Adv.
Mr. Suyog Deshpande, Adv.
Mr. Kaustubh Kadasne, Adv.
Mr. Pratyush Shrivastava, Adv.
For Respondent(s) Mr. R. Basant, Sr. Adv.
Mr. Jawahar Raja, Adv.
Mr. Chinmay Kanojia, Adv.
Mr. Akshay Sahay, Adv.
Mr. Archit Krishna, Adv.
Ms. Varsha Sharma, Adv.
Ms. Mooksha Sharma, Adv.
Mr. Manu Krishnan, Adv.
Mr. Vishnu P., Adv.
UPON hearing the counsel the Court made the following
Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court discharging the accused
mainly on the ground of irregular and/or invalid sanction to
prosecute Accused Nos. 1 to 5 and no sanction to prosecute at the
time of taking cognizance by the learned trial Court, so far as A-6
and not deciding the appeals on merits, the State of Maharashtra
has preferred the present Special Leave Petition(s).
We have heard Mr. Tushar Mehta, learned Solicitor General,
appearing on behalf of the State of Maharashtra and Mr. R. Basant,
learned Senior Advocate, appearing on behalf of Accused No.6 (G.N.
Saibaba) at length.
We have also gone through the judgment and order of conviction
passed by the learned trial Court as well as the impugned judgment
and order passed by the High Court.
At the outset, it is required to be noted that the learned
trial Court, by a detailed judgment and order and on appreciation
of the entire evidence on record, convicted the accused for the
offences punishable under Sections 13, 18, 20, 38 and 39 of
Unlawful Activities (Prevention) Act, 1967 read with Section 120-B
of the IPC.
The judgment and order passed by the learned trial Court was
the subject-matter of the appeals at the instance of the respective
accused including A-6. By the impugned judgment and order, the
High Court has discharged the Accused No.1-5 (except Accused No.2,
who died during the pendency of the proceedings), inter alia, on
the ground that the sanction to prosecute those accused was
vitiated and was invalid sanction as there was non-application of
mind on the part of the sanctioning/review authority inasmuch as
some material was not before the authority and no reasons were
assigned while granting the sanction. Accused No.6 has been
discharged on the ground that, at the time of taking cognizance
and/or framing the charge, there was no sanction to prosecute A-6
at all.
It is required to be noted that, even according to Accused
No.6, the appeals were argued on merits, the High Court has not
entered into the merits of the case and considered anything on
merits of the judgment and order of conviction and sentence passed
by the learned trial Court.
Thus, it is an admitted position and even otherwise, it cannot
be disputed that, while discharging the accused, the learned trial
Court has not at all gone into the merits of the case and the
findings recorded by the learned trial Court, recorded while
convicting the accused for the aforesaid offences.
Having heard learned counsel for the respective parties and
having gone through the material on record, including the impugned
judgment and order passed by the High Court and even the trial
Court, the following important questions of law and facts arise to
be determined/considered in the present Special Leave Petition by
this Court.
1.Whether considering Section 465 Cr.P.C. whether after the
conclusion of the trial and the accused is convicted on merits
and on appreciation of evidences whether the appellate Court
is justified in discharging the accused (so far as Accused
Nos. 1 to 5 are concerned) on the ground of irregular
sanction, if any?
2.In a case where the learned trial Court has convicted the
accused on merits on appreciation of the evidences on record
and thereafter having found the accused guilty for the
offences for which they are tried, whether the appellate
court is justified in discharging the accused on the
ground of want of sanction and/or irregular sanction, more
particularly, when the objection with respect to no sanction
was not specifically raised by an appropriate application
during the trial and trial was permitted to be proceeded
further and thereafter the trial Court has convicted the
accused on appreciation of evidences on record?
3.What will be consequences of not raising the dispute with
respect to sanction during the trial and thereafter permitting
the trial Court to proceed further, and despite the
opportunities given to the accused even at the stage of
recording the further statement under Section 313 Cr.P.C.
when no objection to the want of sanction at the time of
taking cognizance was taken?
The aforesaid are the broad questions on which this Court is
required to consider in detail.
Then the next question which is posed at present is whether
the impugned judgment and order passed by the High Court
discharging the accused is required to be suspended at this stage
or not.
We have heard Mr. Tushar Mehta, learned Solicitor General,
appearing for the State of Maharashtra and Mr. R. Basant, learned
Senior Advocate, appearing for Accused No.6 (G.N. Saibaba) at
length on whether the impugned judgment and order passed by the
High Court discharging the accused is required to be suspended at
this stage or not.
It cannot be disputed and it is not in dispute that even
considering Section 390 of the Cr.P.C. and the decision of this
Court in the case of State of U.P. vs. Poosu and Another , (1976) 3
SCC 1, the appellate court in an appeal against acquittal may/can
even suspend the order of acquittal/discharge passed by the
appellate Court. Therefore, it is not disputed that this Court can
suspend the judgment and order passed by the High Court
acquitting/discharging the accused.
On merits, Shri Mehta, has vehemently submitted that looking
into the seriousness and gravity of the offences for which the
accused were convicted by the learned trial Court and this Court is
prima facie of the opinion that a detailed scrutiny is required so
far as the impugned judgment and order passed by the High Court is
concerned and as the High Court has not at all dealt with and/or
considered anything on merits, more particularly, the seriousness
and gravity of the offences for which the accused were convicted
and that during the pendency of the appeal, the accused were in
jail, except for a short time that too in the year 2015 on medical
grounds and thereafter the application filed by A-6 to suspend the
sentence under Section 389 Cr.P.C. was specifically rejected by the
High Court in the year 2020 including on the medical ground which
was pressed into service before the High Court, it is prayed to
suspend the impugned judgment and order passed by the High Court in
the peculiar facts and circumstances of the case.
Shri R. Basant, learned Senior Advocate, appearing for A-6 has
submitted that Accused No.6 is aged 55 years; he was a professor in
the University; he has a family staying in Delhi; his medical
condition is such that he is required to be released on bail; that
he is on wheel-chair; earlier also this Court specifically observed
in the order dated 04.04.2016 in SLP (Crl.) No. 249 of 2016 that a
case is made out for bail considering the medical condition of
Accused No.6 and that the accused are ready and willing to furnish
bail bond as per Section 437-A of the Cr.P.C. and even the High
Court, while passing the impugned judgment and order has also
directed the accused to furnish the fresh bond and therefore the
presence of the accused is secured, it is prayed not to suspend the
judgment and order passed by the High Court. It is further
submitted by Mr. Basant, learned Senior Advocate, that even the
petitioner may be released on bail on any condition that may be
imposed by this Court looking to the medical condition of A-6.
Having heard learned counsel for the respective parties and on
whether in the facts and circumstances of the case, the impugned
judgment and order passed by the High Court is required to be
suspended or not and giving our anxious thoughts, for the reasons
stated hereinbelow, we are of the opinion that this is a fit case
to exercise powers under Section 390 Cr.P.C. and to suspend the
impugned judgment and order passed by the High Court.
1.That the accused are convicted for the offences punishable
under Sections 13, 18, 20, 38 and 39 of Unlawful Activities
(Prevention) Act, 1967 read with Section 120-B of the IPC by
the learned trial Court, after detailed analysis of the
evidences on record and on re-appreciation of the entire
evidences on record;
2.The offences for which the accused were convicted by the
learned trial Court are very serious and if ultimately they
are tested by the High Court on merits and on merits the
State succeeds and the judgment and order passed by the
learned trial Court is upheld, the offences are very serious
against the sovereignty and integrity of the country;
3.the High Court has not at all dealt with and considered
anything on the merits of the judgment and order passed by the
learned trial Court, though even according to the learned
counsel appearing on behalf of A-6, the detailed
submissions were made on behalf of the Accused on merits of
the appeal and on the judgment and order of conviction and
sentence imposed by the learned trial Court;
4.The High Court has discharged the accused Nos. 1-5 only on the
ground that the sanction was invalid, mainly on the ground
that some material which was placed before the appropriate
authority at the time of sanction/review were placed were
available on the very day and that no reasons are given
while granting sanction. The same is required to be
considered in detail considering provision of Section 465
Cr.P.C. So far as the A-6 is concerned, the accused has been
discharged on the ground that there was no sanction the day on
which the learned trial Court took cognizance and even famed
the charge. However, the same question is required to be
considered in detail, more particularly, on the ground
stated hereinabove.
Now, so far as the prayer on behalf of A-6 to release him
on bail and/or not to suspend the impugned judgment and order
passed by the High Court is concerned and the reliance placed upon
some observations made by this Court in the order dated 04.04.2016
in SLP (Crl.) No.249 of 2016 is concerned, at the outset, it is
required to be noted that the observations made by this Court in
the oder dated 04.04.2016 were prior to the A-6 was convicted by
the learned trial Court. Thereafter, the A-6 has been convicted by
the learned trial Court on merits and on appreciation of evidences.
Thereafter, the applications under Section 389 Cr.P.C. was made by
the A-6 which had been rejected by the High Court. In the recent
order dated 28.07.2020 while considering the request made by the A-
6 to release him on bail during the pendency of the appeal on
medical ground, the same came to be dismissed/rejected by the High
Court by a detailed order. The medical ground also came to be
considered by the High Court and in para 8, it is observed as
under:
“8. As regards worsening medical condition of the
applicant as sought to be urged by him, we find that
in the application moved by the applicant except for
narrating the ailments said to be suffered by him,
there are no further details given. It has not been
pointed out in the application that after 25.03.2019
when the application under Section 389 of the Code
was rejected, the applicant has further contracted
ailments as alleged. In any event, we find from the
reply filed by the Chief Medical Officer, Central
Prison Nagpur that appropriate medical aid is being
provided to the applicant. The treatment being
rendered and the applicant’s examination by experts
is also evident on record.”
In view of the above, we are of the firm opinion that the
impugned judgment and order passed by the High Court is required to
be suspended.
For the reasons stated above, the impugned judgment and order
passed by the High Court is ordered to be suspended till further
orders.
Issue notice, returnable on 08.12.2022.
Shri N. Sai Vinod, learned AOR, accepts service of notice on
behalf of A-6 (G.N. Sai Baba). For rest of the respondents, dasti,
in addition, is permitted.
Counter, if any, be filed on behalf of A-6 within a period of
four weeks from today. Counter on behalf of rest of the accused be
filed within 4 weeks from service of notice of the present order.
|
The Supreme Court on Saturday suspended the decision of the Nagpur Bench of the Bombay High Court acquitting former Delhi University professor GN Saibaba in an alleged Maoist links case. (State of Maharashtra vs Mahesh Tirki and ors)
The order was passed by a bench of Justices MR Shah and Bela M Trivedi at a special sitting held at 11 am.
"We are of the opinion that it is a fit case to exercise power under 390 of Code of Criminal Procedure and suspend the order of the High Court....the medical grounds of the accused was presented and rejected by the High Couyrt during a bail plea earlier. Thus, High Court order stands suspended. Issue notice," the top court directed.
The Court, however, said that the accused would be at liberty to move for bail.
"We are only saying judgment suspended but you can file bail application," the bench said.
The Court also turned down the plea by Saibaba to be kept under house arrest on medical grounds, instead of being put in jail.
"The bail plea by accused was rejected by High Court in 2020 even on medical grounds which was pressed then as well," the Court said.
This was after Solicitor General (SG) Tushar Mehta, appearing for the Maharashtra government, strongly objected to the same.
"There is a recent tendency from urban naxals to seek house arrests. But everything can be done from within the home for them. even by phone. Please say that house arrest can never be an option," the SG argued.
The order was passed after the Maharashtra government contended that failure to grant sanction cannot lead to acquittal in view of Section 465 of the Code of Criminal Procedure.
The Court said that the High Court did not consider the case on merits bit acquitted the accused due to lack of sanction of the Central government required under Section 45 of the Unlawful Activities Prevention Act (UAPA).
"This court is of prima facie opinion that a detailed scrutiny is required with regard to the impugned judgment since High Court has not considered the merits of the case including the gravity of the offence alleged against him," the order said.
The Court further opined that the accused were convicted after detailed appreciation of evidence.
"Offences are very serious and if the State succeeds on merits, offences are very serious against the interest of the society, sovereignty and integrity of India. High Court order is based on no sanction," the bench opined.
Pertinently, it noted that the issue raises certain important questions of law and proceeded to issue notice to GN Saibaba while framing the following questions of law for consideration:
Whether considering Section 465 Cr.P.C. whether after the conclusion of the trial and the accused is convicted on merits and on appreciation of evidences whether the appellate Court is justified in discharging the accused (so far as Accused Nos. 1 to 5 are concerned) on the ground of irregular sanction, if any?
In a case where the learned trial Court has convicted the accused on merits on appreciation of the evidences on record 4 and thereafter having found the accused guilty for the offences for which they are tried, whether the appellate court is justified in discharging the accused on the ground of want of sanction and/or irregular sanction, more particularly, when the objection with respect to no sanction was not specifically raised by an appropriate application during the trial and trial was permitted to be proceeded further and thereafter the trial Court has convicted the accused on appreciation of evidences on record?
What will be consequences of not raising the dispute with respect to sanction during the trial and thereafter permitting the trial Court to proceed further, and despite the opportunities given to the accused even at the stage of recording the further statement under Section 313 Cr.P.C. when no objection to the want of sanction at the time of taking cognizance was taken?
The Supreme Court does not in the normal course sit to hear cases on Saturdays and Sundays.
The matter was listed for Saturday after an urgent mentioning was made on Friday evening by Solicitor General Tushar Mehta seeking listing of the case on priority.
The mentioning was made hours after the High Court delivered its judgment.
The Bombay High Court bench of Justices Rohit Deo and Anil Pansare had allowed the appeal filed by Saibaba challenging a 2017 decision of the trial court convicting and sentencing him to life imprisonment based on the fact that the Sessions Court framed charges against Saibaba in the absence of sanction from the Central government under Section 45(1) of the Unlawful Activities (Prevention) Act (UAPA).
The High Court had recorded that while terrorism poses an ominous threat to national security and every legitimate weapon in the armoury must be deployed against it, a civil democracy cannot sacrifice procedural safeguards afforded to the accused.
“We are inclined to hold, that every safeguard, however miniscule, legislatively provided to the accused, must be zealously protected,” the High Court had said.
During the hearing before the apex court on Saturday, SG Mehta said that mere inadequacy of sanction will not vitiate the trial.
"Sanction is to ensure the accused is not subject to vexatious trial. This is not a vexatious investigation. If full fledged trial takes place, then there is no question of sanction, and thus comes Section 465 of Code of Criminal Procedure (CrPC)," the SG said.
Section 465 provides that "no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby."
"Rigour of 465 meaning that mere inadequacy of sanction will not vitiate the trial," the SG contended.
Further, he said that the facts of the case are very disturbing.
"(The accused) supports use of arms in throwing out parliamentary form of democracy and encourages separatist actions in Jammu and Kashmir. All actions against nation, attacking our security forces and even arranging meeting of commanders of naxalite forces," it was submitted.
The SG also submitted that with respect to accused 1 to 5, sanction was granted in 2014.
"So far as accused 6 (GN Saibaba) is concerned sanction order came late and IO was already examined so that was recalled and accused did not object to that. It was placed before the High Court and the High Court did not even touch that aspect," the SG said.
Accused 1 to 5 were foot soldiers while accused 6 was the mastermind, he added.
"The role of accused was considered elaborately while considering sanction of first 5 accused," Mehta argued.
"What is the current status: all are in jail," the bench asked.
"Yes all in jail. Accused number 2 has expired," the SG responded.
Senior Advocate R Basant, appearing for Saibaba, said that it has been fairly accepted that there was no sanction order against GN Saibaba.
The bench, however, asked whether any independent objection was raised regarding sanction during trial.
"We are asking was any specific independent objection raised by you during trial regarding sanction. Yes or No? A simple question. Show us that, if any application was made," Justice Shah queried.
"No application was made. But during cross-examination, plea was raised," Basant replied.
"In the entire Section 313 statement, the question of sanction was put to you, but except saying you are falsely implicated, you did not raise this plea," Justice Shah pointed out.
The bench then said that it will formulate the questions of law to be considered.
"We will formulate the questions of law and you can respond. But in the meantime we have to decide what has to be done ," Justice Shah said.
"As a caveator please do not suspend the order," Basant replied.
"You all are very experienced lawyers. Have you given any judgment of High Court where the accused has been acquitted solely on the basis of validity of sanction without going into merits or reversing the finding on merits," asked Justice Trivedi.
Basant contended that Saibaba' case before High Court was argued in full including on merits of the allegations against him; however, the High Court chose to grant relief only based on the procedural lapse and without going into the merits.
"We had argued the matter in full and the High Court did not consider the matter in full and passed an order only the basis of sanction. So if it is halted then I continue to suffer incarceration," he said.
"So High Court committing a mistake by not considering this and taking a shortcut.. can the benefit of that be available to the accused? We are only finding fault with the High court here," the bench said.
Basant said that it was not a short cut but a legally correct approach. He then highlighted the medical condition of Saibaba.
"I will point our certain circumstances which will persuade you to not suspend the order. I am aged 55, I have 23-year-old unmarried daughter in Delhi. The accused is physically disabled to the extent of 90%. He has multiple other ailments which is judicially accepted. The person is confined to the wheel chair and he is sick and infirm. no criminal antecedent against him and not even a prosecution," Basant pointed out.
Basant also pointed out the accused was granted bail twice before and he never abused any of the bail conditions.
"He is in wheelchair and there is no one to even handle his calls of nature. Other jailed persons are helping him and it is causing him stress," Basant said.
The bench said that he can then move for bail and it will be considered.
"You can file an application for bail, we will consider it."
Basant then proceeded to stress upon the importance of sanction under Section 45.
"The nature and effect of sanction under Section 45 UAPA must be seen. In Maharashtra, the head of Prosecution is the sanctioning authority. This as per me it is a betrayal of statutory provision. I submit the High Court has not committed any error. Such is the importance of sanction under UAPA," he contended.
Basant also prayed that the accused be kept under house arrest instead of jail.
"Let me preserve my health. please let me remain in my house," it was contended.
The SG, however, opposed the same.
"He applied for bail after being taken into custody and then his bail was rejected. The court noted that bail was rejected noting the nature of accusations against him and there is nothing on record to show anything apart from his health reasons. There is sanction but it was only delayed sanction," he asked.
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1 of 4 18-ABA-129-24
Shantilal Yashwant Kharat ..Applicant
Versus
State of Maharashtra ..Respondent
Dr. Samarth S. Karmarkar a/w. Janathan D’Silva i/b. Karmarkar
and Associates for Applicant.
Ms. Mahalakshmi Ganapathy, APP for State/Respondent.
Mr. Durivendra Dubey a/w. Mr. Dileep Vishwakarma i/b.
Shashikant Dubey for Intervenor.
1.The Applicant is seeking anticipatory bail in connection
with C.R.No. 167 of 2023 registered at Rasayani Police Station,
District Raigad, on 07.08.2023, under sections 406, 420, 494, 498-
A, 504 and 506 of the Indian Penal Code.
2.Heard Dr. Samarth Karmarkar, learned counsel for the
applicant, Ms. Mahalakshmi Ganapathy, learned APP for the State
and Mr. Durivendra Dubey, learned counsel for the Intervenor. Gokhale
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2 of 4 18-ABA-129-24
3.The F .I.R. is lodged by the informant. She has stated
that, she came across the applicant’s profile on a matrimonial site.
Both of them contacted each other. The applicant met the
informant in April 2022. They got married on 15.06.2022. After
marriage the applicant asked for financial help. The informant had
given him Rs.7 lakhs. The applicant pledged her ornaments and
obtained loan of Rs.32 lakhs. In December 2022, she saw some
indications that the applicant was having an affair with his
colleague. The informant came back to her parental house on
05.01.2023. She made enquiries and she came to know that the
applicant had married four times before marrying the informant.
His first wife had passed away. On this basis the F .I.R. is lodged.
4.Learned counsel for the applicant submitted that the
allegations in the F .I.R. are not correct. His wife had passed away
and thereafter he had married the present informant alone. He had
not married anybody else in between. All the allegations are false.
5.Learned counsel for the intervenor submitted that,
there are documents showing the applicant’s marriage with other
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3 of 4 18-ABA-129-24
ladies and there are documents in the nature of birth certificates
etc. mentioning his name as the father.
6.Learned APP supported the contentions of the learned
counsel for the intervenor and produced the investigation papers
before the Court.
7.I have considered these submissions. The investigation
papers contain certain documents. There is a birth certificate in
respect of a girl child born on 03.05.2009. The mother’s name is
mentioned in that birth certificate. The father is shown as the
present applicant. There is another birth certificate of another girl
child. She was born on 15.04.2009. In that certificate, name of the
mother is different, but the applicant’s name as father is common.
Thus, there are two birth certificates in the year 2009 in respect of
two girls in which mothers were different but the father is the
applicant himself.
8.There are proceedings of divorce by mutual consent
filed in the year 2008, in which, the applicant’s wife was another
lady ‘P’. These divorce proceedings were over resulting in divorce.
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4 of 4 18-ABA-129-24
There is another divorce proceedings still pending; filed in the year
2018, in which, the wife is named as ‘K’. Thus, there is sufficient
material to show that the applicant has cheated many women. All
this was concealed from the present first informant. Therefore, the
offence of cheating is clearly made out apart from other offences.
No case for grant of anticipatory bail order is made out.
9.The application is rejected.
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|
The Bombay High Court recently rejected the anticipatory bail plea of a man in a cheating case after it found that he had married at least five women and concealed the same [Shantilal Yashwant Kharat v State of Maharashtra].
Justice Sarang V Kotwal concluded there was sufficient material to show that the accused (applicant) had cheated many women.
“No case for grant of anticipatory bail order is made out,” the Court said.
The accused, Shantilal Yashwant Kharat had approached the Court seeking anticipatory bail in a case registered by the Raigad police last year on a complaint moved by his wife.
As per the complainant, she met Kharat in April 2022 through a matrimonial site and two months later, they married.
After marriage, the accused allegedly sought financial help from the complainant and she gave him ₹ 7 lakhs. He also obtained a loan of ₹ 32 lakhs by pledging her ornaments, the complainant said.
The complainant later suspected that the accused was having an affair with his colleague and went back to her parental house in January 2023.
She further found that the accused had married four times before marrying her and that his first wife had passed away, as per the complaint.
On the basis of the complaint, the Police registered a case under various provisions of the Indian Penal Code including for cheating, bigamy and criminal breach of trust.
However, the accused told the Court that his wife had passed away and thereafter, he had only married the complainant and no one else.
On the other hand, the counsel representing the complainant submitted that there were documents showing that the accused had married other women.
The Court perused the documents produced before it by the Police and found that the accused had not only married other women but was also the father of two children.
“... there are two birth certificates in the year 2009 in respect of two girls in which mothers were different but the father is the applicant himself,” the Court noted.
It also took into account the documents showing divorce proceedings dating back to 2008 and 2018 in relation to the accused.
“All this was concealed from the present first informant. Therefore, the offence of cheating is clearly made out apart from other offences,” the Court while dismissing the plea.
Advocate Dr. Samarth Karmarkar represented the accused.
Advocate Dwivendra Dubey represented the complainant.
Additional Public Prosecutor Mahalakshmi Ganapathy represented the State.
|
1. Sandesh Madhukar Salunkhe
2. Abhishek Amrit Salunkhe …. Petitioners
v/s.
The State of Maharashtra and anr. …. Respondents
Mr. Umesh Mankapure for the Petitioners.
Ms. M.M. Deshmukh, APP for the State.
Mr. Dilip Shinde for the Respondent No.2.
.With consent, heard finally at the stage of admission.
2.By this Petition filed under Article 226 of the Constitution of
India, the Petitioners seek to quash the FIR No.0009/2021 registered
with Bhilawadi Police Station, Dist. Sangli and consequent charge sheet
being RCC Case No.86/2021 pending before the learned Joint Civil
Judge, Junior Division, Palus for offences punishable under sections
406, 498-A, 504, 506 r/w. 34 of the Indian Penal Code.
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3.Heard learned counsel for the Petitioners, learned APP for the
State and learned counsel for the Respondent No.2. We have perused
the records and considered the submissions advanced by the learned
counsel for Respondent No.2.
4.The aforesaid crime was registered pursuant to the FIR lodged by
the Respondent No.2. The marriage of the Respondent No.2 and Amol
Amrit Salunkhe was solemnized on 13/07/2020. The Respondent No.2
claims that she was driven out of her matrimonial home in November,
2020. She lodged the FIR on 09/01/2021 alleging that her husband –
Amol Salunkhe was unable to establish conjugal relationship with her
since the date of her marriage. She has further alleged that her in-laws
use to taunt and insult her. The Petitioner No.1 is the brother-in-law of
the Respondent No.2. The only allegation levelled against these
Petitioners being the brother and cousin of the husband of Respondent
No.2 are that they commented that the Respondent No.2 does not
know how to cook and that her parents have not taught her anything.
5.Needless to state that petty quarrels do not constitute cruelty
within the meaning of Section 498-A of IPC. In order to constitute an
offence under Section 498-A, there must be prima facie material to
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prove (a) willful conduct of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life,
limb or health of the woman ; (b) that they had harassed her with a
view to coerce her to satisfy unlawful demand of dowry. It has to be
established that the woman has been subjected to cruelty continuously
or persistently or at least in close proximity of time of lodging the
complaint. Reliance is placed on the decision of the Apex Court in
Manju Ram Kalita v/s. State of Assam (2009) 13 SCC 330.
6.In the instant case, the only allegation levelled against these
Petitioners is that they had commented that Respondent No.2 does not
know how to cook. Such comment does not constitute ‘cruelty’ within
the meaning of the Explanation to Section 498-A of the Indian Penal
Code.
7.In State of Haryana and others v/s. Ch. Bhajan Lal and others
AIR 1992 SC 604, the Apex Court has set out by way of illustration the
broad categories of cases in which the inherent powers under Section
482 of Cr.P .C. could be exercised. The illustrations relevant to decide
the case in hand are :
“102. (1) where the allegations made in the First
Information Report or the complaint, even if they are taken
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at their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case
against the accused.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”
8.In Geo Verghase v/s. State of Rajasthan and Anr., AIR 2021 SC
4764, the Apex Court has reiterated that :-
“ 34. … Undoubtedly, every High Court has inherent power
to act ex debito justitiae i.e., to do real and substantial
justice, or to prevent abuse of the process of the Court. The
powers being very wide in itself imposes a solemn duty on
the Courts, requiring great caution in its exercise. The Court
must be careful to see that its decision in exercise of this
power is based on sound principles. The inherent powers
vested in the Court should not be exercised to stifle a
legitimate prosecution. However, the inherent power or the
extra-ordinary power conferred upon the High Court,
entitles the said Court to quash a proceeding, if it comes to
the conclusion that allowing the proceeding to continue
would be an abuse of the process of the Court, or the ends
of justice require that the proceeding ought to be quashed.”
9.Having considered the nature of the accusations against the
Petitioners, this is a fit case to quash the FIR by exercising power under
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Article 226 of the Constitution and even under Section 482 of Code of
Criminal Procedure. Hence, the Petition is allowed. FIR No. 0009/2021
registered with Bhilawadi Police Station, Dist. Sangli and consequent
charge sheet being RCC Case No.86/2021 pending before the learned
Joint Civil Judge, Junior Division, Palus stands quashed, qua the
Petitioners.
10.Petition stands disposed of in above terms.
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|
Husband's relatives making negative comments about wife's cooking skills will not amount to cruelty under Section 498A of the Indian Penal Code (IPC), the Bombay High Court recently observed while quashing a first information report (FIR) by a woman against the relatives of a husband [Sandesh Madhukar Salunkhe & Anr v. State of Maharashtra & Anr].
The wife had alleged in her complaint that her husband's brothers used to taunt and insult her by saying that she does not know how to cook and that her parents did not teach her anything.
However, a division bench of Justices Anuja Prabhudessai and NR Borkar held that such comments did not constitute cruelty under Section 498A.
"In the instant case, the only allegation levelled against these Petitioners is that they had commented that Respondent No.2 does not know how to cook. Such comment does not constitute ‘cruelty’ within the meaning of the Explanation to Section 498-A of the Indian Penal Code," the Court held.
The woman's complaint stated that her marriage was solemnised on July 13, 2020. She claimed that she was driven out of her matrimonial home in November 2020 after which she lodged an FIR on January 9, 2021.
She claimed that her husband was unable to establish conjugal relationship with her since the date of her marriage.
The accused moved the Court for quashing the FIR.
The Court held that petty quarrels did not constitute cruelty within the meaning of Section 498A of IPC.
The Court opined that to prove an offence under Section 498A, it has to be established that the woman was subjected to cruelty continuously or persistently.
The Court found the present case fit for quashing and allowed the petition filed by the two relatives.
|
Petitioner :- Smt. Rashmi (Corpus)
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Hari Nath Chaubey
Counsel for Respondent :- G.A.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Gautam Chowdhary,J.
By way of this petition, the petitioner through his husband, has
sought a direction in the nature of Habeas Corpus directing
respondent No.4, Superintendent, Nari Niketan, Kanpur Dehat)
to produce the corpus namely Smt. Rashmi wife of Shivam
Yadav before this Court on date fixed by this Court on the date
fixed by this Court or released the corpus in favour of
petitioner.
Today, the corpus is brought before us from Nari Niketan,
Kanpur Dehat. She is major and wants to reside with her
legally wedded husband. Shivam Yadav, husband of the
petitioner, is also present before this Court and undertakes that
he will keep his wife with all goodness and it is at his behest
that this petition was filed. The mother of the husband also
accepts the girl.
In that view of the matter, Smt. Rashmi, petitioner herein, shall
be released immediately from Nari Niketan, Kanpur Dehat. We
make it clear that the police officials who have brought the girl
from Nari Niketan, Kanpur Dehat will immediately get her
released after lodging her back to the Nari Niketan, Kanpur
Dehat.
A copy of this order will be made available to the learned
A.G.A. who will transmit the same to the authority concerned
and the authority concerned would file compliance before this
Court on 4.7.2022. We request Hon'ble the Chief Justice to
constitute this Bench as we have heard this matter at length.
List on 4.7.2022 for filing the compliance.
|
The Allahabad High Court last week directed the release of a major woman from Nari Niketan (shelter for women in distress) after she told the Court she wished to reside with her legally wedded husband [Rashmi v. State of UP].
The direction was passed by a bench of Justices Kaushal Jayendra Thaker and Gautam Chowdhary in a Habeas Corpus petition filed by the wife, through her husband seeking a direction to the Superintendent, Nari Niketan to release her.
"In that view of the matter, Smt. Rashmi, petitioner herein, shall be released immediately from Nari Niketan, Kanpur Dehat," the Court ordered.
The bench directed the police officials who brought the petitioner to court to immediately release her.
The bench took note of the fact that the petitioner was a major who wished to reside with her husband. The husband also undertook to care for his wife, and his mother also accepted her.
"Husband of the petitioner, is also present before this Court and undertakes that he will keep his wife with all goodness and it is at his behest that this petition was filed. The mother of the husband also accepts the girl," the Court said.
The bench ordered a copy of the order to be made available to the additional government advocate for transmission of it to the concerned authority.
Further, the authority was directed to file compliance before the Court on July 4, 2022.
The petitioner was represented by advocate Hari Nath Chaubey.
|
+ W.P.(C) 3031/2020 & C.M. No. 15227/2021, C.M. No. 15228/2021
C.M. No. 15229/2021, C.M. No. 15358/2021, C.M. No. 15359/2021
C.M. No. 15360/2021, C.M. No. 15361/2021,C.M. No. 15362/2021
C.M. No. 1 5363/2021
versus
versus
versus
versus
versus
versus
versus
versus
versus
versus
versu s
versus
versus
versus
versus
+ W.P.(C) 5102/2021 and CM Nos. 15635/2021 & 15636/2021
versus
versus
versus
For the p etitioners
Mr.Sacchin Puri, Senior Advocate with Mr.Praveen K. Sharma and
Mr.Dhananjay Grover, Advocates for the petitioner in W.P.(C) No s.
Petiti oner in person in W.P.(C) No.3031/2020 .
Mr.Mahesh Agarwal , Mr.Rishi Agrawala, Mr.Karan Luthra, Mr.Ankit
Banati, Adv ocates in WP(C) No. 4970/2021.
Mr. Himanshu Dagar, Advocate for applicant in C.M. No. 15648/2021 in
Mr. Ajay Kohli, M s. Priyanka Ghorawat, Mr. Raghav Marwaha, Advocates
for Delhi Heart and Lung Institute.
Ms. Prabhsahay Kaur, Advocate for in W.P.(C) No. 4971/2021 .
Mr. Priyadarshi Manish and Mrs. Anjali J. Manish, Advocates in W.P.(C)
No.4984/2021.
Mr. Sidharth Dave, S enior Advocate with Ms. Varuna Bhandari , Ms. Bhakti
Vardhan, Mr. Tushar Thareja, Advocates in W.P.(C) No. 4985/2021 .
Mr. Alok Kr. Aggarwal, Ms.Anushruti , Ms. Supreet Bimbra and Ms. Simran
Arora, Advocate s in WP (C) No. 5001/2021 .
Mr, Sachin Datta & Mr. G. Tu shar Rao, Senior Advocates with Mr. Dinesh
Sharma, Ms. Ritika Jhurani, Ms. Jipsa Rawat, Advocates along with
Mr.D.K. Baluja, Medical Director, Jaipur Golden Hospital in W.P. C Nos.
Mr. Maninder Singh, S enior Advocate with Mr. Aar ush Bhatia, Advocate in
Mr. Satish Aggarwala & Mr. Gagan Vaswani, Advocates in W.P.C No.
Mr. Krishnan Venugopal, S enior Advocate with Mr. Manan Verma,
Mr.Aditya N Prasad, Mr. Kaushik Mishra & Ms. Anmol Srivastava,
Advocate s in W.P.C No. 5050/2021 .
Mr. M.K. Gahlaut, Advocate in W.P.C No. 5081/2021 .
Mr. Mohit Chaudhary & Mr. Kunal Sachdeva, Advocates in W.P.(C.)
No.5085/2021
Ms. Karuna Nundy , Mr. Sarthak Maggon & Ms. Upasana, Adv ocates in
Mr Sudhir Mis hra, Ms.Petal Chandhok, Ms Rupali Gupta and Mr. Raghav
Seth, Advocates in W.P.C No. 5073/2021 .
Mr. Siddharth Chechani, Advocate in W.P.C No. 5103/2021 .
Mr. Abhinav Vashisht, Sr. Adv. with Mr. Sacchin Puri, Sr. Adv., Mr. JS
Bakshi, Sr. Adv. with Mr. Praveen K. Sharma, Mr. Dhanjay Grover, Mr.
Kamil Khan and Ms. Akshita Sachdeva, Advs. in W.P.(C) No. 5142/ 2021.
For the respondents
Mr. Tushar Mehta, SGI, Mr. Chetan Sharma, ASG , Ms. Aishwarya Bhati,
ASG along with Ms. Monika Arora, Mr. Amit Mahajan, Mr. Anil Soni &
Mr. Anurag Ahluwalia, CGSC s, Mr. Jivesh Kr. Tiwari, Ms. Nidhi Parashar,
Mr. Kanu Aggarwal, Mr. Kritagya Kumar Kait, Mr.Shriram Tiwary, Mr.
Amit Gupta, Mr. Akshay Gadeock, Mr. Sahaj Garg & Mr. Vinay Yadav,
Advocates for UNION OF INDIA in all the matt ers.
Mr. Rahul Mehra, Senior Advocate along with Mr. Satyakam, Mr. Santosh
Tripathi , SC Mr. Gautam Narayan, Mr. Anuj Aggarwal & Mr. Anupam
Srivastava, ASC s with Mr. Aditya P. Khanna , Ms. Dacchita Sahni, Ms.
Ritika Vohra and Mr. Chaitanya Gosain, Advocates for GNCTD in all the
matters.
Mr. Rajshekhar Rao, Senior Advocate (Amicus Curiae) , Mr. Anandh
Venkataramani , Mr. Vinayak Mehrotra , Ms. Mansi Sood, Mr. Karthik
Sundar , Ms. Sonal Sarda , Mr. Areeb Y Amanullah , Advocates in all the
matters.
Mr. Anil Grover, S enior Additional Advoca te General for Haryana along
with Ms. Bansuri Swaraj, Additional Advocate General for Haryana and Mr.
Siddhesh Kotwal, Ms. Manya Hasija & Ms. Ana Upadhyay, Advocates.
Mr. Aseem Chaturvedi & Mr. Ajay Bhargav, Advocates for M/s INOX.
Mr. Divya Prakash Pande, Adv ocate for South Delhi Municipal Corporation.
Mr. Abhinav Tyagi, Advocate for M/s Seth Air Products.
Ms. Malvika Trivedi, S enior Advocate with Mr. Tanmay Yadav,
Ms.Abhisree Saujanya, Ms. Nihaarika Jauhari, Ms. Eysha Marysha,
Ms.Vidhi Jain, Advocates along with Ms. Kritika Gupta, applicant in person .
Ms. Garima Prashad, S enior Advocate with Mr. Abhinav Agrawal,
Advocate .
Mr. Ankur Mahindro & Ms Sanjoli Mehrotra, Advocates for intervener .
Mr. Om Prakash & Mr. Pradeep Kumar Tripath i, Advocates for the
applicant in C.M. No. 15651/2021.
Mr. Rohit Priya Ranjan, Advocate for M/s Goyal Gases.
Mr. Abhishek Nanda, Advocate for IRDAI.
Mr.Anupam S Sharma, SPP -CBI with Mr.Prakarsh Airan, Ms.Harpreet
Kalsi, Advs in W.P(Crl) 953/2021.
Mr. Tushar Mehta, SG with Mr. Chetan Sharma, ASG, Mr. Satya Ranjan
Swain, CGSC and Mr. Kautilya Birat, Mr. Vedansh Anand, Advocates in
1. Mr.Rajshekhar Rao, learned Amicus Curiae has pointed out that
though the Central Government has , vide its letter dated 30.04.2021 , revised
the allocation of oxygen to GNCTD to 590MT, the allocation orders issued
by the Central Government do not take into a ccount the capacity of the
supplier to supply oxygen. He has contended that India Glycols was initially
required to supply 30MT to GNCTD and 40MT to the State of Uttarakhand,
but has often expressed its inability to make this complete supply of 30MT
to GNCTD on the ground that it does not have the capacity to produce
70MT on daily basis. He has submitted that Air Liquide , which as per the
latest allocation , has to supply a total of 190MT of oxygen to GNCTD , has
also expressed its inability to do so and h as claimed that it can only supply a
maximum of 165MT of oxygen to GNCTD.
2. Learned Amicus pointed out that certain States , which were allocated
higher amount of oxygen , are reportedly witnessing a dip in their oxygen
demand and not lifting their total all ocated supply and therefore, the Central
Government should reconsider the issue of allocation of oxygen to States,
allocation of oxygen by each supplier , and rationalized allocation of oxygen
tankers - including diversion of tankers from other States / territories to
States/ territories like NCTD , by factoring into account the real -time
requirement of oxygen in various states on a regular basis.
3. Mr.Rahul Mehra, learned Senior Counsel for the GNCTD submits
that even though , as per the own stand of the Central Government , 1224
cryogenic tankers , which have a capacity to carry 16732MT / day are
available , which is far in excess of the amount of oxygen of 8606MT / day
allocated to all the States ; it appears that there are sufficient tankers
available for the timely supply of oxygen t o the States and , therefore, it is
only a rational distribution of tankers which is needed in order to rectify the
shortage in Delhi. He, therefore, prays that the Central Government be
directed that to take , over all the tankers in the country as a nation al
resource , in the same way as it is done in the case of oxygen. Thereafter, the
Tankers could be rationally deployed to meet the needs of all the States and
Union Territories. The learned ASG , Mr.Chetan Sharma vehemently refute s
this submission and cont ends that the effective capacity of a tanker cannot
be calculated at 100% , as one has to necessarily take into account the
turnaround time as also other exigencies.
4. Mr.Mehra has further submitted that keeping in view the fact that a
substantial part o f the oxygen allocated to GNCTD ha s been earmarked from
suppliers who are situated at a distance of 1200 to 1500 kms from Delhi,
which supply necessarily , is time -consuming , thereby resulting in delay in
the allocated oxygen being made available for the ci tizens of the NCTD .
Therefore , the GNCTD has made suggestions to the Central Government to
explore other routes as suggested by the GNCTD, which according to him
will enable the GNCTD to receive the oxygen from the sources in a more
organized and timel y manner.
5. In view of the aforesaid stand taken by the GNCTD, we direct the
Central Government to expeditiously examine th e aforesaid aspects and
inform this Court on all the aspects noted hereinabove. The Empowered
Group looking into the aspect of mappi ng and allocation of LMO in the
country should iron out all creases and make necessary amends wherever
required, since errors/ slippages of the kind taken note of in the opening
paragraph of this Order are bound to result in the supply of Oxygen to the
States/ Union Territories being adversely affected.
6. The learned Amicus submits that he held a detailed discussion
yesterday night with the suppliers to understand the complete situation. He
submi ts that, realistically speaking with the present infrastructure , the
suppliers can supply, at the highest, 480 to 520 MT per day of LMO, and not
beyond that. He submits that to meet event the present demands of Oxygen
in the NCT of Delhi, it is essential for the Central Government, in
collaboration with the GNCTD, to prepare a buffer stock of Oxygen t o be
used for emergency use, and to ensure supply lines continue to function even
in unforeseen circumstances. This has been so directed by the Supreme
Court in its order dated 30.04.2021. However, no steps have been taken by
the Central Government in co llaboration with the GNCTD in this regard.
He submits that looking to the continuous shortages of medical Oxygen
being faced in Delhi, the Central Government may be directed to create a
buffer stock of, at least, 100 MT in the NCT of Delhi with the collaborat ion
of GNCTD. We find merit in this submission of Mr. Rajshekhar Rao. As
noticed hereinabove, the Supreme Court has already issued directions to the
Central Government, and the GNCTD to act in this regard. Paragraph 3 0 of
the order dated 30.04.2021 rea ds as follows:
“30 With regard to the issue of the supply and availability of medical
oxygen for the entire country, we have noted that efforts are being made to
augment the availability of oxygen. While the Central and State
Governments are in the process of managing the supply of oxygen, at the
same time, it is critical that a buffer emergency stock of oxygen is created
so that in the event that the supply chain is disrupted to any one or more
hospitals in an area for any reason, the buffer or emergency s tocks can be
used to avoid loss of human lives. These emergency stocks must be so
distributed so as to be easily accessible without delay in every local area.
We have also seen the situation that has developed in the last 24 hours in
Delhi where patients, including among them medical professionals, died
because of the disruption of supplies and the time lag in the arrival of
tankers. This deficit shall be rectified immediately by the Central
Government by creating buffer stocks and collaborating with the St ates
through the virtual control room on a 24 by 7 basis. In view of the deaths
which are being caused daily by the disruption of supplies, this direction is
more crucial than ever. We therefore, direct the Central Government in
collaboration with the Stat es to prepare a buffer stock of oxygen to be
used for emergency purposes to ensure supply lines continue to function
even in unforeseen circumstances. The location of the emergency stocks
shall be decentralised so as to be immediately available if the norm al
supply chain is disrupted to any hospital for any reason. The emergency
stocks shall be created within the next four days. The replenishment of the
emergency stocks will also be monitored on a real time basis through the
virtual control room in active c onsultation with each state/UT. This is in
addition to the day to day allocations.”
7. We, therefore, direct the Central Government to, in collaboration with
the GNCTD set up a buffer stock of 100 MT of LMO in the NCT of Delhi,
or, for supply to the NCT of D elhi in neighboring areas. Steps in this regard
for creation of a buffer stock of 100 MT of LMO be taken in the next 3 days.
8. The learned Amicus submits that the public at large are desperate to
secure Oxygen cylinders for their near and dear ones, and at the locations of
the re -fillers there are long queues, and the possibility of a law and order
situation arising is imminent. He submits that Liquid Oxygen, by itself, is
explosive and any accident at the site of the re -filler plant can lead to loss of
lives. He submits that it is essential to deploy a dedicated force for the
purpose of crowd management at the re -filling depo ts. Even though Delhi
Police is handling the situation, he submits that one of the Central Para
Military Forces, if deployed, would be able to handle the situation better.
We direct the Central Government to examine this aspect. We may note that
Central Industrial Security Forces (CISF) is adept in crowd management
and, therefore, deployment of CISF at the re -filling stations of the re -fillers
may be desirable. Let the Central Government respond in this regard within
2 days. This aspect shall be considered on 07.05.2021.
9. Mr. Rao has further submitted that it is essential that the good sense of
the people may be appealed by political leaders hip, so as not to hoard
medicines or gas cylinders. He submits that an artificial scarcity of gas
cylinders and medicines is being created, since the people feel insecure, and
to meet any unforeseen situation, are collecting and keeping within their
homes Oxygen cylinders. We have considered this submission and find
merit in the same. The political leadership may consider issuing appeals to
the people in this regard. We are conscious that such appeals may drive
some people to give up some of the cylinde rs, medicines and other
equipments that they may have collected, and kept to meet any unforeseen
eventuality.
10. Keeping in view the same, we are of the view that the GNCTD should
seriously examine the feasibility of creating Oxygen cylinder banks, and
even medicines banks, where the persons who surrender cylinders/
medicines get an assurance that, in case, they need the same at a later day,
they would be definitely provided with the same. We may note that such an
assurance is even given by the Blood Banks , who receive blood donations.
Let the feasibility and modalities of setting up of such cylinder/ medicines
banks at different locations in the NCT of Delhi be examined and the plan
be placed before the Court in 2 days. This aspect shall be considered by us
on 07.05.2021.
11. Our attention has also been drawn to the fact that the general public is
still not fully aware of the protocols to be followed upon being infected with
COVID -19, as also the manner in which oxygen concentrator s and cylinders
are required to be used. We are of the view that it would be appropriate to
direct the ICMR , as also the Ministry of Health and Family Welfare , to look
into expanding their reach and finding ways to disseminate information
through WhatsApp and other print and audio -visual media s uch as T.V.
Channels, and over the internet , regarding the aspects of (i)the COVID -19
protocol evolve d by it; (ii)the proper use of oxygen concentrators as well as
cylinders ; (iii)the right time to seek medical attention , and; (iv)information
about the conc erning symptoms that must be paid due attent ion to. These
are only illustrative and educational/ guidance materials may be prepared to
cover all necessary aspec ts.
12. Mr.Chetan Sharma , the learned ASG, has also pointed out that there
are about 750 clinics - including Mohalla Clinics run by the GNCTD and
there is no reason as to why the GNCTD is not utilizing these clin ics for
dealing with this surge in COVID -19 cases , at least for the purpose of
disseminating information to the general public and doing the preliminary
investigation. Mr.Mehra assures the Court that the said aspect will be
expeditiously considered by the GN CTD and a status report will be filed in
this regard within two days. Let the ICMR suggest the manner in which the
Mohalla Clinics could be put to use for COVID management.
13. Since a grievance has been raised by some of the suppliers that some
of the hospit als/nursing homes , despite receiving the allocated oxygen from
its dealers , are still approaching them for the supply of oxygen in terms of
the allocation order - we make it clear that the allocation to the
hospitals/nursing homes would be strictly in term s of the allocation order
and, therefore, in case the allocated quantity is received from the dealers , no
further demand can be raised on the suppliers.
14. Mr. Chetan Sharma, the learned ASG has stated, on instructions, that
12 new cryogenic tankers have been physically deployed for transportation
of LMO to Delhi. Mr. Mehra submits that the registration numbers of the
Tankers allocated for the NCT of Delhi with their GPS trackers should be
shared with the GNCTD and those tankers should not be used to make
supplies to other states, as it causes confusion and delays deliveries. We feel
this is a fair and reasonable request that should be hon oured by the Central
Government for better management of supplies.
15. There are a large number of small nursing homes who are treating
COVID -19 patients, but are not registered for that purpose with the
GNCTD. For instance, today, the doctor from Munni Maya Ram Jain
Hospital, AD Block, Pitampura has joined the proceedings. In the Oxygen
allocation orders, their names and requirements are not reflected. They are
raising their grievances with regard to no supply of Oxygen cylinders being
made to them. All such Nursing Homes may approach the GNCTD and
declare the number and kind of COVID beds/ patients with them, so that
they could be brought in to the system of supply of Oxyg en cylinders.
16. We are informed that the payment gateway on the website of the
GNCTD for receipt of donations is not working. The GNCTD should set it
right and report compliance by 06.05.2021.
17. Another aspect placed before us by the learned Amicus is with regard
to the GNCTD creating a plasma bank and providing information about the
same to the public. The GNCTD shall examine the issue and report on
07.05.2021.
18. During the course of the hearing, it has been bro ught to our notice that
the GNCTD is still not receiving 700 MT of liquid medical oxygen per day ;
even though, the Supreme Court while passing its detailed order dated
30.04.2021 , had directed compliance by the Union of India , by the midnight
of 03.05.2021. Paragrap hs 27 to 29 of the order dated 30.04.2021 passed by
the Supreme Court in Suo Motu W .P.(C) No.3 of 2021 are relevant and are
reproduced as under: -
“27. Submissions have also been made on the issue of supply
of oxygen by Mr. Rahul Mehra, learned Sen ior Counsel
appearing for the Government of National Capital Territory of
Delhi18. Mr Rahul Mehra submits that the GNCTD is facing
an acute shortage of the supply of oxygen as it had been
allocated a substantially lower quantity of oxygen as against
its pr ojected demand. Mr Mehra pointed out that initially as
on 15 April 2021, the projected demand of GNCTD for 20
April 2021 was 300 MT/day, for 25 April 2021 it was 349
MT/day, and for 30 April 2021 it was 445 MT/day. However,
due to a surge in cases, the pro jected demand was revised by
GNCTD on 18 April 2021 to 700MT/day and this was
immediately communicated to the Central Government.
Despite the increase in projected demand, the supply of
oxygen to GNCTD has continued in terms of the allocation
order dated 2 5 April 2021, in which 490 MT/day were
allocated. As against this as well, the manufacturers have only
been able to supply 445 MT/day. Mr Mehra has clarified that
as on the date of the hearing their demand was 700MT/day,
however their projected demand for the coming days is stated
to be 976 MT/day as the GNCTD has planned an increase in
medical infrastructure, including beds with oxygen cylinders
and beds for patients in intensive care unit.
28. Opposing his submission, the Solicitor General and Ms
Dawra st ated that no revised projections have been received
from GNCTD till date. The Solicitor General has also sought
to highlight that the government of GNCTD has failed to
offtake the allocated quantity of oxygen from the supply point.
29. Having heard the su bmissions of both counsels on the
issues pertaining to supply of oxygen to GNCTD, we note that
the Central Government (on page 63) in its affidavit dated 23
April 2021 has admitted that the projected demand for
GNCTD as of 20 April 2021 had increased by 13 3% from 300
MT/day to 700 MT/day. According to the figures of allocation
given in the affidavit dated 23 April 2021 and the presentation
given by Ms Dawra, the existing allocation of GNCTD
remains at 490 MT/day. This situation must be remedied
forthwith. T he situation on the ground in Delhi is heart
rending. Recriminations between the Central Government
(which contends that GNCTD has not lifted its allocated
quantity) and GNCTD (which contends that despite its
projected demand the quantity allocated has not been
enhanced) can furnish no solace to citizens whose lives depend
on a thin thread of oxygen being available. On the intervention
of the Court during the hearing, the Solicitor General states
that he ha s instructions to the effect that GNCTD‟s demand of
medical oxygen will be met and that the national capital will
not suffer due to lack of oxygen. We issue a peremptory
direction in those terms. In the battle of shifting responsibility
of supplying/offtak ing of oxygen, lives of citizens cannot be put
in jeopardy. The protection of the lives of citizens is
paramount in times of a national crisis and the responsibility
falls on both the Central Government and the GNCTD to
cooperate with each other to ensure that all possible measures
are taken to resolve the situation. Learned Senior Counsel for
GNCTD has assured the court after taking instructions at the
“highest‟ level that the issue will be resolved completely in a
spirit of co -operation. During the course of the hearing, the
Solicitor General has assured that henceforth he will ensure
that the deficit of oxygen is rectified and supply is made to the
GNCT D according to their projected demand (which may be
revised in the future) on a day by day basis. We accept his
submission and direct compliance within 2 days from the date
of the hearing, that is, on or before midnight of 3 May 2021.”
19. Mr. Sharma submits that a compliance affidavit is being filed in the
Supreme Court tomorrow. We fail to understand what a compliance affidavit
would do when, as a matter of fact, 700 MT of liquid medical oxygen is not
being delivered to Delhi on a daily basis. In fact, even t he earlier allocated
quantity of 490 MT, which has been revised to 590 MT per day , has not been
delivered for a single day.
20. At this stage, Mr. Sharma submits that the Supreme Court has not
directed the supply of 700 MT of liquid medical oxygen. We disagree with
this submission of Mr. Sharma and a plain reading of the aforesaid extract of
the order passed by the Supreme Court shows that the Supreme Court has
directed the Union of India to supply 700 MT of liquid medical oxygen to
Delhi on a daily basis by maki ng good the deficit .
21. A perusal of Paragraph 27 of the order passed by the Supreme Court
shows that the Supreme Court has recorded the submission of Mr.Mehra ,
who appeared for GNCTD , that as against their demand of 700 MT liquid
medical oxygen per day, the producers had only been able to supply 445 MT
per day.
22. The Supreme Court also take s note of the projected demand for the
coming days , which is 976 MT per da y, once there is an increase in the
medical infrastructure. Paragraph 29 of the order passed by the Su preme
Court takes note of the fact that the GNCTD had increased their demand on
20.04.2021 by 133% from 300 MT per day to 700 MT per day. The Supreme
Court also took note of the allocation in favour of NCT of Delhi , which was
490MT per day , (in terms of the affidavit dated 23.04.2021 and the
presentation given by Ms.Dawra ). The Supreme Court goes on to state that
“this situation must be remedied forthwith .”
23. In our view, this itself is sufficient to show that the Supreme Court
directed that Delhi should be allocated and provided with 700 MT liquid
medical oxygen per day. If there was any doubt, the same is clear from the
further reading of the order in the same paragraph. The Supreme Court takes
note of the heart -wrenching situation on the ground in Delhi. Unfortunately,
from the submission of Mr. Sharma and Ms. Bhati , it appears that this is
something not present to the mind of the Central Government.
24. In the same paragraph, the Supreme Court takes note of the assurance
given by the learned Solicitor Gen eral, on instructions , to the effect that
GNCTD’s demand of liquid medical oxygen – which is 700 MT/ day will be
met and the national capital will not suffer due to the lack of liquid medical
oxygen. This assurance given before the Supreme Court has certa inly not
been fulfilled . We have been seeing for ourselves , day after day , how large
and small hospitals, nursing homes and even individuals are running to us
with SOS calls for supply of medical oxygen. The Supreme Court goes on
to state “we issue a pere mptory direction in those terms.”
25. As if this was not enough, the Supreme Court further records in the
same paragraph “during the course of the hearing, the Solicitor General has
assured that hencefort h, he will ensure that the deficit of oxygen is rectifie d
and supply is made to the GNCTD according to their projected demand
(which may be revised in the future) on a day by day basis. We accept his
submission and direct compliance within 2 days from the date of the
hearing, that is, on or before midnight of 3 May 2021.”
26. We reject the submission of Mr.Sharma and Ms.Bhati that the
GNCTD is not entitled to receive 700 MT of liquid medical oxygen in the
light of the existing medical infrastructure. It pains us that the aspect of
supply of liquid medical oxygen f or treatment of covid patients in Delhi
should be viewed in the way it has been done by the Central Government.
27. We are facing the grim reality every day of people not being able to
secure oxygen beds or ICU beds. The situation has come to this that
hosp itals and nursing homes have had to reduce the number of beds offered
by them because they are not able to service their existing capacities , due to
shortage of medical oxygen. On the one hand, there is a need to augment
the capacities to meet with the ri sing numbers of COVID -19 positive cases ;
while on the other hand, the existing infrastructure is crumbling and the bed
capacity, even though available, cannot be put to its full use.
28. We, therefore, direct the Central Government to show cause as to why
contempt action should not be initiated for not only non -compliance of our
short order dated 01.05.2021 , but also of the order passed by the Supreme
Court dated 30.04.2021. To answer the said notice, we direct the presence
of Mr. Piyush Goyal and Ms. Sumita Dawra before us tomorrow.
29. List on 05.05.2021.
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The Delhi High Court today directed the Central government to show cause as to why contempt of court should not be initiated for non-compliance of orders passed with respect to the supply of oxygen to the national capital. (Rakesh Malhotra vs GNCTD)
A Bench of Justices Vipin Sanghi and Rekha Palli ordered,
"We direct Central government to show cause why contempt action should not be taken for non-compliance of our order of May 1 and Supreme Court order.."
The Court has accordingly directed the the presence of Central government officers, Piyush Goyal and Sumita Dawra, on the next date of hearing.
The Court recorded that it was matter of fact that till date, oxygen had not been supplied to the national capital either in terms of the Supreme Court order on 700 MT supply or its order on 490 MT supply.
As the Additional Solicitor General Chetan Sharma argued that the Supreme Court had not directed the Central government to supply 700 MT to Delhi, the Court opined,
"We disagree. A plain reading of the Supreme Court order shows that the Supreme Court has directed the Centre to supply by making good the deficit.."
The Court further rejected Centre's stand that Delhi's demand of 700 MT could not be accepted as it noted,
"We reject the submission that GNCTD is not entitled to receive 700 MT per day in light of existing infrastructure. It pains us that the aspect of supply of oxygen should be viewed in the way is done by the central government.."
It added,
"We see the grim reality everyday.. the situation has come to this that hospitals have had to reduce the number of beds..On one hand, there is need to augment capacities to meet the rising numbers, while on the other, the existing infrastructure is crumbling and available bed can't be put to use.."
The Court also opined that the assurance given by the Solicitor General Tushar Mehta to the Supreme Court that the demands of Delhi would be taken care of has not been fulfilled.
"..(the) assurance has not been fulfilled as small and large nursing homes and individuals are running to us..(with SoS calls)"
The order was passed after Senior Advocate Rahul Mehra for Delhi government once again reiterated that in spite of judicial orders, Delhi was not receiving oxygen as per demand.
ASG Sharma stated that the supply was "very substantial" and that the Central government will file a "compliance affidavit" before the Supreme Court.
Clarifying that even the High Court was entitled to assess the aspect of supply of oxygen to Delhi, the Court thundered,
"Contempt may be the last thing but it is there. Enough is enough. We are not going to take no for an answer.. There is no way that you won't supply 700 right away."
Even as Advocate Aishwarya Bhati took the Court through the Supreme Court order and the demands made by Delhi government from time to time, the Court remarked,
""Because they made a demand of 300, people should suffer? Central govt is doing to quibble about these little things and let people die?..You don't know (about the situation in Delhi)? You may put your head like an ostrich in the sand...we will not.."
On May 1, the Court had directed the Centre to ensure that the national capital receives its allocated share of 490MT of oxygen.
The Court also noted that Delhi has no cryogenic tankers that could enable the supply of oxygen. Thus, fixing responsibility on the Central government, the Court said,
"It falls on the Central government to arrange tankers ..(else) it only remains a paper allocation. The allocation to Delhi has been in force from April 20 and not for a single day Delhi has received allocated supply."
Read the order:
Read the full account of today's hearing here:
Delhi High Court begins hearing pleas concerning COVID-19 situation in the national capital. Hearing before Justices Vipin Sanghi and Rekha Palli. #CovidIndia #COVID19 #Oxygen@CMODelhi pic.twitter.com/qvMooc5NTN
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CRL.P No. 1698 of 2023
CRL.P No. 1698 of 2023
This petition is filed under Section 439 of Cr.P.C. , by
accused No.1, praying to enlarge her on bail in Cri me
No.134/2022 of Yeshwanthapura Police Station.
2. Heard the learned counsel for petitioner and the
learned High Court Government Pleader for responden t-
State and perused the material on record.
3. Charge sheet is filed against accused Nos.1 and
2 for offence punishable under Section 120(B), 118, 302
read with 34 of IPC.
4. Case of the prosecution in brief is that,
petitioner/accused No.1 is the wife of deceased-
R.Shankarareddy. There was an illicit relationship
between petitioner and accused No.2. The deceased was
working in Bengaluru. Petitioner was staying in An dhra
Pradesh along with her two minor children. Since t he
deceased decided to bring his wife and children to
Bengaluru for the purpose of children's education,
CRL.P No. 1698 of 2023
petitioner and accused No.2 conspired with each oth er to
commit his murder, so that they could continue thei r illicit
relationship. On 24.02.2022 petitioner along with her
children came to Bengaluru and stayed with her husb and
in a rented house situated at Mohan Kumar Nagar, 1s t 'C'
Cross, Yeshwanthpura. As per the conspiracy hatche d and
at the instigation of accused No.2, at about 11.30 pm,
when the deceased was sleeping in the house, petiti oner
herein stabbed him with a knife on his neck and
committed his murder. Then with the same knife, sh e
caused injuries to her hand and removed her Mangaly a
chain, ear stud etc., and concealed it, to make it appear as
if it is a case of robbery and murder.
5. On the basis of the complaint lodged by the
land owner of the house, initially case was registe red
against unknown persons for the offence punishable under
Section 302 of IPC. In the course of investigation ,
petitioner/accused No.1 and accused No.2 were arres ted
and their voluntary statement was recorded.
CRL.P No. 1698 of 2023
6. It is contended by the learned counsel for
petitioner that the entire allegations are false. H e has
contended that the petitioner has also sustained in juries in
the incident and therefore, she is innocent and som e other
accused might have committed the offence. He has
contended that the petitioner is a woman and she is
languishing in judicial custody since 24.09.2022 an d
accused No.2 is already enlarged on bail and theref ore,
seeks to allow the petition and to grant bail to th e
petitioner.
7. The learned High Court Government Pleader on
the other hand has opposed the prayer seeking bail and
sought to reject the petition contending that there are
sufficient material collected against the petitione r herein
proving her role in the crime. He has contended th at the
prime witness is the son of petitioner and therefor e, in the
event of grant of bail to the petitioner, she may t utor him
and thereby hamper the case of prosecution.
CRL.P No. 1698 of 2023
8. The deceased was found murdered in the house
where he was residing with this petitioner and two minor
children. It is contended by the learned counsel f or
petitioner that even the petitioner has sustained i njuries,
and therefore, she is innocent. According to the
prosecution, there was an illicit relationship betw een the
petitioner and accused No.2. Since the deceased wa s an
obstacle to the said relationship, both the accused
conspired with each other to commit his murder and when
he was sleeping, petitioner herein stabbed him and
committed his murder and then caused injuries to he rself
with the same knife to mislead the investigation.
9. The prosecution has recorded the statements of
C.Ws.10, 11 and 13 who speaks about the illicit
relationship and motive for the offence. Further M angalya
chain and ear stud belonging to the petitioner whic h was
concealed by her, have been recovered. Her blood s tained
nightie is also recovered. More importantly, the s tatement
of C.W.2, namely the minor son of the petitioner an d the
CRL.P No. 1698 of 2023
deceased, would reveal that there was a quarrel bet ween
the deceased and this petitioner in the night and w hen he
woke up, he saw his father lying dead with stab inj uries.
At this stage, there is a prima facie case against the
petitioner. The offence alleged is grave in nature . Merely
because the petitioner is a woman is not a ground t o
enlarge her on bail. Insofar as accused No.2 is co ncerned,
who has been granted bail by this Court in
Crl.P.No.7503/2022, the allegations are that he con spired
with the petitioner. Hence, grant of bail to the s aid
accused will not enure to the benefit of the petiti oner.
Considering the nature and gravity of the offence, this is
not a fit case to enlarge the petitioner on bail. H ence,
petition is dismissed .
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The Karnataka High Court recently refused to grant bail to a woman alleged to have stabbed her husband to death, while remarking that it cannot release the petitioner on bail merely because she is a woman. [Dilli Rani v. State]
The Court was hearing a bail plea filed by a woman booked for murder, criminal conspiracy and other offences under the Indian Penal Code (IPC).
Justice Mohammad Nawaz refused to grant bail in view of the grave nature of the alleged offence.
Responding to the petitioner counsel's request for bail since the accused was a woman who has been languishing in jail since last September, the Court said that it cannot order her release only on such a ground.
"At this stage, there is a prima facie case against the petitioner. The offence alleged is grave in nature. Merely because the petitioner is a woman is not a ground to enlarge her on bail," the Court said.
The Court added that the grant of bail to a co-accused, who was alleged to have conspired to commit the murder, would also not help the petitioner's case. Therefore, it rejected the bail plea.
According to the prosecution, the woman and her lover (co-accused) had allegedly conspired to murder her husband with the intention of continuing their illicit relationship.
The accused woman was alleged to have stabbed her husband while he was sleeping at home. Further, she was accused of injuring herself with the same knife to make it look like a robbery.
After a complaint was filed by the landowners, a case was initially registered against unknown individuals. However, after conducting an investigation, the woman and her lover were eventually arrested.
While rejecting the bail plea, the Court also took into consideration the statement made by the accused woman's son that there was a quarrel between his parents on the night before his father's death. In the morning, the son stated, his father was found dead with stab injuries.
The petitioner was represented by Advocate Sri Gopal, while the respondent was represented by High Court Government Pleader RD Renukaradhya.
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Writ Petition(s)(Civil) No(s). 1011/2022
Date : 25-11-2022 This petition was called on for hearing today.
For Petitioner(s) Mr. Mukul Rohatgi, Sr. Adv.
Mr. Saurabh Kirpal, Sr. Adv.
Ms. Tahira Karanjawala, Adv.
Ms. Niharika Karanjawala, Adv.
Mr. Vardaan Wanchoo, Adv.
Mr. Shreyas Maheshwari, Adv.
Mr. Ritwik Mohapatra, Adv.
ForM/S. Karanjawala & Co., AOR
Mr. Neeraj Kishan Kaul, Sr. Adv.
Dr. Menaka Guruswamy, Sr. Adv.
Ms. Arundhati Katju, Adv.
Ms. Priya Puri, AOR
Mr. Govind Manoharan, Adv.
Mr. Dhruv Sharma, Adv.
Mr. Toshiv Goyal, Adv.
Mr. Raghav Agrawal, Adv.
Mr. Yash S. Vijay, Adv.
Mr. Utkarsh Pratap, Adv.
Ms. Shristi Borthakur, Adv.
Ms. Ritika Meena, Adv.
Mr. Ranjay Dubey, Adv.
Mr. Rishabh Sharma, Adv.
For Respondent(s)
UPON hearing the counsel the Court made the following
1A Writ Petition invoking Article 226 of the Constitution1 has been filed before the
High Court of Kerala on the same subject. On 21 November 2022, the following
order was passed by the Single Judge of the High Court :-
“Writ Petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct Respondents Nos. 2-6 and all authorities
thereunder or their agents acting under them, directing them to
accept and process the Notice to be given by the Petitioners under
Section 5 of the Special Marriate Act, 1954, pending final disposal
of this writ petition.
This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the
Advocates for the petitioners, DEPUTY SOLICITOR GENERAL for R1
and of STATE ATTORNEY for R2 to R6, the court passed the
following:
Learned Deputy Solicitor General submits that similar
matters are pending before the High Court of Delhi and the
Ministry is taking steps to get all the writ petitions, including
the instant case, transferred to the Hon’ble Supreme Court.”
3The above order indicates that the Union Government made a statement before
the High Court through the Deputy Solicitor General that the Ministry was taking
steps to get all the writ petitions, including the writ petition before the High Court
of Delhi, transferred to this court.
4We have heard Mr Mukul rohatgi, Mr Neeraj Kishan Kaul and Dr Menaka
1 Writ Petition (Civil) No. 2186 of 2020
Guruswami, senior counsel together with Mr Saurabh Kumar and Ms. Arundhati
Katju, counsel appearing on behalf of the petitioners.
5A list of petitions pending before various courts on the same subject has been
tendered during the course of the hearing and is extracted below:-
1.Nikesh PP & Anr.
vs. UOI & Anr.W.P.(C) 2186/2020 Special
Marriage Act
2.Abhijit Iyer Mitra &
Ors. v. UOI & Anr.W.P.(C) 6371/2020 Hindu Marriage
Act
3.Vaibhav Jain & Anr.
v. UOI & Anr.W.P.(C) 7657/2020 Foreign
Marriage Act
4.Dr. Kavita Arora &
Anr. v. UOI & Anr.W.P.(C) 7692/2020 Special
Marriage Act
5.Udit Sood & Ors. &
Anr. v. UOI & Anr.W.P.(C) 2574/2021 Special
Marriage Act
6.Joydeep Sengupta &
Ors. v. Ministry of
Home Affairs & Ors. W.P.(C) 6150/2021 Foreign
Marriage Act,
Special
Marriage Act
and Citizenship
Act
7.Nibedita Dutta &
Anr. v. UOI & Anr.W.P.(C) 13528/2021 Hindu Marriage
Act
8.Zainab Patel v. UOI
& Anr.W.P.(C) 13535/2021 All Matrimonial
Laws
9.Mellissa Ferrier &
6Issue notice returnable on 6 January 2023.
7Liberty to serve the Central Agency.
8Notice shall also be issued to the Attorney General for India, in addition.
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The Supreme Court on Friday issued notice to the Central government and the Attorney General for India R Venkataramani on two petitions filed by gay couples seeking recognition of same sex marriage under the Special Marriage Act [Supriyo @ Supriya Chakraborty v. Union of India].
A bench comprising Chief Justice of India (CJI) DY Chandrachud and Justice Hima Kohli heard the matter before seeking the response of the Central government and its top law officer.
"Issue notice returnable in 4 weeks. Liberty to serve the central agency. Notice shall be issue to Attorney General," the Court directed.
The Court was hearing two petitions filed by gay couples seeking recognition of same sex marriage under the Special Marriage Act.
The lead petition by Supriyo Chakraborty and Abhay Dang, two gay men living in Hyderabad, said that the right to marry a person of one’s choice should extend to LGBTQ+ citizens, as well.
Supriyo and Abhay have been a couple for almost 10 years. They both got COVID during the second wave of the pandemic and when they recovered, they decided to have a wedding-cum-commitment ceremony on their 9th anniversary to celebrate their relationship. They had a commitment ceremony in December 2021 attended by their parents, family and friends.
However, despite the same, they do not enjoy the rights of a married couple, the plea pointed out.
It was also contended that the Supreme Court in Puttaswamy case, held that LGBTQ+ persons enjoy the right to equality, dignity and privacy guaranteed by the Constitution on the same footing as all other citizens.
The second petition filed by gay couple Parth Phiroze Mehrotra and Uday Raj said that non-recognition of same-sex marriages is violative of right to quality under Article 14 and right to life under Article 21 of the Constitution.
Senior Advocates Neeraj Kishan Kaul and Menaka Guruswamy and advocates Arundhati Katju, Priya Puri and Shristi Borthakur appeared in the lead petition.
Senior Counsel Mukul Rohatgi and Saurabh Kirpal appeared in the second petition briefed by Karanjawala & Co.
Read more about the two petitions here.
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Khalil Abbas Fakir ….. Applicant
Tabbasum Khalil Fakir @
Tabbasum Gulam Husain Ghare & Anr. ….. Respondents
Ms.Shaheen Kapadia a/w. Ms.Mahenoor Khan, Mr.Irfan Unwala i/b.
Ms.Vrushali Maindad for the Applicant.
Mr.Saurabh Butala a/w. Adv. P.V . Shekhawat, Ms.Shagufa Patel,
Ms.Swati Khot, Ms.Nitita Mandaniyan for the Respondents.
Ms.S.S.Kaushik, APP for the State.
By consent of parties, the matter is taken up for final
disposal at the admission stage.
2. This criminal revision application has been filed by the
applicant (husband) challenging the concurrent findings recorded by
the JMFC, Chiplun and Sessions Court, Khed, Ratnagiri.
3. The applicant (husband) and the respondent no.1 (wife)VASANT
IDHOLDigitally signed
Date:
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got married on 9 February, 2005. At the time of the marriage, it was
applicant’s second marriage, whereas it was respondent no.1(wife’s )
first marriage.
4. From the said wedlock, a daughter Mehvish was born on 1
December, 2005 at Chiplun, Ratnagiri.
5. Shortly, after the daughter was born, the husband for the
purpose of better earning, went to Saudi Arabia, while the wife and the
daughter stayed back at Chiplun (Ratnagiri) and were staying with
parents of husband.
6. It is the case of the husband that thereafter the wife along
with the daughter in June 2007, left her matrimonial house and starte d
residing with her parents in Chiplun, Ratnagiri.
7. The wife subsequently filed a criminal Misc. Application
No. 81 of 2007, claiming the maintenance for her under the provisions
of Section 125 of the Code of Criminal Procedure, 1973. After the said
proceedings were served upon the husband, shortly thereafter he gave
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divorce (Talaq) on 5 April, 2008 by registered post to the wife , during
the pendency of the maintenance application filed by the wife under
section 125 of the Cr.P.C.
8. On 30 June, 2009, the JMFC, Chiplun dismissed the
application of maintenance filed by the wife. In the year 2012, the wife
filed a Criminal Misc. Application No. 143 of 2012, seeking
maintenance for the daughter Mehvish, under the provisions of section
125 of the Cr.P.C. So also, the wife filed an application under section
3(1) (a) of the Muslim Women (Protection of Rights on Divorce ) Act
1986, (for short ‘MWPA’) thereby claiming reasonable and fair
provision and maintenance to be paid to her, being the Criminal Mi sc.
Application No. 144 of 2012.
9. On 20 August, 2014, an order of maintenance was passed
in the maintenance application filed for daughter Mehvish, thereby
directing the husband to pay a sum of Rs.3,000/- to the daughter. The
parties have admitted that the said order has been complied wi th as of
today.
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10. The husband filed his reply to the application filed by the
wife under Section 3(1)(a) of MWPA. It was stated in the reply that the
said application claiming maintenance, would not be maintainable in
law since there is a divorce.
11. By an order dated 20 August, 2014, the JMFC partly
allowed the application of the wife thereby granting Rs.4,32,000/- as
reasonable and fair provision and maintenance to be paid within t wo
months from the date of the order. Also further directing the husba nd
to handover the articles mentioned in the Schedule A of the application,
except the gold ornaments mentioned in the Schedule, within two
months from the date of the order. Further the husband was also
directed to pay Rs.3,000/- as cost of the application.
12. Being aggrieved by the order passed by the JMFC, the
husband challenged the same by way of Criminal Appeal No. 27 of
2014 before the Sessions Court at Khed, Ratnagiri. So also, the wif e
challenged the order passed by the JMFC by way of Criminal Revi sion
Application No. 43 of 2014 seeking the enhancement of the said
amount granted by the JMFC.
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13. It is submitted before this Court that in the meantime, from
the year 2014 to 2018, sum of Rs.1,50,000/- was paid to the wife by
the husband, in intervals.
14. Thereafter the Sessions Court heard the criminal appeal
filed by the husband and the Criminal Revision Application filed by the
wife, and by its order dated 18 May, 2017, the Sessions Court,
dismissed the criminal appeal filed by the husband and partly al lowed
the application filed by the wife, thereby granting a sum of Rs.9 lacs,
as a reasonable and fair provision of maintenance, to be paid wit hin
two months from the date of the order. And if the opponent fails to
make the payment within the said period, the said amount will car ry
interest at the rate of 8%, till realization of the entire amount.
15. Being aggrieved by the order passed by the JMFC and also
by the Sessions Court, the husband has filed the present Criminal
Revision Application under section 397 read with 401 of the Cr.P.C.
16. By an order dated 4 February, 2019, this Court directed the
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husband to deposit a further sum of Rs. 2 lacs in two installm ents i.e.
the first installment on or before 14 February, 2019 and the second
installment to be deposited on or before 14 March, 2019. Subject to
the deposit of the said amount, the impugned order of issuance of the
warrant was stayed. So also, the permission was granted to t he wife to
withdraw the said amount if deposited by the husband.
17. It is submitted before me that the husband complied with
the direction given by this Court on 4 February, 2019, by depositing the
said amount of Rs.2 lacs.
18. The wife thereafter re-married to a person called Wasi f
Yusuf Khan on 15 April, 2018. However, on 3 October, 2018, the wife
got divorce by way of Khula Nama.
19. Ms. Shaheen Kapadia, learned counsel made her
submissions on behalf of the applicant (husband) :-
19.1. Ms.Kapadia submitted that once it is admitted that the
respondent no.1 (wife) has remarried, there will be no question of
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granting her maintenance.
19.2. Ms. Kapadia further submitted that once respondent no.1
(wife) is remarried and there is a divorce obtained by the re spondent
no.1 from her second husband, the applicant ceased to be called as a
former husband because of remarriage of the respondent no.1 and
obtaining a divorce from her second marriage. She further submitted
that the respondent no.1(wife) can in such a situation seek mainte nance
only from the second husband.
19.3. Ms.Kapadia further submitted that the amount which was
granted in the impugned judgment and order, was available to the
respondent no.1 wife, only till she remarries.
19.4. Ms.Kapadia have also laid emphasis on explanation (b) of
section 125 of Cr.P.C. which defines “wife”, which according to her
would be a woman who has not remarried.
19.5. Ms.Kapadia further submitted that the application for
maintenance was filed after five years, after her client ga ve a
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customary divorce to the respondent no.1. She further submitted that
in fact the respondent no.1 (wife), even refused the ‘dower’.
19.6. Ms.Kapadia further submitted that the quantum what is
payable has to be fair and reasonable. She submitted that the impugned
order, both the courts have not decided the quantum fairly and
reasonably. She submitted that her client’s income was not suffici ent,
for the Court to grant a sum of Rs.9 lacs to be payable to the
respondent no.1 (wife).
19.7. She further submitted that the calculation made by the
Sessions Court is for a period of 30 years. How the period of 30 ye ars
has been arrived at by the Sessions Court has not been mentioned in the
impugned judgment and order. She further submitted that there is a
perversity in the impugned judgment and order as her client was
directed to pay the entire amount within the ‘Iddat Period’.
19.8. Ms.Kapadia further refers to the judgment of Supreme
Court passed by the Bench of five Judges of Danial Latifi & Anr. Vs.
Union of India reported in (2001) 7 SCC 740 . She stress on
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paragraph no.28 of the said judgment. She laid her emphasis more on
the last line of paragraph 28 which recorded that “it would exte nd to
the whole life of the divorce wife unless she get married for the second
time”. She submitted that therefore it is clear that the a mount so
granted first has to be reasonable and secondly the said amount coul d
be available only till the wife remarries.
19.9. Ms.Kapadia further submitted that as of today, her client
has remarried (for the third time) and the third wife and f our children
out of the said marriage are dependent on her client, the applicant .
Ms.Kapadia further submitted that it could be totally different c ase if
the respondent no.1 (wife) had not remarried, in such a situation, s he
could probably seek maintenance from the applicant, and in such a
situation, the question could have been what should be the quantum
payable to the respondent no.1 (wife). Ms.Kapadia further submitted
that the amount which was deposited pursuant to the directions given
by this Court, has still now not been withdrawn by the respondent no.1
(wife).
19.10. Ms.Kapadia also tendered the photocopy of the salary slip
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of the applicant for the year 2013, which shows the salary of the
applicant as 700 Saudi Riyal which on conversion as per Indian
currency approximately then would be Rs.11,000/-.
19.11. She also produced a photocopy of the salary of applicant
as of December 2023 which amount shows that the applicant receives
salary of 900 Saudi Riyal, which according to her after conversion to
Indian Rupee as of now would be around Rs.20,000/-. She submits
that therefore granting of an amount of Rs. 9,00,000/- as a lump-sum
payment to the respondent no.1, could not be called as fair and
reasonable as the applicant was not earning sufficient amount to grant
such a big amount. She submitted that the applicant was not in a
position to pay such a huge amount to the respondent no.1.
19.12. Ms.Kapadia also submitted that one has to see the
intention of the Legislature in enacting the MPWA Act, which i s to
avoid vagrancy and destitution of a ‘divorced wife’. She submits t hat
directing the applicant to pay a sum of Rs.9 lacs after the re spondent
no.1 wife remarried and once she is maintained by the second husband
of her’s, this amounts to luxury.
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19.13. Ms.Kapadia submitted that therefore the present criminal
revision application is required to be allowed and the order pass ed by
the Sessions Court and the JMFC should be quashed and set aside.
20. Mr.Butala, learned counsel made submissions on behalf of
the respondent no.1 (wife) :-
20.1. Mr.Butala submitted that one has to see the conduct of the
husband. Mr.Butala furnished a photocopy of minimum wages as of
the year 2011 obtained from the website of the Indian Embassy, A bu
Dhabi, United Arab Emirates. He submitted that even for a helper in
Abu Dhabi as of March 2011, the minimum amount payable as shown
as per the chart 1200 UAE Dhirams which according to him as of
March 2011 would be Indian Rupees 15,500/-.
20.2. He further submits that as of December 2023 even though
he was not able to find out from the website of the Indian Embas sy
what would be the amount of minimum payment of a helper, but
according to him the lowest expected salary as of December 2023 for
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helper would be 2500 UAE Dhirams. Which according to him after
conversion into Indian Rupees as of December 2023 would be
Rs.55,000/-.
20.3. Mr.Butala further submitted that the applicant with ulterior
motives did not produce on record his income proof. Therefore, the
Sessions Judge and the Magistrate Court had to only make the
guesswork to arrive at the quantum.
20.4. Mr.Butala further submitted that the false submissions
were made before the JMFC, from side of the husband, by stating t hat
the husband was not working in the year 2013. He however submitted
that only yesterday while arguing, the photocopy of the so called sala ry
certificate was produced before this Court to show that the appli cant
was earning around 700 Riyal.
20.5. He further submitted that even in Sessions Court, no
documents were produced to show what was the earning of the
applicant (husband). He further submitted that an affidavit is fi led
before this Court on 4 January, 2023 wherein in paragraph (26) it is
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specifically mentioned that the applicant (husband) is working at a
juice centre at Dubai on minimum wages. Mr.Butala further submi tted
that the applicant to show his bonafide, could have voluntarily stated in
the affidavit, as to what is his monthly income. However, by not
mentioning the amount, would amount to suppression on the part of the
applicant, and only on this ground, the present application deserves to
be dismissed.
20.6. He further submitted that the applicant has not even
produced the photocopy of his passport to show his stay in the Gulf
countries from the day the application was made under section 3(1)( a)
by the respondent no.1 wife, till today.
20.7. Mr.Butala while making his legal submissions, submitted
that if an application is made under section 125 of the Cr.P.C. for
monthly maintenance, and if a party feels that there is a change in the
circumstances, application can be made under section 127 for
alteration. He submitted that however under the MWPA Act, ther e is
no such like the one available under section 127 of the Cr.P.C.
Mr.Butala submitted that the Legislature was quite clear whil e enacting
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the section 3 of the MWPA Act, which does not allow any kind of
enhancement and the said amount payable under section 3(1)(a) is
defined as ‘reasonable and fair provision’ and maintenance to be m ade
and paid by the former husband within ‘Iddat Period’. He further
submitted that section 3 of the MWPA Act does not use the word
‘remarry’. He submits that however section 4 of the MPWA Act ,
which is for maintenance specifically, from the relatives of woman, a nd
if not paid to be payable by Waqf Board, uses the word ‘ remarry’ . He
therefore submitted that the specific exclusion of the word ‘ remarry’
from section 3, puts section 3 on a different pediar. He fur ther
submitted that section 4 of MWPA uses the word specifically the
maintenance. He submits that in the present proceedings the
respondent no.1 wife had filed an application specifically under se ction
3 of the MWPA.
20.8. Mr. Butala further submitted that initially when the
respondent no.1 wife filed the proceedings under section 125 of the
Code of Criminal Procedure, for herself, the applicant with an ul terior
motives gave her ‘Talaq Nama’. By doing so, when he was aware about
the provisions of section 3 of MWPA, he has taken that risk. Mr.Butala
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further submitted that the applicant had given Talaq to the res pondent
no.1 (wife) in the year 2008. The Sessions Court order was passed i n
the year 2017. However, even then the respondent no.1 was not ready
to pay, or comply with the directions given by the Sessions Court.
Infact, the applicant thought it proper to challenge the same by wa y of
the present criminal application, and only a sum of Rs.1,50,000/- was
paid in a span of 2015 to 2018. Thereafter the respondent (wife)
remarried. However, unfortunately that marriage lasted only fo r a
period of four months.
20.9. Mr.Butala submitted that it can’t be argued by the
applicant husband that in case if the full amount of Rs.9 lacs as ordered
by the Sessions Court, was paid by the applicant in time, and ther eafter
the respondent no.1 had remarried, the applicant (husband) could have
filed an application for refund of the amount paid by him.
20.10. He further submitted that since there is no provision under
the MWPA Act to seek enhancement, the Legislature with such
intention has made the provisions of section 3, therefore, the forme r
husband can’t seek any deduction. He further submitted that in a
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hypothetical case, based on the income as prevailing on the date of the
decision taken by the Court under section 3 of MWPA Act, and la ter if
the income of the husband is substantially increased, the former wife
would have no right to seek an enhancement.
20.11. Mr.Butala thereafter referred to the judgment of Supreme
Court delivered in case of Danial (supra). He referred to paragraph
nos. 27, 28, 29, 36(1) and 36(2). He further submitted that if one goes
through the relevant paragraphs of the Supreme Court judgment in case
of Danial (supra), it is clear that even though the divorce is filed a fter
performing the second marriage, the amount which is granted by the
Court under the provisions of section 3(1)(a) of the MWPA Act, has to
be paid by the former husband. He further submitted that there can’t be
an argument that on the count of two failed marriages, the pre sent
applicant ; can seek a remedy from the Court that the respondent no.1
wife should seek similar kind of relief against second former husband.
21. I have heard both the sides and I have gone through the
documents produced on record.
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22. The Preamble of Muslim Women (Protection of Rights on
Divorce) Act, 1986, proposes “to protect the rights of Muslim Wom en
who have been divorced by, or have obtained divorce from, their
husbands and to provide for matters connected therewith or incide ntal
thereto”. The said Act proposes to cast an obligation on the husband s
to make a reasonable and fair provision and maintenance towards t heir
former wives.
22.1. It is necessary to reproduce certain Sections of the Muslim
Women (Protection of Rights on Divorce) Act 1986 :-
Section 2. Definitions.—In this Act, unless the context
otherwise requires,—
Section 2 (a) “divorced woman” means a Muslim
woman who was married according to Muslim law,
and has been divorced by, or has obtained divorce
from, her husband in accordance with Muslim law;
Section 2 (b) “iddat period” means, in the case of a
divorced woman,—
(i) three menstrual courses after the date of divorce, if
she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not
subject to menstruation; and
(iii) if she is enceinte at the time of her divorce, the
period between the divorce and the delivery of her
child or the termination of her pregnancy, whichever is
earlier;
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Section 3. Mahr or other properties of Muslim
woman to be given to her at the time of divorce.—
(1) Notwithstanding anything contained in any other
law for the time being in force, a divorced woman shall
be entitled to—
(a) a reasonable and fair provision and maintenance to
be made and paid to her within the iddat period by her
former husband ;
[Emphasis supplied ]
Section 4. Order for payment of maintenance .—
(1) Notwithstanding anything contained in the
foregoing provisions of this Act or in any other law for
the time being in force, where a Magistrate is satisfied
that a divorced woman has not re-married and is not
able to maintain herself after the iddat period, he may
make an order directing such of her relatives as would
be entitled to inherit her property on her death
according to Muslim law to pay such reasonable and
fair maintenance to her as he may determine fit and
proper, having regard to the needs of the divorced
woman, the standard of life enjoyed by her during her
marriage and the means of such relatives and such
maintenance shall be payable by such relatives in the
proportions in which they would inherit he property
and at such periods as he may specify in his order.
Provided that where such divorced woman has
children, the Magistrate shall order only such children
to pay maintenance to her, and in the event of any such
children being unable to pay such maintenance, the
Magistrate shall order the parents of such divorced
woman to pay maintenance to her.
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Provided further that if any of the parents is unable to
pay his or her share of the maintenance ordered by the
Magistrate on the ground of his or her not having the
means to pay the same, the Magistrate may, on proof of
such inability being furnished to him, order that the
share of such relatives in the maintenance ordered by
him be paid by such of the other relatives as may
appear to the Magistrate to have the means of paying
the same in such proportions as the Magistrate may
think fit to order.
(2) Where a divorced woman is unable to maintain
herself and she has no relatives as mentioned in sub-
section (1) or such relatives or any one of them have
not enough means to pay the maintenance ordered by
the Magistrate or the other relatives have not the means
to pay the shares of those relatives whose shares have
been ordered by the Magistrate to be paid by such other
relatives under the second proviso to sub-section (1),
the Magistrate may, by order, direct the State Wakf
Board established under section 9 of the Wakf Act,
1954 (29 of 1954), or under any other law for the time
being in force in a State, functioning in the area in
which the woman resides, to pay such maintenance as
determined by him under sub-section (1) or, as the case
may be, to pay the shares of such of the relatives who
are unable to pay, at such periods as he may specify in
his order.
22.2. The word used in section 3(1)(a) is ‘provision’ and word
‘remarry’ is absent in section (3).
In other words the Act seeks to prevent the destitution of
Muslim Women and ensure their right to lead a normal life e ven after
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a divorce. Hence the legislative intent of the Act is clear. It is to
protect ‘all’ divorced Muslim Women and safeguard their rights.
22.3. The protection referred to in the MWPA is
unconditional. Nowhere does the said Act intend to limit the
protection that is due to the former-wife on the grounds of the
remarriage of the former-wife. The essence of the Act is tha t a
divorced woman is entitled to a reasonable and fair provision and
maintenance regardless of her remarriage. The fact of divorce
between the husband and wife is in itself sufficient for the wife to
claim maintenance under section 3 (1) (a).
22.4. Such entitlement of a reasonable and fair provision and
maintenance is crystallised on the date of divorce and the right to a
reasonable and fair provision and maintenance is not hampered by the
former-wife’s remarriage. The sole exception to this norm li es in
section 4 of the said Act wherein it is explicitly mentioned that the
relatives of the wife inheriting from her are under the obligation to
maintain her only till the time she has not remarried. Unlike s ection
4 ; section 3 is devoid of any such limitation. Section 3 does not
absolve the husband of his duty to make and pay a reasonable and fair
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provision and maintenance after the remarriage of the former-wife.
22.5. If a condition that ‘a husband is absolved of his duty
when the wife remarries’ is accepted, then the husband would
deliberately await his wife’s remarriage. Such a condition is unfair
and unacceptable on the face of it will frustrates the very ess ence of
the said Act.
23. The judgment of Supreme Court in case of Danial (supra)
paragraph nos. 27, 28, 29 and 36(1) and 36(2) reads as under :-
27. Section 3(1) of the Act provides that a divorced
woman shall be entitled to have from her husband, a
reasonable and fair maintenance which is to be made
and paid to her within the iddat period. Under Section
3(2) the Muslim divorcee can file an application before
a Magistrate if the former husband has not paid to her a
reasonable and fair provision and maintenance or mahr
due to her or has not delivered the properties given to
her before or at the time of marriage by her relatives,
or friends, or the husband or any of his relatives or
friends. Section 3(3) provides for procedure wherein
the Magistrate can pass an order directing the former
husband to pay such reasonable and fair provision and
maintenance to the divorced woman as he may think fit
and proper having regard to the needs of the divorced
woman, standard of life enjoyed by her during her
marriage and means of her former husband. The
judicial enforceability of the Muslim divorced womans
right to provision and maintenance under Section (3)
(1)(a) of the Act has been subjected to the condition of
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husband having sufficient means which, strictly
speaking, is contrary to the principles of Muslim law as
the liability to pay maintenance during the iddat period
is unconditional and cannot be circumscribed by the
financial means of the husband. The purpose of the Act
appears to be to allow the Muslim husband to retain his
freedom of avoiding payment of maintenance to his
erstwhile wife after divorce and the period of iddat .
28. A careful reading of the provisions of the Act
would indicate that a divorced woman is entitled to a
reasonable and fair provision for maintenance . It was
stated that Parliament seems to intend that the divorced
woman gets sufficient means of livelihood, after the
divorce and, therefore, the word provision indicates that
something is provided in advance for meeting some
needs. In other words, at the time of divorce the
Muslim husband is required to contemplate the future
needs and make preparatory arrangements in advance
for meeting those needs . Reasonable and fair provision
may include provision for her residence, her food, her
cloths, and other articles. The expression within should
be read as during or for and this cannot be done
because words cannot be construed contrary to their
meaning as the word within would mean on or before,
not beyond and, therefore, it was held that the Act
would mean that on or before the expiration of the iddat
period, the husband is bound to make and pay a
maintenance to the wife and if he fails to do so then the
wife is entitled to recover it by filing an application
before the Magistrate as provided in Section 3(3) but no
where the Parliament has provided that reasonable and
fair provision and maintenance is limited only for the
iddat period and not beyond it. It would extend to the
whole life of the divorced wife unless she gets married
for a second time.
29. The important section in the Act is Section 3
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which provides that divorced woman is entitled to
obtain from her former husband maintenance,
provision and mahr, and to recover from his possession
her wedding presents and dowry and authorizes the
magistrate to order payment or restoration of these
sums or properties. The crux of the matter is that the
divorced woman shall be entitled to a reasonable and
fair provision and maintenance to be made and paid to
her within the iddat period by her former husband. The
wordings of Section 3 of the Act appear to indicate that
the husband has two separate and distinct obligations :
(1) to make a reasonable and fair provision for his
divorced wife; and (2) to provide maintenance for her.
The emphasis of this section is not on the nature or
duration of any such provision or maintenance, but on
the time by which an arrangement for payment of
provision and maintenance should be concluded,
namely, within the iddat period . If the provisions are so
read, the Act would exclude from liability for post-
iddat period maintenance to a man who has already
discharged his obligations of both reasonable and fair
provision and maintenance by paying these amounts in
a lump sum to his wife, in addition to having paid his
wifes mahr and restored her dowry as per Section 3(1)
(c) and 3(1)(d) of the Act. Precisely, the point that
arose for consideration in Shah Banos case was that the
husband has not made a reasonable and fair provision
for his divorced wife even if he had paid the amount
agreed as mahr half a century earlier and provided
iddat maintenance and he was, therefore, ordered to
pay a specified sum monthly to her under Section 125
CrPC. This position was available to Parliament on the
date it enacted the law but even so, the provisions
enacted under the Act are a reasonable and fair
provision and maintenance to be made and paid as
provided under Section 3(1)(a) of the Act and these
expressions cover different things, firstly, by the use of
two different verbs to be made and paid to her within
the iddat period, it is clear that a fair and reasonable
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provision is to be made while maintenance is to be
paid; secondly, Section 4 of the Act, which empowers
the magistrate to issue an order for payment of
maintenance to the divorced woman against various of
her relatives, contains no reference to provision.
Obviously, the right to have a fair and reasonable
provision in her favour is a right enforceable only
against the womans former husband, and in addition to
what he is obliged to pay as maintenance; thirdly, the
words of the Holy Quran, as translated by Yusuf Ali of
mata as maintenance though may be incorrect and that
other translations employed the word provision, this
Court in Shah Banos case dismissed this aspect by
holding that it is a distinction without a difference.
Indeed, whether mata was rendered maintenance or
provision, there could be no pretence that the husband
in Shah Banos case had provided anything at all by
way of mata to his divorced wife. The contention put
forth on behalf of the other side is that a divorced
Muslim woman who is entitled to mata is only a single
or one time transaction which does not mean payment
of maintenance continuously at all. This contention,
apart from supporting the view that the word provision
in Section 3(1)(a) of the Act incorporates mata as a
right of the divorced Muslim woman distinct from and
in addition to mahr and maintenance for the iddat
period, also enables a reasonable and fair provision and
a reasonable and fair provision as provided under
Section 3(3) of the Act would be with reference to the
needs of the divorced woman, the means of the
husband, and the standard of life the woman enjoyed
during the marriage and there is no reason why such
provision could not take the form of the regular
payment of alimony to the divorced woman, though it
may look ironical that the enactment intended to
reverse the decision in Shah Banos case, actually
codifies the very rationale contained therein .
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36. While upholding the validity of the Act, we may
sum up our conclusions:
1) a Muslim husband is liable to make
reasonable and fair provision for the future of
the divorced wife which obviously includes her
maintenance as well. Such a reasonable and fair
provision extending beyond the iddat period
must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act.
2) Liability of Muslim husband to his divorced
wife arising under Section 3(1)(a) of the Act to
pay maintenance is not confined to iddat period.
[Emphasis supplied]
24. The Supreme Court in the judgment of Danial (supra) has
clarified that the divorced muslim woman shall be entitled t o a
reasonable and fair provision and maintenance to be paid to her. T he
emphasis of Section 3 is not on the nature or duration of any such
provision or maintenance, but on the time by which an arrangement f or
payment of maintenance should be concluded namely, within the iddat
period. Full Bench judgment in case of Karim Abdul Rehman Shaikh
vs. Shehnaz Karim Shaikh, reported in 2000 Cri. LJ 3560 (Bom) (FB)
was considered by the Supreme Court in the judgment of Danial
(supra).
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25. A revision application filed under section 125 of the Criminal
Procedure Code by the respondent no.1(wife) was opposed by the
applicant (husband). The said application was accordingly rejected.
The husband did not produce before the Magistrate Court and the
Sessions Court, his salary certificate/details. The husband als o filed
additional affidavit dated 4 January 2023, before this Court. In
paragraph No.26 of the affidavit, the husband stated that he is working
in juice centre. However, it is not mentioned in the said aff idavit the
income/salary of the husband. While arguing the present Criminal
Revision Application, the husband has produce document which
according to him is salary certificate, wherein his sala ry is shown as
Rs.15,000/-. As per Respondent No.1 (wife), the salary of Petitioner
(husband) in the year 2011, would have been Rs.15,500/- as per the
information available on the website of Indian Embassy, payable to a
helper. According to them, as of today the minimum salary could be
around Rs.55,000/-. Under the MPWA, there is no provision for
enhancement of amount once granted under Section 3. On the date of
passing of impugned order the amount payable by husband got
crystallized, therefore, even in future if the divorce wife re-marries, it
will not make a difference if the amount is payable in lumsum. T he
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difference would be only when the amount is payable monthly.
Therefore, the amount of Rs.9,00,000/-, in my opinion in fair and
reasonable.
26. It is nobody’s case that the respondent no.1 (wife) has filed
a separate application under the provisions of MWPA Act or under t he
provisions of section 125 of the Cr.P.C. against her second husband.
The Applicant is paying only Rs.3,000/- per month as maintenance to
the daughter of Respodnent No.1, from the year 2014.
27. Both the Courts have recorded that the applicant (husband)
has not produced the income proof. Therefore, without such
documents before them they have arrived at the reasonable figure on
the basis of some guess work in which I found no fault. Admittedl y, as
of date the entire amount payable under the impugned order has not
been paid or deposited by the applicant. There is a protection or der
granted by this Court to the applicant.
28. Learned counsel for the respondent no.1 has submitted that
after deposit of Rs.2 lacs in the executing court, the respondent no.1,
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though tried seek circulation of the present matter so as to take i t on the
board. However, due to one or the other reason, the matter could not
be heard and disposed off.
29. In the circumstances, I find no merit in the present
Criminal Revision Application, and the same is dismissed.
30. The sum of Rs.2,00,000/- deposited by the Applicant, is
immediately allowed to be withdrawn by Respondent No.1 (wife),
along with accrued interest.
31. The Respondent No.1, is also granted liberty to file application
for enhancement of maintenance amount to daughter ‘Mehvish’. If
such an application is preferred the same should be head and dispose of
on it own merits.
32. At this stage, Ms.Kapadia, advocate appearing for the
Applicant (husband) seeks stay to the execution of the order. The
request has been opposed by Mr.Butala, advocate appearing for
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Respondent No.1 (wife). The request of Ms.Kapadia is accordingly
rejected.
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The Bombay High Court recently held that a divorced Muslim woman is entitled to mahr (lumpsum maintenance amount payable by husband to wife on divorce) from her husband as stipulated under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPA) even if she has remarried.
Single-judge Justice Rajesh Patil observed that Section 3(1)(a) of the MWPA does not contain the word 'remarriage' and hence the protection of that maintenance (or mahr) was unconditional and would apply even after the woman (respondent) remarries.
"Nowhere does the said Act intend to limit the protection that is due to the former wife on the grounds of the remarriage of the former wife. The essence of the Act is that a divorced woman is entitled to a reasonable and fair provision and maintenance regardless of her remarriage. The fact of divorce between the husband and wife is in itself sufficient for the wife to claim maintenance under section 3(1)(a). Section 3 does not absolve the husband of his duty to make and pay a reasonable and fair," the judge observed in the order.
The Court further elaborated that if a condition is added in the Act that 'the husband is absolved of his duty when the wife remarries, then the husband would deliberately await his wife's marriage.
Section 3 defines what is a 'mahr' or dower which is a lumpsum amount that a divorced Muslim woman is entitled to.
Sub-clause (1)(a) stipulates for a fair and reasonable maintenance that a woman is entitled to get within the iddat period (which is a short 2-3 month period after a marriage ends).
The judgment came in response to a revision application filed by a man challenging a maintenance order passed by Magistrate at Chiplun which was subsequently upheld and enhanced by the Sessions Court at Ratnagiri.
The couple had gotten married in 2005 and they had a daughter. In 2008, the petitioner divorced the wife and she applied for maintenance under Section 3(1)(a) in 2012.
In 2014, the Magistrate granted ₹4,32,000 as lumpsum maintenance to be payable by the petitioner to his former wife in 2 months. The petitioner challenged this order before the sessions court.
The sessions court in 2017 dismissed the appeal and enhanced the maintenance amount to ₹9 lakh payable by the petitioner within 2 months. On failure to pay, the amount was to carry interest @8% per year till the amount is completely paid.
The petitioner challenged this order before the High Court. He also paid ₹1,50,000 to the respondent in intervals.
Meanwhile, the woman remarried in 2018.
The petitioner then sought quashing of the sessions court order on the ground that the respondent had remarried.
Justice Patil did not agree with this argument and opined that the entitlement to a fair and reasonable provision and maintenance of a divorced wife is crystallised on the date of divorce and is not hampered by the former wife's remarriage.
"On the date of passing of impugned order the amount payable by the husband got crystallized, therefore, even in the future if the divorced wife re-marries, it will not make a difference if the amount is payable in lumsum. The difference would be only when the amount is payable monthly. Therefore, the amount of ₹9,00,000, in my opinion in fair and reasonable," the Court held.
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K. Vinod Chandran & M.R. Anitha, JJ.
W.P(C) No.11312 of 2021
Dated, this the 24th day of May, 2021
Vinod Chandran, J.
The above writ petition is filed seeking
inclusion of Judicial Officers and Lawyers in the
priority category for vaccination against COVID 19. The
learned Counsel for the petitioner points out the
declaration of the State Government of Chhattisgarh
recognizing Journalists and Lawyers as front line
workers. We were also informed that the officials and
staff engaged in running the High Court of Delhi have
been recognized as front line warriors considering the
requirement for their presence in the High Court to
'keep the wheels of justice whirring' (sic) , though the
hearings are carried out virtually. A similar situation
exists in this Court also.
2. We have heard the learned Counsel for the
petitioner and the State Attorney. We are told that even
in this State the Journalists have been prioritized for
vaccination. While we agree with the petitioners that
the Lawyers, who are the most important conduit for the
W.P(C)No.11312/2021 - 2 -
general public in accessing justice; prioritization has
to be made taking into consideration those in active
practice. In this context we have to notice that though
no specific prayer is made it could apply to Advocate
Clerks also on a need-to basis depending on the actual
engagement, warranting exposure to the pandemic.
3. As far as the Judicial Officers are concerned;
which in the Subordinate Judiciary of this State stands
at a total strength of less than 500, it is pertinent to
remind the State Government that during the initial
lock-down period and the present one, as also in between
when the pandemic was spreading unabated; the Courts
were and are still functioning. Though restrictions were
placed so as to avoid crowding, matters were taken up
daily in every Court functioning within the State and
even during the lock-down period the presence of the
Judicial Officers and skeletal staff were required as
per the administrative instructions of the High Court.
In this context, we notice that the entire employees of
the State Government were automatically registered for
vaccination through SPARK, the application employed for
disbursement of salaries, though the same was done in
W.P(C)No.11312/2021 - 3 -
the wake of elections to the Legislative Assembly of the
State. But for those who voluntarily opted out, almost
the entire work force of the State has been inoculated.
The staff of the Subordinate Courts in every Districts
and the employees of the Registry of this Court are also
paid by the State Government though the control and
supervision is on the High Court by virtue of the
Constitutional provisions. It is only proper that the
Judicial Officers and the Staff of the Registry of the
High Court and the Subordinate Courts in the State be
inoculated so as to enable them to safely function,
ensuring every citizen access to justice.
4. The High Court, on the administrative side has
constituted Committees at every District centers with
the Principal District Judge as the Chairman to look
into the requirements of the Judicial Officers, the
Staff members, the Advocates and Advocate Clerks
afflicted with the disease. The State Attorney shall
ensure that the District Collectors take up the matter
of inoculation of the Staff of the Subordinate Courts
with the Principle District Judges of each District and
device methods to provide inoculation to the Judicial
W.P(C)No.11312/2021 - 4 -
Officers and the staff of the Subordinate Courts in the
14 Districts on a priority basis. The registration could
be automatically facilitated through the salary
disbursal application, SPARK which is the application
used for disbursal of salary to the judicial staff also.
5. Like wise the Registry of the High Court has
been functioning prior to the present lock-down in full
strength and even in circumstances wherein the
advisories of the Government stipulated lesser staff
strength. The entire staff were employed on a rotation
basis exposing them to a possible infection, though not
on a daily basis. Even in the circumstances of a triple
lock-down within the District of Ernakulam the Registry
was functioning with 25% staff strength as in the
District Judiciary. For the High Court and its staff a
Committee has been constituted with the Registrar
(Administration) as its Chairman. We are of the opinion
that the State Government should prioritize the Staff of
the High Court as in the case of the staff of the
Subordinate Courts considering their exposure to the
pandemic; and we direct to facilitate the same.
6. To facilitate further action in the above
W.P(C)No.11312/2021 - 5 -
matter we deem it fit that the Registrar General and
Registrar (District Judiciary) be impleaded as
additional respondents 4 and 5 herein, who shall
respectively take up the matter of inoculation of the
entire staff of the Registry of the High Court and the
Judicial Officers and staff of the Subordinate Courts. A
report on the action taken shall be placed by the 2nd
respondent and the additional respondents 4 and 5 within
a period of two weeks from today.
7. As far as the Advocates in the State are
concerned the State Government in consultation with the
representatives of the Advocate Association and the Bar
Council of Kerala shall device a method by which the
Advocates enrolled with the Bar Council who are in
active practice and the Clerks enrolled with the
Advocate Clerks Welfare Fund and are regularly employed
with Advocates having actual practice are identified and
provided inoculation with expedience.
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The Kerala High Court on Monday urged the State government to look into prioritising COVID-19 vaccination for judicial officers and court staff on par with other "State employees", who are already being administered vaccination on priority basis (Benny Anthony Parel v. Union of India).
A Bench of Justices Vinod Chandran and MR Anitha was hearing a plea concerning the vaccination of lawyers, when this issue came to the notice of the Court.
"Judicial officers have been sitting every day. Even if they are not sitting, they have been asked by High Court to make themselves available. There are less than 500 judicial officers in the State. Why don't you vaccinate them immediately?" Justice Chandran asked today.
He also went on to observe that court staff is another group who have been ignored.
"Another marginalized section we have totally ignored .... (is) court staff. We introduced e-filing. Nobody is e-filing. How do you handle those physical files The staff also is not that high a number," he said.
These oral observations were made in the backdrop of the Kerala government having vaccinated all its "State employees" on a priority basis.
"All State government employees are vaccinated. Police and health workers being vaccinated on a priority basis, it is fully justified. Next, State employees were vaccinated on account of elections. On SPARK (app), they were automatically registered," Justice Chandran noted today.
While so, he questioned the State on why judicial officers and court staff have not been considered as "State employees" eligible for prioritised vaccination.
"These are also State employees. Only because of independence of the judiciary under the Constitution, they are under the control of High Court. But why are they not covered as State employees? Why don't you extend (prioritized vaccination) to the registry and staff of court to whom you give salaries?", Justice Chandran asked the State.
He went on to remark further,
"They have been regularly attending office like any other State government employee for the past one year and they are continuing. We cannot forget those who assist us. Lawyers and judges, at least we in the High Court, are insulated to an extent. What about the staff? They have to come. This High Court has been sitting all through last year, physically and through video conference - all the judges. For the judges to sit physically, necessarily there has to be staff."
As for the plea for the prioritised vaccination of lawyers, the judge observed that the number of lawyers in active practice has to be determined first after due consultation with the Bar Associations.
The Court also noted that the petition only deals with lawyers as of now, and that clerks have been left out. The petitioner's counsel told the Court that a separate petition may be filed on behalf of the clerks.
Advocate Saiby Jose Kidangoor, appearing for the petitioner, also expressed agreement with the Court's suggestion. Among other submissions, he informed the Court that over 50 lawyers have died amid the pandemic recently.
Advocate Santhosh Mathew suggested that the Bar Associations or the Bar Council should also be permitted to procure COVID-19 vaccines from the manufacturers, so that they may supplied to eligible lawyers.
State Attorney KV Sohan, appearing for the Kerala government, agreed to to look into the aspect of the State consulting Bar Associations for identifying actively practicing lawyers.
While the Bench initially considered posting the matter on Wednesday, it later said that the case may be taken up next week after the State Attorney examines the issue.
An interim order would be passed on the aspect of vaccinating judicial officers and court staff on a priority basis, the Court further informed.
In the course of the hearing, Justice Chandran also mused that the Court could ask District Collectors to coordinate with the administrative committees created by the High Court to look into the same.
|
W.P.(C) No. 5319 of 2023
Vikash Kumar Dubey Petitioner(s).
Versus
1.The Jharkhand State Bar Council, Ranchi.
2.Bar Council of India, 19, New Delhi.
3.Sarawan Kumar @ Shrawan Ram Respondent(s)
For the Petitioner(s) : M/s. Sheo Kr. Singh & R.N. Chatterjee, Advocates.
For the Bar Council : Ms. Neha Bhardwaj, Advocate.
For Respondent No. 3 : Mr. Rajesh Kumar, Advocate.
For the Bar Council : Mr. R. Krishna, Chairman.
06 /17.01.2024: Heard the learned counsel for the parties.
2. Learned counsel for the Bar Council prays for some time.
3. The prayer for adjournment made by the learned counsel for the Bar
Council is rejected, mainly on the ground that the Bar Council has initiated an
disciplinary enquiry in respect of a complaint made by respondent No. 3 against
the petitioner, who is a practicing lawyer. The role of the Bar Council is limited.
They should act as a neutral body and they cannot take side of any of the
parties. Thus, they need not be heard on the merit of the case. The Bar council
can only make submission if their jurisdiction is challenged.
4. By filing this petition, the petitioner, who is a practicing lawyer at
Palamau at Daltonganj, has challenged the initiation and continuation of
disciplinary enquiry being D.C. Enquiry No. 3/2023, initiated against the petitioner
by Jharkhand State Bar Council vide notice dated 26.8.2023.
5. Counsel for the petitioner submits that admittedly the petitioner is a
lawyer and he was conducting matrimonial cases and other cases representing
the wife of respondent No. 3 against the respondent No. 3. Only to wreak
vengeance and to preempt the petitioner from defending the wife of respondent
No. 3, against the respondent No. 3, in several court proceedings, this frivolous
complaint has been filed. He submits that the Bar Council on frivolous allegation
and the allegation, which is not at all connected with the professional conduct of
the petitioner, has entertained the same and has initiated a Disciplinary
proceeding against the petitioner. He lastly submits that from the allegation
levelled, even if on the face value the same is taken to be true, anyone who
would be aggrieved, is the wife of the respondent No. 3 i.e. the client of this
petitioner, but surprisingly, she has not made any complaint against the lawyer.
Thus, he prays that this petition be allowed.
6. Mr. Rajesh Kumar, learned counsel for the complainant, submits that
from the complaint itself, which has been filed as per Chapter-II, Part VI, Rule-V
of the Bar Council Rules and as per the complaint, there is serious misconduct
committed by the petitioner, which requires initiation of a Disciplinary Proceeding.
It is his contention that at the very initial stage, the proceeding cannot be
strangulated rather the petitioner should appear before the Disciplinary
Committee and make submissions on his behalf and only after if any adverse
order is passed, this Court gets jurisdiction to entertain any application under
Article 226 of the Constitution. It is his contention that this application, filed under
Article 226 of the Constitution of India challenging the notice and initiation of the
Disciplinary Enquiry is premature.
7. The learned Chairman, Jharkhand State Bar Council submits that
they have jurisdiction to entertain the complaint.
8. After hearing the parties, I am not entering into the question of
jurisdiction of the Bar Council. Even for the sake of arguments, if it is held that
the Jharkhand State Bar Council has jurisdiction to entertain the complaint, then
also on the face of it, I find that there is merit for entertaining and allowing the
writ petition.
9. Admittedly, the petitioner is an Advocate. Admittedly, a long standing
matrimonial dispute is going on between respondent No. 3 and his wife-
divorce case and a proceeding under Section 125 Cr.P.C. Admittedly, the
petitioner is the lawyer representing before the Civil Courts. On this
background, the present complaint has been lodged by respondent No. 3 before
the Jharkhand State Bar Council praying therein to initiate a disciplinary
proceeding against the petitioner on the ground that he has professionally
misconducted himself.
10. The complaint has been brought on record which is at Annexure-1 to
this writ petition. In the said complaint, the complainant has admitted that after
his marriage with , a matrimonial dispute cropped up between them and
she left his house. The petitioner is a lawyer representing It is alleged
that this petitioner and i has developed illicit relationship between them
and they have indulged in physical relationship. Further, it is alleged that the
petitioner is trying to extort money from the complainant. It is further alleged that
had also threatened the complainant to the effect that with assistance
of this petitioner i.e. the lawyer. He further alleges that he has given rupees ten
lakhs to to save life of children and also reported the matter before the
Daltonganj Police Station, for which Daltonganj (Town) P.S. Case No. 123 of
2022 has been registered and chargesheet has been submitted thereafter
cognizance has been taken.
11. From the complaint, it is quite clear that the relationship between the
complainant and is admittedly bitter and there are Court cases amongst
them. On this ground, the complainant has approached the Jharkhand State Bar
Council alleging immoral act of this petitioner along with the wife- ,
along with allegation that is extorting money with help of the petitioner.
12. Admittedly, both and petitioner are major and the allegation
of physical relationship has been levelled by the husband, who is not having
good term with the wife. Surprisingly, the wife has not filed any complaint. If there
was any sexual act or any misconduct committed by the petitioner-Advocate
upon would have been the only person who could have
lodged a complaint. In this case, it is the husband, who is adversary of
has lodged the complaint. There is no professional relationship between the
respondent No. 3 (complainant) and this petitioner, rather it is with the
who has never lodged any complaint or nor shown any displeasure against this
petitioner before any authority, about any conduct, be it professional or other.
13. So far as one criminal case, which was initiated against Vikash
Kumar Dubey i.e. the petitioner herein, by respondent No. 3 being Complaint
Case No. 299 of 2022, it is also admitted that that the summoning order dated
11.11.2022 has been quashed by a Co-ordinate Bench of this Court by
exercising jurisdiction Section 482 Cr.P.C in Cr.M.P. No. 48099 of 2022. The said
case was filed by respondent No. 3 against this petitioner i.e. the Advocate,
alleging that respondent No. 3 is being harassed by this Advocate both mentally
and physically and he has committed robbery of valuable documents pertaining
to land, educational certificate and Bank deposits of respondent No. 3
In the aforesaid order, the learned Co-ordinate Bench of this Court has
held that the continuation of criminal proceeding against this petitioner is gross
abuse of the process of the Court.
14. Considering the totality of the matter, I find that this complaint before
the Jharkhand State Bar Council has been filed by respondent No. 3 with mala
fide, with an intention to wreak vengeance, that too against a professional
lawyer, who was defending his client i.e. the wife of the complainant. Further
respondent No. 3 has got no locus to lodge the complaint before Jharkhand
State Bar Council, when there is no professional relationship between the
petitioner and the complainant. This sort of behaviour of respondent No. 3 is
absolutely deprecated.
15. Considering the aforesaid facts, this writ petition is allowed.
Consequently, Notice Ref. No. 1688 of 2023 dated 26.8.2023 in D.C. Enquiry No.
3/2023 is quashed. The complaint dated 5.9.2022, filed by respondent No. 3
along with entire proceeding started by the Disciplinary Committee, Jharkhand
State Bar Council against the petitioner is also quashed.
|
The Jharkhand High Court recently quashed disciplinary proceedings initiated by the State Bar Council against a lawyer who allegedly was in an "illicit" physical relationship with his client [Vikash Kumar Dubey v. The Jharkhand State Bar Council].
Justice Ananda Sen concluded that the complaint was filed with mala fide intentions to wreak vengeance on a professional lawyer who was defending the complainant’s wife in a matrimonial case.
The Court also ruled that the complainant had no locus standi to lodge the complaint since he had no professional relationship with the lawyer, Vikas Kumar Dubey (petitioner).
“This sort of behaviour of respondent No. 3 [complainant] is absolutely deprecated,” the Court remarked.
While challenging the disciplinary enquiry against him, Dubey had told the Court that he was representing the complainant’s wife in a matrimonial dispute. The complainant (client's estranged husband) had lodged the complaint only to prevent the lawyer from defending his wife, he added.
However, counsel representing the complainant argued that there was serious misconduct on the part of Dubey and that he should appear before the Disciplinary Committee.
Counsel representing the State Bar Council prayed for some time to respond. However, the Court rejected the request.
“The role of the Bar Council is limited. They should act as a neutral body and they cannot take side of any of the parties. Thus, they need not be heard on the merit of the case. The Bar council can only make submission if their jurisdiction is challenged,” it observed.
Dealing with the case on merits, the Court noted that both the complainant and the petitioner were adults.
It also noted that the allegation of there being a physical relationship was levelled by the husband, who was not on good terms with his wife.
“Surprisingly, the wife has not filed any complaint. If there was any sexual act or any misconduct committed by the petitioner-Advocate upon [her], [she] would have been the only person who could have lodged a complaint. In this case, it is the husband, who is adversary of [wife] has lodged the complaint,” the Court said.
It further noted that a summoning order in the criminal case filed against the petitioner by the complainant has already been quashed by the High Court.
Considering the overall facts, the Court found the complaint to be an act of vengeance against the lawyer and allowed his plea to quash the complaint.
“Consequently, Notice Ref. No. 1688 of 2023 dated 26.8.2023 in D.C. Enquiry No. 3/2023 is quashed. The complaint dated 5.9.2022, filed by respondent No. 3 along with entire proceeding started by the Disciplinary Committee, Jharkhand State Bar Council against the petitioner is also quashed,” the order reads.
Advocates Sheo Kr Singh and RN Chatterjee represented the petitioner.
Advocate Neha Bhardwaj represented the Bar Council. State Bar Council Chairman R Krishna was also present.
Advocate Rajesh Kumar represented the complainant.
|
vil Appeal No. 2 15 152 (NM) of 1986 etc.
From the Order dated 8.5.1984 of the Customs Excise and Gold Control/Appellate Tribunal, New Delhi in Appeal No. 2530/83 D & Cross objections 27/84, Order No. 258/84 D and Misc.
Order No. 67 84 D. A.K. Ganguli, P. Parmeswaran and Hemant Sharma for the Appellant.
Gobinda Mukhoty and P.N. Gupta for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal under section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ') against the judgment and order of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'the Tribunal ') dated 8th May, 1984.
The appeal is by the revenue.
The respondent, Decent Dyeing Co., was dyeing acrylic yarn on job charges.
The acrylic yarn was being received by the respondent from traders in the market or from the manufacturers of hosiery goods and were returning the same to them after completing the required process.
The respondent was paying duty at the rate of Rs. 10 per kg.
in terms of notification No. 125/75 CE dated 12th May, 1975 on the presumption that base yarn had discharged duty liability before it was received for dyeing.
A show cause notice requiring the respondent to show cause to the Assistant Collector of Central Excise as to why central excise duty amounting to Rs.4,300 at Rs.24 per Kg.
leviable on 180 kgs.
(as applicable to base yarn under tariff item 18(i) of the Central Excise Tariff) should not be demanded under rule 9(2) of the Central Excise Rules, 1944, was issued to the respondent.
The Assistant Collector of Central Excise directed the respondent to deposit an amount of Rs.4,300 on the basis 432 of the demand of duty at Rs.24 per kg.
on 180.00 kgs.
and directed the respondent to deposit the said amount under the proper head.
On appeal, the Appellate Collector of Central Excise confirmed the said demand.
There was an appeal and the Appellate Tribunal upheld the contention of the respondent.
The Appellate Tribunal found that the case related to a demand for payment of differential duty for the period May, 1976 to July, 1976 with reference to texturing of base acrylic yarn received by the respondent from the manufacturers of such base yarn.
The respondent, the Tribunal held, had cleared such textured yarn on payment of duty at Rs. 10 per kg.
claiming the benefit of notification No. 125/75.
The differential duty payment was Rs.24 per kg.
leviable on the base yarn.
,The respondent denied theft liability but it was upheld as mentioned 'hereinbefore.
It was contended on behalf of the appellant before the Tribunal.that duty on base yarn was payable by the manufacturers of the base yarn only and the burden of showing that the said duty had not been paid by the manufacturers was on the revenue.
The authorities had, however, held that the appellant was liable to.
pay the differential duty since the appellant had failed to prove the payment of duty on the base yarn and, therefore, the said orders were bad.
On the other hand, on behalf of the revenue, it was contended that it was for the respondent to prove that the duty had been paid on the base yarn and if the appellant was paying the duty of Rs. 10 per kg.
Only under notification relied upon and in the absence of proof of payment of duty, the base yarn, the orders of the lower authorities making the respondent liable to pay the duty were correctly passed.
The Tribunal found that the respond ent was not the manufacturer of base acrylic yarn.
The work done by the respondent on the base yarn was by way of textu rising the same.
In respect of the, same, the duty payable on the textured yarn produced out of base yarn is the duty for the time being leviable on the base yarn, if not al ready, paid plus Rs.20 per kg.
Under notification No. 125/75, the duty was reduced to the duty for the time being leviable on the base yarn, if not already paid, plus Rs. 10 per kg.
In this connection, it is relevant to refer to notifi cation No. 125/ 75.
The notification, which was issued under sub rule (1) of rule 8 of the Central Excise Rules, 1944, stated that the Government exempted the texturised yarn of the description specified in column (3) of the Table annexed thereto and falling under sub items of item No. 18 of the First Schedule to the Act as are specified in the corre sponding entries in column (2) of the said Table, from so much of the duty of 433 excise leviable thereon as is in excess of the duty speci fied in the corresponding entries in column (4) of the said Table.
The relevant portion of the Table annexed to the said notification reads as follows: section No. Sub Item No. Description Rate of duty 1.
(ii) Textured Yarn produced The duty for the out of base yarn time being leviable on the base yarn,if not already paid plus ten Rupees per kilogram.
Admittedly, the respondent had paid duty at Rs. 10 per kg.
and had been allowed to clear the goods.
The demand for differential duty by way of duty payable on the base yarn was not in dispute.
On the base yarn, the Tribunal held, the manufacturer was liable to pay duty only since purchasers of the base yarn from the market could naturally assume that duty on the base yarn would have been paid by the manufac turer before removal and that it was for the department to verify the fact of such payment and take action against the manufacturer if base duty had not been paid.
Under the relevant tariff item, the duty, as mentioned before, was fixed as the duty for the time being leviable on the base yarn, if not already paid, plus Rs.20 per kg.
(reduced to Rs. 10 per kg.
under the notification).
The notification does not change the basic position so far as base duty is concerned from the aforesaid stand.
The Tribunal held that the revenue was entitled to claim duty inclusive of the duty paid on base yarn only on proof that the duty on the base yarn had not been already paid, unless otherwise, in the normal course, the presumption inevitable, in view of the nature of the business, be that the duty on base yarn had been paid.
If that is so, that cannot be the responsibility or the burden of the respondent to prove that the duty on base yarn had already been paid.
It further appears that when the appeal was filed before the Collector, the respond ent had disclosed the names of the persons from whom they had received the yarn as also the names of the manufacturers enclosing the copies of the relevant record.
But even then the revenue had not chosen to verify these facts and the Collector (Appeals) had passed his order on the basis that it was for the respondent to prove the actual payment of base duty.
This approach is not proper approach.
It is not correct to state that the respondent alone should have special knowledge of the fact of payment of base duty and it was therefore for the respondent to prove the said fact.
In that view of the matter, the 434 Tribunal held in favour of the respondent.
We are of the opinion that the Tribunal was right.
Excise is a duty on manufacture.
The liability of pay ment of this duty is on the manufacturer.
The language of the notification referred to hereinbefore indicates that only the duty for the time being leviable on the base yarn, if not already paid plus ten rupees per kg.
was the liabili ty.
The description of manufacture was textured yarn pro duced out of base yarn.
We are clearly of the opinion that in view of the facts and the circumstances of the case, the Tribunal was right in the view it took.
In this connection, it is instructive to refer to rule 49 of the Central Excise Rules, 1944, which deals with duty chargeable only on the removal of the goods from the factory premises or from an approved place of storage.
Reference was also made before the Tribunal and our attention was also drawn to the deci sion of the Delhi High Court in Sulekh Ram & Sons vs Union of India & Ors., [1978] ELT J 525, where under rule 9 of the Central Excise Rules, it was held by the Delhi High Court that under excise system, no goods can be removed from the place of manufacturer without first paying the excise duty, therefore, a purchaser can presume that goods are duty paid.
It would be intolerable if the purchasers were required to ascertain whether excise duty had already been paid as they have no means of knowing it.
It has to be borne in mind that duty of excise is primarily a duty levied on a manufacturer or a producer in respect of the commodity manufactured or produced.
See the observations of Lord Simonds in Governor General in Council vs Province of Madras, 72 Indian Appeals 91.
In a situation of this nature, the Delhi High Court held that the processor was in the similar position as a purchas er of the goods.
In that view of the matter, we are of the opinion that the Tribunal was right in the view it took.
We have heard learned counsel for the appellant and considered the matter.
We find no merit in the appeal for the reasons mentioned above.
In that view of the matter, this appeal must fail and is accordingly dismissed without any order as to costs.
Appeals dismissed.
435 CIVIL APPEAL NOS.
214 1 42 (NM) OF 1986.
Collector of Central Excise, Chandigarh Versus 1.
M/s Navrang Dyeing Co. & Ors.
M/s Capital Dyeing Co This is an appeal under section 35L(b) of the Act from the judgment and order of the Tribunal dated 17th April, 1984.
For the reasons in civil Appeals Nos. 2151 52, these appeals must also fail and are accordingly dismissed without any order as to costs.
|
The Respondent Company was in the business of dyeing acrylic yarn received from traders and manufacturers of hosiery goods on job basis.
It was paying duty at the rate of Rs. 10 per K.G. in terms of Notification No. 125/75 CE dated 12.5.1975 on the presumption that base yarn had dis charged duty liability before it was received for dyeing.
A show cause notice under section 9(2) of the Central Excise Rules, 1944 was issued by the Assistant Collector of Central Excise demanding an amount of Rs.4,300 as central excise duty (C) Rs.24 per K.G. on 180 Kgs.
for the period May 1976 to July 1976.
The demand was resisted by the Respondent Company contending that duty on base yarn was payable by the Manufacturers and the burden of showing that this had not been paid by the Manufacturers was on the Revenue which was not accepted and on appeal by the Assessee the Appellate Collector of Central Excise confirmed the demand.
On further appeal, however, the Appellate Tribunal upheld the conten tion of the Respondent holding that the Manufacturer was liable to pay duty on the base yarn since purchasers could naturally assume that the duty on base yarn would have already been paid by the Manufacturer and that it was for the Department to verify the fact of such payment and take action against the manufacturer, if duty had not been paid particularly when in this case the Assessee had disclosed the names of persons/manufacturers from whom it had received the yarn for dyeing while the matter was pending before the Collector.
Dismissing the appeals preferred by the Revenue, this Court, HELD: Excise is a duty on manufacture.
The liability of payment of this duty is on the manufacturer.
The language of the Notification No. 125/75 dated 12th May 1975 indicates that only the duty for the time being leviable on the base yarn, if not already paid, plus ten rupees per kg.
was the liability.
The description of manufacture was textured yarn produced out of base yarn.
[434B] 431 It would be intolerable if the purchasers were required to ascertain whether excise duty had already been paid as they have no means of knowing it.
It has to be borne in mind that duty of excise is primarily a duty levied on a manufac turer or a producer in respect of the commodity manufactured or produced.
A processor is in the similar position as purchaser of the goods.
[434D E] Sulekh Ram & Sons vs Union of India & Ors., [1978] ELT J 525 and Governor General in Council vs Province of Madras, 72 Indian Appeals 91, referred to.
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The petitioners/accused 1 to 8 are knocking at the doors of
this Court in the subject petition calling in quest ion proceedings in
SC & ST (Spl.) Case No.24 of 2016 arising out of cr ime in Crime
No.146 of 2016 for offences punishable under Sectio ns 3(1)(10)
and (11) of the Scheduled Castes and Scheduled Trib es (Prevention
of Atrocities) Act, 1989 (‘the Act’ for short) and Sections 506, 341,
504, 143, 147, 148, 149, 323, 324 and 354(B) of the IPC and order
dated 10-01-2023 passed in the said case by the II Additional
District and Sessions Judge, Davangere, declining t o discharge the
petitioners from the array of accused.
2. Facts, in brief, adumbrated are as follows:-
The 2 nd respondent, wife of one Nagappa is the complainant .
It is alleged that special poojas are being held at Gadi
Chowdeshwari Temple (‘the Temple’ for short) on eve ry new moon
day and full moon day of the month and to witness t he said
occasion on 17-09-2016, the complainant and her hus band along
with others seek to visit Gadi Chowdeshwari Temple at 9.00 a.m.,
at which point in time the petitioners along with o thers are alleged
to have stopped the complainant and her family, ass aulted the
complainant and her husband including the child and have hurled
several abuses against them taking the name of the caste and
prevented them from entering the temple. It is ther eafter, the
complainant registers a complaint before the jurisd ictional police on
18-09-2016, the next day, alleging all the incident s that became
ingredients of offences punishable under Section 3( 1)(10) and (11)
of the Act and other offences under the IPC. This becomes a crime
in Crime No.146 of 2016 for the afore-mentioned off ences. The
police then conduct an investigation on the allegat ions made by the
complainant, records statements of witnesses includ ing eye
witnesses and draw up a charge sheet against the pe titioners for all
the aforesaid offences including an offence under S ection 354B of
the IPC. The moment the charge sheet is filed, the petitioners have
knocked at the doors of the learned Sessions Judge by filing an
application under Section 227 of the CrPC seeking t heir discharge
from the array of accused. The learned Sessions Ju dge, by a
detailed order, turns down the application on 10-01 -2022. It is
turning down of the application for discharge and f iling of the
charge sheet is what has driven the petitioners to this Court in the
subject petition.
3. Heard Sri P.S.Malipatil, learned counsel appear ing for the
petitioners, Smt. K.P. Yashodha, learned High Court Government
Pleader appearing for respondent No.1 and Sri S.G. Rajendra
Reddy, learned counsel appearing for respondent No. 2.
4. The learned counsel Sri P.S. Malipatil represen ting the
petitioner would vehemently contend that there are no ingredients
that would become the offence under Section 3(1)(10 ) and (11) of
the Act. He would further emphasize the fact that trial is now
sought to be conducted on the provisions which have undergone an
amendment with the corresponding provision being Se ction 3(1)(r)
and (s) of the Act. Therefore, it is vitiated on ac count of non-
application of mind. Taking this Court through the provisions of the
Act, he would contend that even if it is accepted t hat abuses have
been hurled, they have been hurled between the wall s of the
temple which would not become a public place or pla ce of public
view to attract the offence and therefore, seeks qu ashment of
entire proceedings contending that the 1 st petitioner has registered
a civil suit against the complainant and others. It is, therefore, the
impugned complaint is an act of wrecking vengeance on that score.
5. Per-contra, the learned High Court Government P leader
Smt. K.P. Yashodha would vehemently refute the subm issions
contending that the petitioners have, in fact, indu lged in all the
ingredients that would become offences under the Ac t. The incident
has taken place 7 years ago, pursuant to which, cha rge sheet was
also filed immediately. But, the petitioners have p referred the
present petition in the year 2023. She would furthe r contend that
there are seriously disputed questions of fact, whi ch would require
trial for the petitioners to come out clean.
6. The learned counsel representing the complainan t
Sri S.G. Rajendra Reddy would also toe the lines of the learned
High Court Government Pleader again taking this Cou rt through the
complaint and the charge sheet so filed to contend that it is a
matter of trial for the petitioners to come out cle an, as they are
prima facie guilty of hurling of abuses and physically assault ing the
complainant and others in an open place. In unison both the State
and the complainant would seek dismissal of the pet ition.
7. I have given my anxious consideration to the su bmissions
made by the respective learned counsel and have per used the
material on record.
8. Though the afore-narrated facts are not in disp ute, they
would require a slight reiteration. The petitioner s are persons
belonging to the same village where the complainant and her
husband reside and a civil suit is also pending bet ween the parties.
The temple i.e., Gadi Chowdeshwari is situated at V inayaka Camp
in Harihar Taluk where both the complainant and the accused reside
and special poojas are organized on every new moon day, and full
moon day of the month, at the Temple. The deity is worshipped by
one and all of the area.
9. On 17-09-2016 the complainant, her husband and their
child along with other villagers were stopped at th e stairs of the
temple preventing their entry into the temple by th e petitioners.
The blocking is on account of the reason that the c omplainant and
others in the group belonged to Scheduled Caste and their entry
into the Temple will make the Temple unholy. They w ere restrained
and when the complainant and her husband protested, they were
assaulted. This triggered registration of a compla int against the
petitioners who were all responsible for such actio n aforesaid. Since
the entire issue has triggered registration of comp laint, I deem it
appropriate to notice the complaint. It reads as fo llows:
(Emphasis added)
The complaint is that the complainant and her famil y were stopped
by the petitioners from entering the temple by call ing the name of
the caste of the complainant and also alleging that if they enter the
temple the deity would become unholy and therefore, they should
not even touch the stairs of the temple. When the c omplainant and
others protested and attempted to enter the Temple, the
complainant was assaulted by pushing her and her hu sband was
kicked and the child was also not spared. Therefore , it became a
crime in Crime No.146 of 2016 for the afore-quoted offences. The
registration of crime leads to investigation and th e investigation
leads to recording of several statements of persons who were
present at the alleged scene of crime. They were al l independent
eyewitnesses. Recording of statements leads to the Police filing
charge sheet against the present petitioners. Summa ry of the
charge sheet, as obtaining in Column No.17, is nece ssary to be
noticed and is therefore, extracted for the purpose of quick
reference. It reads as follows:
PÀ®A: 143, 147, 148, 323, 324, 341, 354(©), 504, 50 6, gÉ/« 149 L¦¹ ªÀÄvÀÄÛ
(Emphasis added)
The product of investigation i.e., the afore-quoted summary of
charge sheet clearly indicates every act of the pet itioners of hurling
of abuses, assault and in particular, against accus ed No.1 it is
alleged of holding the complainant, a lady by her n eck, touching her
body inappropriately, pushing her on the ground and kicking her
later. It is therefore, the offence under Section 3 54(B) of the IPC is
laid against the accused. If the complaint and the summary of the
charge sheet are read in tandem, it would depict ho rrendous acts
upon the petitioners particularly of the 1 st petitioner. A perusal at
the statements of witnesses recorded by the Investi gating Officer
including an eyewitness would clearly indicate the happening of the
offences. The complainant, in her Section 164 CrPC statement
before the learned Magistrate, has narrated the inc ident as is
narrated in the statement recorded under Section 16 1 of the CrPC.
Section 164 statement of the complainant reads as f ollows:-
(Emphasis added)
The petitioners notwithstanding the aforesaid findi ng in the charge
sheet and pretending to be innocent, seek their dis charge from the
array of accused. The concerned Court, appropriatel y recording
cogent reasons, has rejected the application. The same swan song
that is sung before the learned Sessions Judge in a n application is
repeated before this Court.
10. The learned counsel for the petitioners seeks t o contend
that there are no abuses hurled which would become ingredients of
offence under Section 3(1)(10) or (11) now Section 3(1)(r) & (s) of
the Act. At the time when the complaint was regist ered, the
amendment to the Act has just then come about. By t he time the
prosecution would become aware of it, in plethora o f cases charge
sheets are also filed under Section 3(1)(10) and (1 1) of the Act,
which would not mean that petitioners would get abs olved of the
offences merely because a provision which has under gone
amendment is quoted. Whatever crime that was made, an offence
under Section 3(1)(10) and (11) is renumbered as Se ction 3(1)(r)
& (s) of the Act under the amendment and the presen t existing
provision reads as follows:
“3. Punishments for offences of atrocities .—7[(1)
Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe,—
(r) intentionally insults or intimidates with inte nt to
humiliate a member of a Scheduled Caste or a
Scheduled Tribe in any place within public view;
(s) abuses any member of a Scheduled Caste or a
Scheduled Tribe by caste name in any place
within public view;”
Section 3(1) (r) makes it an offence against an acc used who with
an intention to insult a member belonging to Schedu led Caste or
Scheduled Tribe hurls abuses in public. Section 3(1 )(s) makes it an
offence against an accused if the abuses are hurled with an
intention to insult in a place of public view by ta king the name of
the caste. The abuses are to be hurled in a public place or a place
of public view.
11. On the bedrock of the ingredients of Section 3( 1)(r) and
(s) of the Act, if the facts narrated hereinabove a re noticed, it
would unmistakably emerge that ingredients of the s ection are
attracted, as the abuses are hurled against the com plainant and her
family only with an intention to insult as the alle gation is, since the
complainant and the family belonged to Scheduled Ca ste, they were
insulted and stopped from entering the Temple. It is not a case
where the petitioners did not know to which caste t he complainant
her family belonged to. They are fully aware of it . Being fully aware
of the caste of the complainant and her family, the y were stopped
from entering the temple only because they belonged to the said
caste and abuses were hurled outside the temple. If this cannot
construed to be a place of public view or even a pu blic place, I fail
to understand what else could be. Therefore, all th e necessary
ingredients of Section 3(1)(r) and (s) of the Act a re clearly found in
the case at hand. The offences under the Act are, therefore,
appropriately laid against the petitioners.
12. The learned counsel for the petitioners has st renuously
contended by taking this Court through several judg ments rendered
by this Court in the cases of (i) P.S. SRIDHAR v. STATE OF
that the petitioners cannot be charged with the off ences so alleged.
These judgments are distinguishable on the facts ob taining in those
cases without much ado . A clear finding is rendered in all the
aforesaid judgments that there were no ingredients of Section
3(1)(r) and (s) of the Act present therein and ther e was no
intention even to hurl abuses against members belon ging to
Scheduled Castes or Scheduled Tribes. The case at h and is
completely different than the facts obtaining in th e aforesaid cases.
The abuses are hurled and hurled in public which is viewed by
1Crl.P.No.3014 of 2018 decided on 18 th November, 2021
2Crl.P.No.101343 of 2020 decided on 15 th March, 2022
3W.P.No.5316 of 2020 decided on 8 th July 2022
4Crl.P.100428 of 2021 decided on 17 th October, 2022 .
several public as it was outside the doors of the T emple and the
Temple is, trite, a public place. Therefore, the ch allenge to the
offences under the Atrocities Act so laid tumbles d own.
13. What remains are the offences under the IPC. T he charge
sheet is filed for offences under Sections 506, 341 , 504, 143, 147,
148, 149, 323, 324 and 354(B) of the IPC. If the i ngredients of
these offices are considered on the bedrock of the complaint and
the charge sheet, they are all met. The 1 st petitioner is alleged to
have touched the body of the complainant inappropri ately, kicked,
pushed her down and again kicked. If this cannot fa ll as the
ingredients of Section 354(B) or Section 323 or eve n Section 324 of
the IPC, I again fail to understand what it could b e. All the other
offences are incidental to the ingredients of the a foresaid offences.
The plea of the petitioners that it is an act of wr ecking vengeance
for having filed a civil suit is contrary to facts narrated in the
complaint or the summary of the charge sheet. If, n otwithstanding
the aforesaid facts, this Court would interfere in a case of this
nature and obliterate the proceedings against the p etitioners, it
would be putting a premium on the alleged acts. Th ere are scores
and scores of cases which are entertained even at t he crime stage
and quashed by this Court in exercise of its jurisd iction under
Section 482 of the Cr.P.C., holding that searching for a case where
a member belonging to scheduled caste or scheduled tribe has
actually suffered abuses was like searching for a needle in the
haystack . The case at hand is clearly a needle in the haystack , as
the abuses and the allegations are all prima facie found and
therefore, no interference can be called for.
14. It is rather unfortunate that despite constitut ional
abolition of any form of untouchability, it still r emains and persists
in rural areas of the nation. Although temples are seen to be
symbols of unity and inclusivity, denial of rights of temple entry and
worship, to persons belonging to scheduled castes a nd scheduled
tribes, still looms large. This attitude of the pe titioners is
undoubtedly regressive for they have denied entry i nto a temple,
only on the score that the complainant and her fami ly belong to
scheduled caste. This discrimination should stop, and stop
forthwith. The fact that it is still prevailing sh ocks the conscience of
the Court. Human beings are to be treated as human beings.
Deity in the temple cannot even be imagined to be b elonging to a
few. Worshipping of the deity, by entering into the temple, is to be
given to one and all. Any kind of bigotry or discr imination is
unacceptable. Trial in such cases cannot be interd icted. There are
complete ingredients of the offences so alleged pre sent in the case
at hand.
15. For the aforesaid reasons, I pass the followin g:
(i) The petition lacking in merit, stands rejecte d.
(ii) Since the complaint is of the year 2016 and we are
close to the year 2024, eight years have passed by.
Therefore, the concerned Court shall make an
endeavour to complete proceedings as expeditiously as
possible and at any rate within six months from the
date of the order. It is needless to observe that the
parties to the lis shall cooperate in the conclusion of the
proceedings.
It is made clear that the observations made in the course of
the order are only for the purpose of consideration of the case
under Section 482 of the Cr.P.C. and the same shall not bind or
influence further proceedings in any manner.
Consequently, I.A.No.1 of 2023 also stands dispose d.
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The Karnataka High Court recently refused to close a criminal case against persons accused of blocking the entry of a Scheduled Caste (SC) family into a temple and attacking them [Pandurangabhat and ors v. State and anr.]
Justice M Nagaprasanna underscored that a deity in a temple does not belong to a select few and that any kind of untouchability, bigotry or discrimination is unacceptable.
"Deity in the temple cannot even be imagined to be belonging to a few. Worshipping of the deity, by entering into the temple, is to be given to one and all. Any kind of bigotry or discrimination is unacceptable. Trial in such cases cannot be interdicted," the Court said.
The Court, therefore, refused to halt criminal proceedings against the eight persons accused of preventing the SC family from entering the Gadi Chowdeshwari Temple on the ground that their entry would make the temple "unholy".
The accused were also alleged to have verbally abused and attacked the family, which included a woman, her husband and their child.
"It is rather unfortunate that despite constitutional abolition of any form of untouchability, it still remains and persists in rural areas of the nation. Although temples are seen to be symbols of unity and inclusivity, denial of rights of temple entry and worship, to persons belonging to scheduled castes and scheduled tribes, still looms large," the Court observed after examining the allegations.
The Court said that the attitude of the accused appeared to be regressive since they had allegedly denied entry to a temple solely because the family belonged to a scheduled caste.
"This discrimination should stop and stop forthwith. The fact that it is still prevailing shocks the conscience of the Court. Human beings are to be treated as human beings," the Court observed.
Notably, the Court also laid down that a "temple" is a public place for the purpose of invoking the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act).
Abuse of a person belonging to a Scheduled Caste near a temple would, therefore, attract Section 3 of the SC/ST Act, the Court held.
"The abuses are hurled and hurled in public which is viewed by several public as it was outside the doors of the Temple and the Temple is, trite, a public place. Therefore, the challenge to the offences under the Atrocities Act so laid tumbles down," the Court said.
The Court was dealing with a case where the complainant had alleged that in 2016, she and her family were attacked and verbally abused through derogatory references to their caste when they sought to visit the Gadi Chowdeshwari temple.
A criminal complaint was lodged against eight persons. The complaint cited charges under Sections 3(1)(10) and (11) of the SC/ST Act, along with various sections of the Indian Penal Code (IPC).
The accused, however, asserted that no offence was made out. Notably, they argued that even if any abuse took place, it happened within the temple, which is not a "public place" or a "place of public view." Therefore, the SC/ST Act would not be attracted, they argued.
The Court, however, disagreed.
"Being fully aware of the caste of the complainant and her family, they were stopped from entering the temple only because they belonged to the said caste and abuses were hurled outside the temple. If this cannot construed to be a place of public view or even a public place, I fail to understand what else could be," the Court said.
The Court further opined that if the complaint and the charge sheet were read together, it would depict horrendous acts by the accused.
The Court, therefore, dismissed the plea of the accused paving the way for the trial against them to continue.
Advocates Satish MS and Malipatil PS appeared for the petitioners (accused).
Government pleader Yashodha KP appeared for State government.
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( 1 ) cra 108.21
with Criminal Application No.1993/2021
Parmeshwar s/o Muktiram Dhage
Age: 36 years, Occ: Agri,
R/o Partur, Tal Partur, Dist. Jalna ..Applicant
Versus
1.The State of Maharashtra,
through P .I., Partur Police Station,
Jalna.
2.Minakshi W/o Umesh Puri
Age: 25 years, Occu: Household,
R/o Dixit Galli, Partur, Tq. Partur,
Dist. Jalna. ..Respondents
Advocate for Applicant : Mr. Pratik Bhosle
Advocate/APP for Respondent-State: Mr. S.W . Munde
Advocate for R/2: Vishal A. Bagal
RESERVED ON: 29th October, 2021
PRONOUNCED ON: 21st December, 2021
Being aggrieved by the judgment and order passed by the learned
Additional Sessions Judge-3, Jalna in Criminal Appeal No.53/2015 dated 21st
August, 2021 thereby confirming the judgment and order passed by the
learned J.M.F .C., Partur dated 25th June, 2015 in RCC No.141/2014 thereby
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( 2 ) cra 108.21
convicting the applicant of the offence punishable under Section 451 of the
I.P .C., sentencing him to suffer simple imprisonment for one year and to pay
fine of Rs.2,000/- in default to suffer simple imprisonment for two months, for
the offence punishable under Section 451 of the I.P .C. and to suffer rigorous
imprisonment for one year and to pay fine of Rs.3,000/- in default to suffer
simple imprisonment for two months of the offence punishable under Section
2.Facts in brief are that victim lodged the report on 5th July, 2014
alleging therein that on 4th July, 2014 she and her grand mother in law were
the only persons in their house as husband of the victim had gone to village
Pokharni. Applicant/accused lives in the house adjacent to the house of the
victim. On 4th July, 2014 at about 8.00 pm, applicant had been to the house
of the victim and inquired as to when the husband of the victim would be
returning. Victim answered that her husband would not be returning in the
night. It is further alleged that on 4th July, 2014, victim had closed the main
door of her Wada and without bolting the door from inside she and her grand
mother in law went off to sleep. At about 11.00 pm the victim sensed that
someone was touching her feet. Therefore, the victim woke up and found the
accused/applicant sitting near her feet on her bed. Victim shouted because of
which her grand mother in law woke up and she also raised shouts.
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Thereafter, the applicant ran away. Neighbours gathered on hearing shouts.
Thereafter, the victim informed her husband telephonically about the incident.
The next day morning her husband returned and thereafter she lodged the
police report against the accused.
3.Charge was framed and read over and explained to the accused.
He pleaded not guilty to it and claimed to be tried. His defence is of total
denial. It is also his defence that he was not present at the spot of the
incident.
4.I have heard Shri Bhosle learned counsel for the applicant, Shri
Munde learned APP for the State and Shri Bagal learned counsel for
respondent no.2.
5.Shri Bhosle submits that applicant was not present at the spot of
the incident. According to Shri Bhosle applicant resides at Jalna. Therefore,
applicant was not present at the spot of the incident. He further submits that
door was not bolted from inside. When informant and her grand mother in
law were alone in the house, normally in such situations ladies bolt the door
from inside. In the case at hand, the informant did not bolt the door from
inside which indicates that the applicant had entered the house was with
consent of the informant/victim. He submitted that there is delay of almost
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( 4 ) cra 108.21
12 hours in lodging the FIR for which no explanation is forthcoming. He
submitted that considering all these aspects both the Courts below have
committed grave error in convicting the accused. He placed reliance on the
cases of Hemraj s/o Fulchand Patle V/s. State of Maharashtra reported in
2018 (3) Mh.L.J. (Cri.) 656 and Kailash s/o Somaji Khodkar reported in 2020
6.Learned APP Shri Munde and Shri Bagal supported the judgment
of the Trial Court and the Appellate Court.
7.So far as plea of alibi is concerned, it has not been established by
the applicant. He was seen by the victim and her grand mother in law.
Applicant did not produce any evidence to indicate that he was employed at
Jalna. Therefore, the learned Trial Court and the learned Appellate Court
rightly discarded his plea of alibi.
8.So far as the incident is concerned, victim has deposed about the
incident which is corroborated by her grand mother in law. Victim has stated
that at 11.00 pm when she and her grand mother in law were sleeping, victim
sensed that someone was touching her feet. When she woke up she found the
applicant sitting on her cot at her feet. This version of the victim is
corroborated by her grand mother in law. Learned counsel Shri Bhosle
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( 5 ) cra 108.21
submitted that he had only touched her feet and did not have any sexual
intent in touching her feet. For appreciating his submissions, Section 354 of
the I.P .C. will have to be looked into. Section 354 of the I.P .C. is as under:
S.354Assault or criminal force to woman with intent to outrage
her modesty.—Whoever assaults or uses criminal force to any
woman, intending to outrage or knowing it to be likely that he will
thereby outrage her modesty, shall be punished with imprisonment
of either description for a term which may extend to two years, or
with fne, or with both.
9.Word ‘modesty’ has not been defined in Indian Penal Code. In the
case of Mrs. Rupan Deol Bajaj and Anr V/s. K.P .S. Gill and Anr. reported in AIR
1996 SUPREME COURT 309 the Hon’ble Apex Court has defined word
‘modesty’ as under:
“15. In State of Punjab v. Maor Singh, AIR 1967 SC 63, a question
arose whether a female child of seven and a half months could be
said to be possessed of `modesty' which could be outraged. In
answering the above question Mudholkar J., who along with
Bachawat J. spoke for the majority, held that when any act done
to or in the presence of a woman is clearly suggestive of sex
according to the common notions of mankind that must fall
within the mischief of Section 354, IPC. Needless to say, the
`common notions of mankind' referred to by the learned Judge
have to be gauged by contemporary societal standards. The other
learned Judge (Bachawat J.) observed that the essence of a
woman's modesty is her sex and from her very birth she possesses
the modesty which is the attribute of her sex. From the above
dictionary meaning of `modesty' and the interpretation given to
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( 6 ) cra 108.21
that word by this Court in Major Singh's case (supra) it appears to
us that the ultimate test for ascertaining whether modesty has
been outraged is, is the action of the ofender such as could be
perceived as one which is capable of shocking the sense of
decency of a woman.
10.When this test is applied to the facts of the instant case, it is clear
that the act of the applicant was capable of shocking sense decency of any
woman. In the case at hand, applicant was sitting at the feet of the victim and
had touched her feet and was sitting on her cot. This behaviour smacks of
sexual intent. Otherwise, there was no reason for the applicant to be in the
house of the victim at such an odd hour of the night. When a query was put
to the learned counsel Shri Bhosle as to why the applicant was present in the
house of the informant/victim at dead hours of the night, he could not give
any answer much less any satisfactory answer. Moreover, touching any part of
the body of a woman without her consent that too in the dead hour of the
night by a stranger amounts to violation of modesty of a woman. The
applicant did not enter the house of the victim with any sublime motive. He
had ensured in the evening from the victim that her husband would not be
present in the house in the night. Therefore, the applicant ventured to enter
the house. This clearly indicates that the applicant had gone there with sexual
intent and violated the modesty of the informant. Therefore, learned Trial
Court did not commit any error in holding that the applicant had molested the
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( 7 ) cra 108.21
victim/informant.
11.Learned counsel Shri Bhosle submitted that the house was not
bolted from inside. For this the victim has given explanation that the bolt of
the door was not functioning properly. This answers the question of the
applicant as to why the door was not bolted from inside. In the case of
Hemraj s/o Fulchand Patle (supra) the facts are totally different. In that case,
husband was away from the house in the night as there was recitation of
kirtan. When he came home he found that his wife and the accused were
having sexual intercourse. According to the wife, she had raised shouts but
they were not heard because of recitation of kirtan. Husband had deposed
that he had come to the house not because of hearing the shouts of wife but
for easing himself. On the basis of these facts a Single Judge of this Court
held as under:
12. The prosecutrix in her cross-examination has admitted that
door to her house on that day was open, although she would
keep the door closed. The prosecutrix has not explained as to
why on the day of incident, the door to her room was not closed
by her. Added to it, are those odd sounds heard by husband of
the prosecutrix as well as her sister-in-law emanating from the
room of the prosecutrix. To my mind, these facts are sufficient
indicators of the possibility of consensual sexual intercourse
between the prosecutrix and the appellant. This inference in the
present case is further strengthened by the fact that the husband
of the prosecutrix was out of his house as he had gone to attend
kirtan being held in the night and that it was not expected of
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( 8 ) cra 108.21
him to come back home so early. Usually, kirtans are held for
the entire night. The husband of the prosecutrix also states that
as he wanted to ease himself, he visited his house. It would
mean that the husband of the prosecutrix had no intention to
come back home for the purpose of sleeping. Thus, the visit of
the husband of prosecutrix to the house was by way of chance
only and it appears, it was an unexpected visit from the view
point of the prosecutrix. As stated earlier, the prosecutrix also
does not explain as to why did she not close the door in that
night though usually she would keep it closed. So, the strange
conduct of the prosecutrix shown by keeping the door open
especially when her husband was out of the house and not
raising the shouts for help coupled with material
inconsistencies and coming of unusual sound from the room of
the prosecutrix during presence of appellant in her room, all
create a large circle of doubt over the version of prosecutrix
giving rise to a strong possibility of presence of consent of the
prosecutrix in the whole incident. There is no other evidence,
which has ruled out consent of the prosecutrix.
12.This is not the factual position in the case at hand. Husband of
the victim was away from home. Applicant ensured that husband of the
victim would not be there in the house in the night and therefore he entered
the house and touched the feet of the victim who was sleeping. Therefore, the
case of Hemraj s/o Fulchand Patle (supra) is not applicable to the case in
hand.
13.In the case of Kailash s/o Somaji Khodkar , it has been observed as
under:
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( 9 ) cra 108.21
26. Incident in question occurred at morning hours i.e. 9:30 of
15.9.2006. Printed First Information Report (Exhibit 12) shows
that incident was reported at 19:00 hours. In cross- examination,
victim (PW1) admitted that one can reach to Paoni Police
Station within 10 minutes and Nilaj-Paoni Road is having traffic
around the clock. A serious incident of gaining unlawful entry
inside house and, thereafter, outraging modesty of a married
woman occurred, which is a serious offence. Victim runs a hotel.
In spite of the said, till 19:00 hours report was not lodged.
Though it was open for the prosecution to offer plausible
explanation for the delay, no such explanation is coming on
record. Further, report (Exhibit 11) is written and the said is not
an oral report. A suggestion was made to victim, during her
cross-examination, that report was lodged only after consultation
of a lawyer at Paoni. In my view, lodging of report belatedly has
its own impact on the prosecution case.
14.In the case at hand, victim has given the explanation for lodging
the report late. It is pertinent to note that the incident took place at 11.00
pm. Only the victim and her grand mother in law were present in the house.
Therefore, the conduct of the victim in waiting for the husband’s arrival and
then lodging the report cannot be faulted with. In this view of the matter, I do
not find any infirmijnty in the appreciation made by the learned Trial Court
and the learned Appellate Court. Revision is, therefore, devoid of any
substance. Hence, it is dismissed. Criminal Application is also dismissed.
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The Aurangabad Bench of the Bombay High Court recently held that touching any part of a woman’s body without her consent, specially in the dead of the night by a stranger, amounts to outraging her modesty punishable under Section 354 of the Indian Penal Code(IPC) [Parmeshwar Dhage v. State of Maharashtra].
Justice MG Sewlikar held so in an appeal filed by one Parmeshwar Dhage sentenced to a year in prison by the trial court for touching the feet of a woman while she was sleeping.
“Touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger amounts to violation of modesty of a woman," the Court said.
It also placed reliance on precedents to hold that the ultimate test for ascertaining whether the modesty of a woman has been outraged is whether an act could be perceived as “one which is capable of shocking the sense of decency of a woman."
In the instant case, the Court noted that the accused was sitting at the feet of the victim on her cot and had touched her feet.
“This behaviour smacks of sexual intent. Otherwise, there was no reason for the accused to be in the house of the victim at such an odd hour of the night...The accused was capable of shocking sense decency of any woman,” the order stated.
The complainant’s case was that on July 4, she and her grandmother-in-law were at home while her husband was out of town. The accused, who was her neighbour, had come to her house at around 8 pm and had enquired about her husband. At this point, the complainant informed that her husband was not returning for the night.
The complainant later went to sleep after closing the main door but without bolting the door to her room.
At about 11 pm the complainant sensed that someone was touching her feet. When she woke up, she found the accused sitting by her feet and she screamed. This woke her grandmother-in-law while the accused ran away in the commotion.
After her husband returned the next morning, she filed a complaint against the accused.
During the course of the trial, the defence was in total denial. The accused claimed that he was not present at the spot of the incident.
The defence pleaded that since the woman and her grandmother-in-law were alone in the house, in normal circumstances the ladies would bolt the door from inside and since they did not, it indicated that the accused entered with consent.
Finally, it was contended that the accused had merely tried to touch the feet of the woman and there was no sexual intent.
The trial court convicted him for offences under Sections 451 (house trespass) and 354A (sexual harassment) of IPC and sentenced him to one year imprisonment.
On enquiry by the Court, the defence was unable to give a satisfactory answer as to why the accused was present in the house of the woman in the middle of the night.
The Court noted that the accused had learnt in the evening from the victim that her husband would not be present in the house in the night.
“This clearly indicated that the accused had gone there with sexual intent and violated the modesty of the informant. Therefore, learned trial court did not commit any error in holding that the accused had molested the woman," the Court.
The Court also accepted the reason for not bolting the door to her room which the complainant claimed was not working.
In view of the observations, the High Court rejected the appeal and revision and refused to interfere with the lower court order.
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1 FULL TEXT OF THE SPEECH DELIVERED BY HON’BLE THE CHIEF JUSTICE OF INDIA SHRI JUSTICE N V RAMANA AT THE FIFTH CONVOCATION OF HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR, CHHATTISGARH 31 JULY 2022 This university of law has been named after one of the greatest legal luminaries of the past century, Justice Mohammed Hidayatullah. He was called to the bar from Lincoln’s Inn at the young age of 25, in 1930. In his time, he was the youngest Advocate General, the youngest Chief Justice of a High Court and the youngest Judge of the Supreme Court of India. He also has the unique distinction of being the Vice- President, as well as the acting President of India. He was not only an eminent jurist, but was also an outstanding statesman. He took active interest in the development of legal education in India. Even after his retirement, he continued his pursuit to improve the standards of teaching in law schools as the chairperson of the Legal Education Committee of the Bar Council of India. He was known to be a thorough gentleman. He dedicated his life to the service of the Constitution and the people of India. For times to come, he will not only be remembered as a crusader of liberties, but also as a strong independent voice of the Indian judicial system. Before I begin my address, I would like to congratulate the students, on their graduation today. It is a moment of pride, not only for the university, but for you, your parents, faculty, and each and every person, who was a part of shaping your life so far. I congratulate and extend my best wishes to everyone. Dear young friends, today marks an important day in your life and a significant milestone in your journey. It marks the culmination of a phase of learning. Now you are deemed ready, as worthy citizens, to contribute to the nation and the world at large. Let me also congratulate you on becoming part of an immensely challenging, intellectually stimulating and incredibly satisfying profession. I understand the pressures of graduating. The legal profession has not completely emerged out of old days. However, the importance of pedigree, family history and hereditary legal practice is slowly fading out. Youngsters, who are first generation lawyers, are shinning and are reaching greater heights in the profession through their sheer hard work and commitment. Do not think in traditional ways. Start thinking out of box. Knowledge and information are the biggest assets one can possess. My experience of life has taught me that hard work never goes waste. Someday you shall be rewarded for the same. Speaking from my experience, the fundamentals of law that I learnt as a student and as a young professional has helped to
2 shape my career. Currently, you have a lot a time in your hand. Always use the same to nurture your mind. The best lawyers are the ones who are well acquainted with history, politics, economics and other social and scientific developments around them. A lawyer must be capable of dealing with a simple civil suit as well as disputes relating to intellectual property right, from issues of constitutional importance to IT related crimes. A lawyer is not a mere representative before the court. Simply knowing a statute will not help you in the long run. Your clients may expect you to be aware about different facets of business, society or even sports. A lawyer needs to be an all-rounder, a leader and a changemaker. With your knowledge and enthusiasm, you can ideate, innovate and thereby improve existing methods, systems and the society as a whole. Remember that new ways of thinking may invite criticism. But, do not allow such criticism to bother you. If you believe in something and work hard to achieve it, you can affect meaningful change. If you are strong willed, no force on earth can stop you from achieving your goals. Some of your friends have proved this by achieving laurels, in spite of some physical limitations. They are your role models. You should have a constructive attitude and should attempt to find solutions. You must seize the opportunities and create opportunities for others. This generation of youngsters are taking the world by revolution. Be it the climate crisis or violation of human rights, they are a united force across the world. Truly, the technological revolution has made each one of us “global citizens”. It is time for all of you to join the revolution. It is in this context that I want to speak about role of youth in achieving social transformation through the rule of law and the Constitution. The sad reality is that the supreme document which defines the aspirations of modern independent India is confined to the knowledge of law students, legal practitioners, and a very small segment of the Indian population. The Constitution is meant for every citizen. Every individual must be made aware of their rights and duties. We have collective duty to promote the constitutional culture and raise awareness. It should be your endeavour to explain the Constitutional provisions in simpler terms and assimilate its ethos into the minds of the people. A constitutional republic shall only thrive when its citizens are aware of what their Constitution envisages. As law graduates, you have been trained to think about rights and duties. Law school education must turn graduates into social engineers, because the law is an instrument of social change. Law graduates must inculcate analytical skills, critical evaluation, and creative solutions to social and legal problems.
3 Multiple avenues are available to a legal professional in today’s world. This calls for a broad-based education with a focus on developing the skills of students. Law Students must be able to explain their point clearly and precisely, with flawless communication skills. They must maintain integrity of character and be prepared to work under stressful and difficult circumstances. Only those who work with dedication will reach the zenith in the legal profession. You have been trained to weigh the equities. In the world of rising inequities, we need your help in bridging the gaps. You must be active members of your communities and be the voice for the voiceless. You must be the beacon of social justice. I would also like to take this opportunity to request all of you to use the skills you have learnt in the University to further the goals of justice. The most vulnerable are often the victims of human rights violations, either by the State or by anti-social elements. As young advocates, you are best placed to strongly oppose the same through legal action. Society needs your able assistance in the dispensation of inexpensive justice to the needy. Legal Aid services in India are the largest in the world. We need young talented minds to steer the movement in the right direction. Go to the people who cannot reach you. Understand the prevailing social issues, raise concerns and stand up for them. Educate people to secure their rights and provide legal guidance whenever you can. Now that you are entering the profession, I urge you all to take up as many pro-bono cases as possible. In his autobiography, Justice Hidayatullah states that as a young barrister, getting clients was difficult and slow. For every case that he got paid, he was taking up three free cases. His practice was built slowly but steadily. Through his hard work, he established a credible reputation in the bar and the society. There cannot be any better example to emulate in your profession. In your chase for material wealth, do not forget the power of change that lies within you. You must have a vision of the world you want to live in. But a vision is not enough. You must create it by standing up and fighting for it. In this journey, I urge you to be well informed and aware. Never let misinformation and deceit, cloud your mind and thought. Study the struggles of history to build a better future. When the youth become socially and politically aware, the basic and real issues of education, food, clothing, healthcare, shelter, etc., will come into focus in the national discourse. It is the force of your ideas that will bring a change. It is upon you to shape the future of this country. The opinions you write, policies you draft, pleadings and submissions that you file in Court and the ethics that you hold dear will have a far-reaching effect. Numerous people will look up to you and try to learn from your conduct. Be mindful about the consequences of your decisions.
4 Remember you are the heroes of your own story. Be careful and mindful to live your life well. As the beloved children’s author, Dr. Seuss, once said, “You have brains in your head. You have feet in your shoes. You can steer yourself any direction you choose. You're on your own. And you know what you know. And You are the one who'll decide where to go...” Hope is eternal. I seek your leave with a heart filled with hope. I heartily congratulate those who distinguished themselves with special laurels today. I want to tell the rest of you that your contributions to the profession and the society are going to be no less important. If I may add, I also belonged to your league at the time of my graduation. Once again, I congratulate each of you and wish you success in all your future endeavors. God bless you. Have a happy and meaningful life ahead. Before I conclude, I must compliment Hon’ble Chief Minister Shri Bhupesh Baghel and the Government of Chhattisgarh. From what I get to hear from the Chief Justice and other Judges, the Government of Chhattisgarh is taking ample care of the infrastructural and budgetary needs of the judicial community in the State. I hope this trend continues and the State of Chhatisgarh emerges as one of the role models in providing best infrastructure to the judiciary. I also thank Hon’ble Chief Minister for actively supporting the growth and development of legal education in Chhattisgarh. I wish him the best in his endeavours to provide good governance to the people of Chhattisgarh. Brother Justice Abdul Nazeer with his rich experience from the Bar and the Bench is providing excellent guidance to this University. This University is fortunate to have Brother Nazeer as its Visitor. Brother Justice M. R. Shah as a Member of the Executive Council and Sister B. V. Nagaratna as a Member of General Council are adding huge value to this prestigious University. The Chancellor of the University, Chief Justice Shri Arup Kumar Goswami, is one of the most dedicated and hardworking judges. He is known for bringing in progressive changes. Presence of Brother Justice Prashant Kumar Mishra in the General Council provides much needed continuity in administration of the University. Dr V C Vivekanandan, Vice-Chancellor of HNLU, is known for his academic excellence. I hope he continue to steer the university and the students on a progressive path. I wish the entire team of HNLU all success in their endeavours towards achieving academic excellence. Thank you.
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The Constitution of India is meant for every citizen and every individual must be made aware of their rights and duties, the Chief Justice of India (CJI) NV Ramana said on Sunday.
A constitutional republic shall only thrive when its citizens are aware of what their Constitution lays down and it is the collective duty of legal fraternity to promote the constitutional culture and raise awareness, he added.
He, however, lamented that the knowledge of the Constitution has been limited to law students, legal practitioners, and a very small segment of the Indian population.
"The sad reality is that the supreme document which defines the aspirations of modern independent India is confined to the knowledge of law students, legal practitioners, and a very small segment of the Indian population," he stated.
He was speaking at the 5th Convocation ceremony at the Hidayatullah National Law University (HNLU), Raipur.
In his address, CJI Ramana urged the newly enrolled law graduates to endeavor to explain constitutional provisions in simpler terms to the common citizens so as to enable them to assimilate its ethos.
"You have been trained to weigh the equities. In the world of rising inequities, we need your help in bridging the gaps. You must be active members of your communities and be the voice for the voiceless. You must be the beacon of social justice. I would also like to take this opportunity to request all of you to use the skills you have learnt in the University to further the goals of justice. The most vulnerable are often the victims of human rights violations, either by the State or by anti-social elements. As young advocates, you are best placed to strongly oppose the same through legal action," he added.
CJI Ramana further asked the law graduates to take up as many pro-bono cases as possible in their early years of practice.
"Now that you are entering the profession, I urge you all to take up as many pro-bono cases as possible. In his autobiography, Justice Hidayatullah states that as a young barrister, getting clients was difficult and slow. For every case that he got paid, he was taking up three free cases. His practice was built slowly but steadily. Through his hard work, he established a credible reputation in the bar and the society. There cannot be any better example to emulate in your profession," CJI said.
The CJI further told the law graduates that in their race for material wealth, they should not forget the power of change that lies within them and must never let any misinformation and deceit, cloud their mind and thought.
"Do not think in traditional ways. Start thinking out of box. Knowledge and information are the biggest assets one can possess," he said.
Such innovative thinking may invite criticism but they should not be bothered by such criticism, the CJI added.
He also had a word of advice for them.
"A lawyer must be capable of dealing with a simple civil suit as well as disputes relating to intellectual property right, from issues of constitutional importance to IT related crimes. Your clients may expect you to be aware about different facets of business, society or even sports. A lawyer needs to be an allrounder, a leader and a changemaker," the CJI stated.
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Through: Mr. KS Choudhary, Adv.
versus
Through: Mr. Ajay Vikram Singh, APP
Mr. Shilankar Shakya, Adv. for R -2-4
SI Satyapreet, PS Jaitpur
1. This is a petition filed seeking quashing of the FIR No. 416/2017 dated
12.08.2017 registered at PS Jaitpur Section 323/506/509/354/354B/34
IPC.
2. As per the FIR, the complaint was predicated on a fight over petting
pigs. The altercation ensued between the parties which resulted in the
present FIR.
3. The nature of injuries suffered by the complainant are opined to be
„simple‟ in nature.
4. During the pendency of the proceedings, the parties have arrived at a
settlement dated 12.11.2022, pursuant to which the complainant has
settled the dispute w ith the petitioners and the respondents have
decided to put a quietus to the disputes and to assist in quashing of the
present FIR and does not wish to pursue the matter any further.
5. The petitioners are present in Court and have been identified by Mr. KS
Choudhary, learned counsel.
6. The respondents are also present in Court and have been identified by
SI Satyapreet, PS Jaitpur.
7. The parties state that they have arrived at the above said settlement out
of their own free will and without any undue influence, threat, pressure
or coercion.
8. The respondents state that they have no objection if the present FIR is
quashed.
9. However, in the present case, the FIR is of the year 2017. Not only the
Police have investigated the entire matter but also have filed the charge
sheet. Considerable time of the police has also been wasted on issues
which should not have escalated to this extent. In addition, valuable
judicial time has also been wasted. Even though the parties have settled
their disputes and quashing will put a qui etus to the matter, the
petitioners must do some social good.
10. Since the petitioners belong to a humble background, I am refraining
from imposing any financial costs on the petitioners.
11. However, each of the petitioners shall plant 10 trees in their localit y
and will look after them with all proper care for a further period of 10
years. The trees shall be planted near their residence in consultation
with the I.O. concerned, who shall inform about the place for planting
the same in consultation with the conce rned Horticulture Department of
12. The needful shall be done within a period of 4 weeks from today.
13. The yearly status report of the plantation will be filed by the petitioners
with photographs. The first status report shall be filed by the I.O.
conc erned within 6 weeks from today.
14. Subject to the directions made hereinabove, the FIR No. 416/2017
dated 12.08.2017 registered at PS Jaitpur Section 323/ 506/ 509/ 354/
354B/ 34 IPC and all consequential proceedings are hereby quashed.
15. List for compliance o n 15.05.2023.
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The Delhi High Court recently ordered a group of people to plant ten trees and look after them for a decade while quashing a first information report (FIR) registered against them.
Justice Jasmeet Singh said that the trees shall be planted near their residence in consultation with the investigating officer concerned.
The officer will inform the petitioners about the place for planting the trees in consultation with the Horticulture Department of the Municipal Corporation of Delhi (MCD).
"The yearly status report of the plantation will be filed by the petitioners with photographs. The first status report shall be filed by the I.O. concerned within 6 weeks from today," the Court ordered.
The FIR was registered against a bunch of people in the year 2017 after a fight over petting pigs.
The Delhi Police slapped several offences against the accused (petitioners) including the offences of outraging modesty of a woman, using criminal force with the intention of disrobing or compelling a woman to be naked, and criminal intimidation.
Justice Singh was informed on February 21, 2023 that the parties have arrived at a settlement and they do not wish to pursue the matter any further.
After considering the facts, the Court noted that in the present matter, the police has not only investigated the case but even filed the chargesheet and judicial times had been wasted.
"Considerable time of the police has also been wasted on issues which should not have escalated to this extent. In addition, valuable judicial time has also been wasted. Even though the parties have settled their disputes and quashing will put a quietus to the matter, the petitioners must do some social good," the Court underscored.
It added that since the petitioners belong to a humble background, financial cost will not be imposed on them but they must plant the trees within four weeks.
Advocate KS Choudhary appeared for the petitioners.
Additional Public Prosecutor Ajay Vikram Singh appeared for the STate.
Advocate Shilankar Shakya appeared for other respondents.
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Arising Out of PS. Case No.-1551 Year-2019 Thana- PATNA COMPLAINT CASE District-
Patna
Mr. Rahul Gandhi
... ... Petitioner
Versus
The State of Bihar through The Secretary Deptt. of Home Old Secretariat,
Patna (Bihar) & Anr.
... ... Opposite Parties
Appearance :
For the Petitioner/s : Mr. Ansul, Advocate
For the State : Mr. P.K. Shahi, Advocate General
For Opp. Party No.2 : Mr. S.D. Sanjay, Senior Advocate
Mr. Aalok Kumar, Advocate
Mrs. Priya Gupta, Advocate
Mrs. Sushmita Mishra, Advocate
224-04-2023 Heard Sri Ansul, learned counsel for the petitioner,
Sri P.K. Shahi, learned Advocate General appearing for the State
of Bihar and Sri S.D. Sanjay, learned senior counsel appearing
for the complainant/opposite party no.2.
The petitioner has filed a second supplementary
affidavit in the matter and has served the copies of the same
upon learned Advocate General and learned senior counsel for
the opposite party no.2.
It has been argued by learned counsel for the
petitioner that once the petitioner has been tried and convicted
by the Court below at Surat (Gujarat) for the same offence i.e.
for his statement made in public, the present prosecution in this
Patna High Court CR. MISC. No.73323 of 2019(2) dt.24-04-2023
State for the same offence cannot proceed any further.
Learned senior counsel for the opposite party no.2
has submitted that he will be filing a counter affidavit in the
matter and will be arguing the matter in detail. He has relied
upon a judgment and order dated 05.07.2022 of the Jharkhand
High Court passed in Cr.M.P. No.152 of 2020, by which the
application of the present petitioner for quashing of the F.I.R.
lodged on the basis of the aforesaid statement of the petitioner
has been dismissed.
Learned Advocate General appearing for the State
has taken to this Court to Article 20(2) of the Constitution of
India and has submitted that the prosecution of the petitioner for
the same offence for which he was being tried and convicted by
the Surat Court below and at difference places cannot continue.
Learned counsel for the petitioner has submitted
that the judgment of the Jharkhand High Court was passed much
before the conviction of the petitioner by the Surat Court below
and therefore, the question that the prosecution of the petitioner
is barred under Section 300 of the Cr.P.C. has not been
considered.
In that view of the matter, this application needs a
full fledged hearing.
Patna High Court CR. MISC. No.73323 of 2019(2) dt.24-04-2023
List this case on 15.05.2023 for further hearing .
Till next date of hearing, further proceeding of the
Court below in connection with Complaint Case No. 1551(C) of
2019 shall remain stayed.
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The Patna High Court on Monday stayed till May 15, the proceedings before a Bihar court against Congress leader Rahul Gandhi in a defamation case filed against him by Bhartiya Janta Party (BJP) leader Sushil Kumar Modi.
The interim stay Justice Sandeep Singh stayed the proceedings on a plea by Gandhi to quash the summons issued by a Patna court.
"Till next date of hearing, further proceeding of the Court below in connection with Complaint Case No. 1551(C) of 2019 shall remain stayed," the Court observed.
A Patna court had, on March 31, directed Gandhi to appear before it physically on April 12, so as to record his statement under Section 313 of the Criminal Procedure Code (CrPC) in the defamation case.
However, Gandhi did not appear on the given date. Therefore, on the request of Gandhi's counsel for more time, the Court had directed Gandhi to appear physically on April 25.
Subsequently, Gandhi moved the Patna High Court.
The case has its genesis in the election campaign during the 2019 general election when Gandhi in a rally in Karnataka's Kolar had said,
"Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have 'Modi' as a common surname?"
Sushil Kumar Modi had subsequently filed a suit against Gandhi for his objectionable remarks. However, the Congress leader was granted bail in this defamation case on July 6, 2019.
Gandhi has multiple proceedings pending against him for the same remark.
In one such case filed by another BJP leader Purnesh Modi, a court in Surat had already convicted him and sentenced him to two years in prison as a consequence of which he was disqualified as Member of Parliament (MP).
More than 10 other criminal defamation cases are pending against Gandhi in various courts across the country for various statements. Gandhi, however, has not filed any such case against anyone.
Advocate Ansul represented Rahul Gandhi.
Advocate General PK Shahi represented State.
Senior Advocate SD Sanjay and Advocates Aalok Kumar, Priya Gupta and Sushmita Mishra represented opposite party.
|
Writ Petition (PIL) No. 58 of 2020
Writ Petition (PIL) No. 97 of 2019
Writ Petition (PIL) No. 50 of 2020
Writ Petition (PIL) No. 51 of 2020
Writ Petition (PIL) No. 67 of 2020
Writ Petition (PIL) No. 70 of 2020
Mr. Shiv Bhatt, the learned counsel for the petitioner in WPPIL
No. 58 of 2020.
Mr. Dushyant Mainali, the learned counsel for the petitioner in
WPPIL No. 50 of 2020.
Mr. Abhijay Negi, the learned counsel for the petitioner in WPPIL
No.97 of 2019.
Mr. S.N. Babulkar, the learned Advocate General assisted by Mr.
C.S. Rawat, the learned Chief Standing Counsel for the State of
Uttarakhand.
Mr. Rakesh Thapliyal, the learned Assistant Solicitor General for
the Union of India.
COMMON ORDER: (per Hon’ble The Chief Justice Sri Raghvendra Singh Chauhan)
In compliance of the order dated 10.05.2021,
Mr. Om Prakash, the learned Chief Secretary, Mr. Amit
Negi, the learned Secretary, Medical Health and Family
Welfare, Mr. Dilip Jawalkar, the learned Secretary,
Uttarakhand Tourism and, Mr. Vedprakash Mishra,
Director, Department of Pharmaceuticals, are present
before this Court today through video conferencing.
2. Mr. Amit Negi, the learned Secretary, Medical
Health and Family Welfare and, Mr. Amit Sinha, the
Inspector General/Nodal Officer, Police Headquarter,
have filed their respective affidavits. The same shall be
taken on record.
3. On the other hand, Mr. Rakesh Thapliyal, the
learned Assistant Solicitor General appearing for the
Union of India, has submitted a series of documents
along with miscellaneous application No.9013 of 2021.
The same shall also be taken on record.
4. Similarly, Mr. Shiv Bhatt, the learned counsel
for the petitioner in Writ Petition (PIL) No.58 of 2020,
has submitted a series of documents, which shall be
taken on record.
5. The affidavit submitted by Mr. Amit Negi, the
learned Secretary, Medical Health and Family Welfare,
is a detailed report with regard to the compliance of the
directions issued by this Court, by its order dated
10.05.2021. Mr. Amit Negi, the learned Secretary,
submits that, in compliance of the said order, the State
has issued an “Expression of Interest”, (EoI), inviting
proposals from the interested ICMR and NABL
accredited COVID-19 testing labs for providing mobile
testing vans. However, despite the repeated attempts
of the State to motivate all such labs to provide the
mobile testing vans, so far, no headway has been
made. Therefore, by letter dated 13.05.2021, the State
has written to the Director General, ICMR, for providing
details of interested mobile van based COVID-19
testing labs.
6. The State Government has also received
letter dated 14.05.2021 from the Secretary,
Government of India, Ministry of Science and
Technology, suggesting to the State Government to
deploy the first “Mobile COVID-19 Diagnostic Lab”, built
by the DBT AMTZ, Vishakhapatnam. Presently, the
State Government is examining the said proposal.
7. He further submits that the State
Government has increased the number of testing being
done in different districts on a daily basis. In order to
buttress this plea, Mr. Amit Negi, the learned
Secretary, has drawn the attention of this Court to the
table provided in the affidavit. He further informs this
Court that the Government has utilized 278 mobile
testing teams for conducting the Rapid Antigen Tests,
and for collecting samples for RT-PCR tests. The
number of teams being mobilized in different districts
has also been provided in the affidavit.
8. According to Mr. Amit Negi, the State
Government has added one more Dedicated COVID
Hospital (DCH). Presently, there are twelve DCHs.
Moreover, there are ninety-seven Dedicated COVID
Health Centres (DCHC), and 391 Dedicated COVID Care
Centres (DCCC). Moreover, according to him, after
20.04.2021, the State Government has added seventy
hospitals as DCHCs. Furthermore, in order to establish
the DCHC at Ramnagar, the Government has already
sanctioned a sum of Rs.2.50 crores to the Chief Medical
Superintendent, RD Government Hospital, Ramnagar.
Therefore, in the near future, a DCHC would be
established at Ramnagar.
9. Mr. Amit Negi, has highlighted the difficulty
of procuring oxygen tanks for the State. According to
him, the learned Chief Secretary had addressed a letter
on 07.05.2021 to the Secretary, Ministry of Health and
Family Welfare, Government of India, wherein it was
suggested that the Uttarakhand State should be
permitted to procure its quota of 183 MT from the
locally produced centres within the Uttarakhand.
According to Mr. Amit Negi, the State is granted a
quota of merely 183 MT of oxygen by the Central
Government. Out of this 183 MT, only 123 MT can be
taken by the State from its local production unit. The
remaining quota, i.e. 60 MT has to be imported from
Jamshedpur in Chhattisgarh, and from Durgapur in
West Bengal. Therefore, the suggestion that, instead of
directing the Uttarakhand State to import its remaining
quota of oxygen from Chhattisgarh and West Bengal,
the remaining quota should also be permitted to be
taken from the local oxygen production units within the
State. According to Mr. Negi, so far, the Union of India
has not responded to the said letter.
10. Similarly, although by letter dated
13.05.2021, the Chief Secretary has written to the
Cabinet Secretary, Government of India, to increase
the oxygen quota of the State from 183 MT to 300 MT,
the letter is yet to elicit any response from the Central
Government.
11. Likewise, by letter dated 10.05.2021, the
Chief Secretary, Government of Uttarakhand had
requested the Secretary, Medical Health and Family
Welfare, Government of India, to supply 10,000 oxygen
concentrators, 10,000 oxygen cylinders, 30 Pressure
Swing Adsorption (PSA) oxygen plants, CPaP 200
Machines, 200 BiPaP Machines, and 1,00,000 Pulse
Oximeters. However, this letter has gone unheeded by
the Union of India. Therefore, Mr. Amit Negi, submits
that without the cooperation of the Central
Government, it may be difficult for the State
Government to ensure constant supply of oxygen to the
people of the State, especially, in the remote part of
the State.
12. Speaking about the lack of medical staff, Mr.
Negi, submits that constantly the State Government is
endeavoring to fill up the vacant posts of nursing staff
(both male and female), the vacant posts of
technicians, and the vacant posts of doctors. By letter
dated 22.04.2021, 345 doctors have been appointed in
various hospitals across the State. However, according
to Mr. Negi, selection is a time consuming process. But
the department is trying its level best to fill up as many
posts as possible in the shortest time.
13. He further informs this Court that there are
seventy-five CT scan machines operating in the State.
While fifteen of these machines are functioning in the
Government hospitals, sixty are functioning in private
hospitals. A CT scan machine has been installed in the
Coronation Hospital, Dehradun, and two CT scan
machines, one in Pithoragarh and another at Rudrapur,
are about to be installed.
14. In order to ensure the safety of the medical
staff, about 50,000 PPE kits, 2,00,000 N-95 masks, and
5,00,000 triple layer masks have been procured by the
State Government.
15. As far as the Standing Operating Procedure
(SOP) for Char Dham is concerned, both Mr. Amit Negi,
and Mr. Dilip Jawalkar, the learned Secretary, Tourism,
assure this Court that SOP issued by the Char Dham
Devasthanam Prabhandhan Board is being followed
scrupulously.
16. According to Mr. Amit Negi, the State
Government has issued guidelines for handling,
treatment and disposal of the medical waste generated
during the COVID-19 pandemic. It has also issued a
booklet containing guidelines for the safe disposal of
the said bio-medical waste. In order to educate the
public at large, number of advertisements are being
published in the print media, informing the public, both
about how to take care of the patients, which are in
home quarantine, and how to deal with the medical
wastage generated at home.
17. Speaking about the vaccination centres
functioning at two DCHC in Haldwani, Mr. Amit Negi,
submits that the Chief Medical Officer (CMO), Nainital,
has informed him that the vaccination is being carried
out about half a kilometer away from Dr. Sushila Tiwari
State Medical College. As the same is being done in the
Administrative Block of the College; steps have also
been taken to ensure that the COVID-19 positive
patients do not intermingle with the people coming for
vaccination. Moreover, the Secretary, Department of
Medical Health and Family Welfare, has addressed a
letter to the Director General, Medical Health and
Family Welfare, to ensure that wherever vaccination
centres are established, they are so established so as
to isolate the general public from the COVID-19
positive patients.
18. On the other hand, Mr. Rakesh Thapliyal, the
learned Assistant Solicitor General appearing of the
Union of India, submits that it is difficult for the Union
of India to concede to the request of the State
Government to permit it to take its quota of oxygen
from its local production centres. According to him, the
Central Government has to balance the interest of all
the State Governments.
19. On the other hand, Mr. Shiv Bhatt, the
learned counsel for the petitioner in Writ Petition (PIL)
No.58 of 2020, submits that there is a dearth of oxygen
tanks. In case PSA oxygen tanks were to be established
in the major hospitals throughout the State, it would
resolve the difficulty being faced by the State with
regard to the supply of oxygen.
20. Heard Mr. Amit Negi, the learned Secretary,
Medical Health and Family Welfare, Mr. Dilip Jawalkar,
the learned Secretary, Uttarakhand Tourism, Mr. Ved
Prakash Mishra, Director, Department of
Pharmaceuticals, Mr. Rakesh Thapliyal, the learned
Assistant Solicitor General appearing for the Union of
India, and Mr. Shiv Bhatt, the learned counsel for the
petitioner in Writ Petition (PIL) No.58 of 2020.
21. Tackling the COVID-19 pandemic is, indeed,
a herculean task. But despite the difficulties, the State
Government appears to be dedicated to the cause.
Many substantive and concrete steps are being taken
by the State to fortify the health care system which is
presently in a poor state. However, it is trite to state
that the health care system cannot be transformed
miraculously overnight. Procuring machines and
equipment, appointing the medical staff takes time.
Moreover, to ensure that the machines are run by
qualified technicians requires training. Therefore, Mr.
Amit Negi is justified in claiming that much as the
Government wants to better the health care system, it
will still take some time to do so.
22. However, despite the best efforts of the
State, there are still certain areas that require
immediate attention of both the Central Government
and the State Government.
23. A bare perusal of the table submitted in the
affidavit (at Page No.9 of the compliance affidavit),
showing the number of tests being done on a daily
basis, clearly reveals that the number of tests is
systematically being reduced. For example, in
Dehradun district, on 07.05.2021, the number of tests
carried out was 11,578, yet on 15.05.2021, the number
of tests was reduced to 7,765. Similarly in Haridwar, on
07.05.2021, 5,823 tests were carried out, yet on
15.05.2021, the number of tests was reduced to 3,100.
Likewise, in Nainital, on 07.05.2021, 3,406 tests were
carried out, whereas on 15.05.2021, only 1,947 tests
were carried out. There is no explanation offered by the
State for decreasing the testing, especially, in the most
crowded cities of the State.
24. It is rather surprising that, despite the
reasonable request made by the State Government to
the Central Government, to permit it to lift its quota of
oxygen from its own production centres within the
State, in spite of the request of the State to increase its
quota from 183 MT to 300 MT, and in spite of the
request of the State to supply large number of oxygen
concentrators, oxygen cylinders, PSA oxygen plants,
the Central Government is maintaining a studied silence
over all these issues.
25. In a quasi-federal country like ours, it is the
constitutional duty of the Central Government to rush
to the rescue of the State Government. Therefore, the
least that is expected from the Central Government is
to respond to the repeated letters being sent by the
State Government. However, so far, the Central
Government is yet to pay any heed to the request
being made by the State Government.
26. As far as the SOP covering the Char Dham is
concerned, this Court is not impressed by the
assurance being given by Mr. Dilip Jawalkar, the
learned Secretary, Uttarakhand Tourism. Although, he
would have the Court believe that the SOP is being
followed in letter and spirit, sufficient number of videos
on social media clearly reveal that there is no social
distancing being maintained either at the Kedarnath
temple, or the Badrinath temple. In fact, large numbers
of priest are permitted to enter the sanctum
sanctorum, and many of the priests are without masks.
Therefore, concrete steps need to be taken by the State
Government to ensure that Char Dham does not
become a new breeding ground for the spread of
COVID-19. More strict vigilance and surveillance for
Char Dham is immediately called for by the State.
27. In spite of the fact that a booklet is prepared
which contains the directions and instructions for
managing the medical waste generated by the COVID-
19 patients, and by institutions dealing with COVID-19
patients, the public needs to be informed, in a detailed
manner, as to how to deal with the medical wastage.
28. Although, the affidavit filed by Mr. Amit Negi,
claims that the recommendations made by the High
Level Committee are being implemented, there is no
evidence to support the said plea. Moreover, though, it
is claimed that part of the T.B. Sanatorium at Bhowali,
will soon be converted into a 100 oxygen bedded
COVID care centre, no timeline has been given in the
affidavit.
29. As far as the supply of Remdesivir , the anti-
viral injection is concerned, this Court is informed that
recently, the Central Government has increased the
State quota from 74,000 to 1,24,000 vials. On the
earlier occasion, it was pointed out that some of the
companies are defaulting in the schedule of supply of
Remdesivir . It is hoped that the Central Government
will take action against such defaulting companies, and
would ensure that the total supply of 1,24,000 vials is
supplied to the State.
30. Therefore, keeping in mind the facts
mentioned hereinabove, this Court issues the following
directions to the State and the Central Government:-
(i) The number of testing being carried out
throughout the State needs to be substantially
increased, especially, keeping in mind the
constant refrain of the Central Government, and
the ICMR. Therefore, the State should not
decrease the number of daily testing.
(ii) The Central Government is directed to
seriously consider the request of the State
Government to increase its quota of oxygen from
183 MT to 300 MT. After all, the number of cases
of COVID-19 is skyrocketing in the State.
Moreover, considering the fact that more than half
of the State consists of mountainous terrain,
considering the fact that the scattered villages and
towns throughout the mountainous terrain lack
the constant supply of oxygen, the request of the
State Government to provide 10,000 oxygen
concentrators, 10,000 oxygen cylinders, 30
Pressure Swing Adsorption (PSA) oxygen plants,
CPaP 200 Machines, 200 BiPap Machines, and
1,00,000 Pulse Oximeters, should be seriously
considered by the Central Government.
(iii) Similarly, the other requests made by
the State Government in its letter dated
10.05.2021, need to be considered by the Central
Government. Likewise the request made by the
State Government to permit it to lift its quota from
its own local production units within the State,
needs to be discussed and, if possible, conceded
too. For, such request is rather reasonable one.
Therefore this Court directs the Central
Government to take a decision on these issues
within a period of one week from the date of
receipt of a certified copy of this order.
(iv) This Court directs the State Government
to deploy sufficient number of persons at the Char
Dham to ensure that the SOP issued by the Char
Dham Devasthanam Prabhandhan Board is
complied with both in letter and spirit. The
persons, so deployed, should ensure that not just
the pilgrims visiting the temples, but, more
importantly, the priests and the staff of the
temples, constantly wear masks, and maintain
social distancing from each other. Strict action
should be taken against those who defy the SOP
under Regulation 19(A)(1) and Regulation
19(A)(2) of the Uttarakhand Epidemic Diseases
COVID-19 Regulations, 2020. This Court shall be
informed about the number of cases charge-
sheeted against the offenders in the Char Dham,
by Mr. Amit Sinha, the Inspector General and the
Nodal Officer, to this Court.
(v) This State Government is directed to
produce sufficient evidence to establish the fact
that the recommendations made by the High Level
Committee are, indeed, being implemented
throughout the State.
(vi) The State Government is further
directed to expedite the setting of 100 oxygen-
bedded COVID Care Centre at T.B. Sanatorium at
Bhowali.
(vii) Both the Central Government and the
State Government are directed to ensure that the
quota of 1,24,000 vials of Remdesivir are, indeed,
supplied to the State in a regular, and systematic
manner.
(viii) Mr. Rakesh Thapliyal, the learned
Assistant Solicitor General appearing for the Union
of India, is directed to ensure that the competent
person from the Central Government is present,
who would be in a position to explain to this Court
the reasons as to why the Central Government is
not willing to concede to the request of the State
Government for lifting the oxygen quota,
supplying of oxygen tanks, and the oxygen
concentrators etc.
31. Mr. Amit Negi, the learned Secretary, Medical
Health and Family Welfare and, Mr. Rakesh Thapliyal,
the learned Assistant Solicitor General appearing for
the Union of India, are directed to submit their reports
with regard to the implementation of the directions
given hereinabove by the next date.
32. Mr. Om Prakash, the learned Chief Secretary,
and Mr. Amit Negi, the learned Secretary, Medical
Health and Family Welfare, are directed to appear
before this Court on the next date i.e. 09.06.2021.
33. List this case on 09.06.2021.
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The Uttarakhand High Court on Thursday expressed its displeasure at the failure of the State government in ensuring compliance with COVID protocol while holding religious events or gatherings like Kumbh Mela and Char Dham Yatra in the midst of the COVID-19 pandemic.
A Bench of Chief Justice RS Chauhan and Justice Alok Verma said that the blatant violation of social distancing norms during these religious gatherings have caused embarrassment to the State.
"First we make the mistake of Kumbh Mela, then there is Char Dham. Why do we repeatedly cause embarrassment to ourselves?," the Chief Justice asked.
The remarks came after the Court came across videos on social media showing a large number of priests moving around in pilgrimage centres, Badrinath and Kedarnath in violation of social distancing norms.
"Who is supervising, or is it left to the priests? What happens if Corona virus spreads among the priests? Even when deity is being worshiped, you can't permit twenty priests to enter, because of the small size of room," the Court observed.
Dilip Jawalkar, the Secretary, of the Department of Tourism told the Court that for each place of worship, there are earmarks to ensure distancing.
"Nobody is following your earmarks. Please take a chopper to Char Cham, you will find what the reality is. Please take next chopper to Char Dham, go to Kedarnath ... " the Chief Justice responded.
The Court added that the videos showing violations of social distancing are available on social media. The government should be asking questions to violators instead of the Court, the Chief Justice added.
"Those videos which are available on social media. You yourself should be asking these questions, instead of court asking these questions. You are issuing orders on paper, no one is implementing," he said.
The Chief Justice went on to emphasise that the State Uttarakhand is accountable to the people and the Central government.
"We cause embarrassment to ourselves. The rest of the country is saying why can't Uttarakhand learn? I feel embarrassed when colleagues call me and ask what is happening in the State ... You can fool the Court, but you cannot fool the people, the reality exists out there... you are playing with the lives of millions of people in the country," the Chief Justice added.
In its order, the Court has directed the State Government to deploy a sufficient number of persons at the Char Dham to ensure that the SOP issued by the Char Dham Devasthanam Prabhandhan Board is complied with both in letter and spirit.
The matter will be taken up next on June 9.
|
SC no.03/21
State Vs Kuldeep and ors.
FIR no.78/20
PS Karawal Nagar
14.09.2021
Present: Sh.Manoj Chaudhary, Ld.Special PP for the State
alongwith IO Inspector Manoj Kumar.
Sh.Abdul Gaffar, Ld.Counsel for accused Mohd.Irshad
alongwith accused produced in J/C physically.
Sh.A.A.Khan, Ld.Counsel for accused Furkan alongwith
accused produced in J/C physically.
Sh.Vimal Tiwari, Ld.Counsel for accused Kuldeep
alongwith accused produced in J/C physically.
Sh.V.K.Singh and Sh. Manoj Chauhan, Ld.Counsels for
accused Deepak Yadav and Deepak Thakur alongwith
both the accused produced in J/C physically.
The arguments on charge have been heard in
detail.
Separately, the order on charge in the matter has
been passed. The charges have been explained to the
accused persons in vernacular in the presence of their
counsels. The accused persons have pleaded not guilty
and claimed trial.
The police has put up 5 accused persons for trial
in this case i.e. 3 Hindus and 2 Muslims. Now, a
peculi ar situation has arisen that whether the trial can be
permitted to proceed with assortment of accused persons
from different religions purportedly acting under two
different conspiracies and unlawful assemblies. This is
definitely going to interse prejudic e the defence of
accused persons from different religions.
Similar situation had arisen before a Gujarat
Court conducting the trial of Godhra Communal Riots.
The matter had been referred to Hon ’ble Guj arat High
Court in a criminal reference titled as “Addi tional
Sessions Judge V State of Gujarat 2011 SCC online Guj
951” wherein the Hon ’ble High Court was pleased to
authorize separation of trial of the accused persons from
two different communities. Bearing in mind the
aforesaid judicial precedent, this cour t also deems it
appropriate to separate the trial of the accused persons
so that their defence may not even likely to get
prejudiced.
The DCP (Crime Branch) Dr.Joy N.Tirkey is
hereby directed to furnish a complete set of chargesheet
in physical form to the court within two weeks from
today. Thereafter, the Ahlmad is directed to put up a
separate Sessions Case number thereupon which may be
SC no.3A/2021 in this very FIR and the existing
chargesheet shall be treated as chargesheet for three
accused persons na mely, Kuldeep, Deepak Thakur and
Deepak Yadav, whereas the other chargesheet shall be
treated as chargesheet for accused persons
Mohd.Furkan and Mohd.Irshad.
A copy of charge framed today be placed in other
file.
A copy of this order as also order on char ge be
also placed in other file.
A copy of this order be sent to the DCP (Crime
Branch) Dr.Joy N.Tirkey, Ld.Counsels for the accused
persons and the Superintendent Jail concerned through
electronic mode.
Now, re -notify the matter for PE on 26.11.2021.
P.Ws Sabir, Sajid, Mohd.Anees, Sharif Ahmed, Asif and
IO Inspector Manoj be summoned for the said date. The
summons of the aforesaid witnesses be executed through
DCP (Crime Branch) Dr.Joy N.Tirkey/ IO Inspector
Manoj.
|
A Special Court dealing with Delhi Riots cases has referred to the Gujarat High Court verdict in a Godhra Riots case on separation of trial on the basis of faith after it came on record that the accused on trial belonged to two different faiths [State v. Kuldeep and ors].
Calling it a “peculiar situation”, Additional Sessions Judge Vinod Yadav ordered separation of trial in the case.
“…whether the trial can be permitted to proceed with assortment of accused persons from different religions purportedly acting under two different conspiracies and unlawful assemblies. This is definitely going to inter se prejudice the defence of accused persons from different religions. Similar situation had arisen before a Gujarat Court conducting the trial of Godhra communal riots,” it stated.
The Court was dealing with a case where it had passed am order on charge against five accused persons - three Hindus and two Muslims. The accused had pleaded not guilty and sought trial.
It emphasised that a similar situation was referred to the Gujarat High Court in a criminal reference titled as Additional Sessions Judge v. State of Gujarat 2011, wherein the the High Court authorised separation of trial of the accused persons from two different communities.
Therefore, relying on the judicial precedent, the Court ordered to separate the trial of the accused persons so that their defence wouldn’t be prejudiced.
“The DCP (Crime Branch) Dr Joy N Tirkey is hereby directed to furnish a complete set of chargesheet in physical form to the court within two weeks from today,” the order passed on September 14 stated.
The Court staff was subsequently directed to put up a separate Sessions Case number in this very FIR and the existing chargesheet was ordered to be treated as the chargesheet for three accused persons namely, Kuldeep, Deepak Thakur and Deepak Yadav. The other chargesheet would be for accused persons Mohd Furkan and Mohd Irshad.
“A copy of this order be sent to the DCP (Crime Branch) Dr .Joy N Tirkey, Counsels for the accused persons and the superintendent jail concerned through electronic mode,” the order added.
Special Public Prosecutor Manoj Chaudhary appeared for the State. Advocate Abdul Gaffar represented accused Mohd Irshad, while Advocate AA Khan appeared for Furkan. Advocate Vimal Tiwari appeared for Kuldeep, while Advocates VK Singh and Manoj Chauhan represented Deepak Yadav and Deepak Thakur.
|
W.P.No. 2325 of 2022
K.Arunachalam ... Petitioner
1.The Principal Secretary to Government
Health and Family Welfare Department
Fort St. George,
Chennai – 600 009.
2.The Principal Secretary to Government
Revenue and Disaster Management Department
Fort St. George,
Chennai – 600 009.
3.The Additional Secretary/ Commissioner of Revenue/
Administration, Ezhilagam, Chepauk,
Chennai – 600 005.
4.The District Collector,
Office of the Collectorate,
Chennai – 600 001.
5.The Director of Medical and Rural Health Services
Teynampet
Chennai – 600 006.
6.The Director of Medical Education
Kilpauk, Chennai – 600 010.
7.The Dean
Rajiv Gandhi Government General Hospital
Poonamallee High Road, Chennai – 600 003.... Respondents
https://www.mhc.tn.gov.in/judis
PRAYER: Petition under Article 226 of the Constitution of India,
praying for the issue of a Writ of Certiorarified Mandamus calling for
the records of the impugned order No.37249/T1/2021-1, dated
28.10.2021 passed by the first respondent and to quash the said
impugned order and consequently directing the respondents to pay
the sum of Rs.50,00,000/- to the petitioner.
For Petitioner:: Mr. R.Thirugnanam
For RR 1 to 4:: M/s.P.Rajarajeswari
Government Advocate
For RR 6 & 7:: No appearance
The Writ Petition has been filed in the nature of Certiorarified
Mandamus seeking a direction to call for the records of the impugned
order No.37249/T1/2021-1, dated 28.10.2021 and passed by the first
respondent / the Principal Secretary to Government, Health and
Family Welfare Department, Chennai and to quash the same and
consequently to direct the respondents to pay a sum of Rs.50,00,000/-
to the petitioner.
2.The petitioner K.Arunachalam had benefited by payment
of a sum of Rs.50,00,000/- under the Pradhan Mantri Garib Kalyan
Package (PMGKP), Insurance Scheme for Health Workers Fighting
https://www.mhc.tn.gov.in/judis
Covid-19, consequent to the death of his wife K.Thangalakshmi, who
was a staff Nurse and worked in Rajiv Gandhi Government General
Hospital at Chennai. She had been posted for duty to render service
for Covid-19 patients from 21.04.2020 to 25.04.2020 for a period of
four days. She was infected with Covid-10 virus. She was admitted to
the Rajiv Gandhi Government General Hospital on 03.05.2020. She
was treated for five days. She was kept in quarantine for six days. She
was then sanctioned unearned leave on medical sanctioned on
31.05.2020. She rejoined duty on 01.06.2020. She was again was
infected with Covid-19 and was admitted in the same hospital on
08.06.2020. She unfortunately died on 14.06.2020 at 02.00 p.m.
3.The petitioner, after that started pursuing both the
Central Government and the State Government seeking compensation
for the death of his wife. As stated, under the PMGKP Insurance
Scheme for Health Workers Fighting Covid-19, he had been paid a
sum of Rs.50,00,000/-. There is no dispute raised about that particular
fact. However, at that relevant point of time, the Chief Minister had
also announced that the State Government would pay a sum of
Rs.10,00,000/- and thereafter consequent to the fact that the Central
Government had been paying a sum of Rs.50,00,000/-, also increased
the compensation payable by the State government to Rs.50,00,000/-.
https://www.mhc.tn.gov.in/judis
4.This has been interpreted by the learned counsel for the
petitioner as stating that even if the compensation has already been
paid by the Central Government under the PMGKP Insurance Scheme
for Health Workers Fighting Covid-19, the petitioner is eligible for
payment of another sum of Rs.50,00,000/- from the State Government.
I do not agree with such interpretation.
5.The purport of the Chief Minister's announcement is only
to equalise the compensation payable by the State Government to the
same amount as that was promised by the Central Government. It
was Rs.10,00,000/- by the State Government and that was increased
to Rs.50,00,000/-. There was no intention that the sum of
Rs.50,00,000/- which was the sum to be paid by the State Government
was over and above the sum paid by the Central Government. A
person can get that benefit of that scheme either under the Central
Government or under the State Government scheme. He cannot seek
a relief from both the Central Government and from the State
Government Scheme. That would be making unlawful gain from
unfortunate death. The petitioner must realise that Rs.50,00,000/-
which he claims can be given to any other family which requires that
benefit. He had received a sum of Rs.50,00,000/-. He should be
satisfied service of his wife had been recognised by the authorities
https://www.mhc.tn.gov.in/judis
and consequent to her death, her family had been given the benefit of
Rs.50,00,000/-. He should not stand in the way of yet another family
similarly benefiting from the State Government for such compensation
of Rs.50,00,000/- and claim the amount for himself over and above
again and again.
6.In the counter affidavit, it had been very clearly stated
that quite apart from Rs.50,00,000/- which has been paid, all the
other terminal benefits such as family benefit of Rs.3,00,000/-, DCRG
of Rs.17,46,927/- and leave salary benefit of Rs.9,70,124 had been
claimed and settled to the legal heirs. Additionally, the daughter
Tmt.A.Krishnakumari had also been given an appointment as an
Assistant in the Office of the National Health Mission, Tamil Nadu,
Chennai, by an order dated 19.03.2021. It is stated in the counter
affidavit that she has not joined in that office and has raised a claim
that the said employment does not fall under State Government
service and expressing grievance, has filed year another Writ Petition
which is pending. Let me not enter into any discussion on the merits
of that particular Writ Petition.
https://www.mhc.tn.gov.in/judis
7.With respect to the claim in the present Writ Petition is
concerned, I am afraid, I cannot accept the interpretation given by
the learned counsel for the petitioner that the petitioner should be
given a benefit of Rs.50,00,000/- by the Central Government and
another Rs.50,00,000/- by the State Government. The purport of the
scheme is that the benefit should be either from the Central
Government or from the State Government. If the benefit has been
rejected by the Central Government, then the State Government
would extend its arms and embrace the petitioner and seek to be
alleviate his grievances. The impugned order has been passed
rejecting compensation of Rs.50,00,000/- by the State Government.
The reasonings are correct and I uphold the order.
8.I find no ground to interfere with the said impugned order
and hence, the Writ Petition stands dismissed. No costs.
9.The other petition filed seeking employment of the
daughter in the State Government post would be independently
considered whenever it is taken up for hearing.
10.01.2023
vsg
Index: Yes/No
Internet: Yes/No
Speaking / Non Speaking Order
https://www.mhc.tn.gov.in/judis
To
1.The Principal Secretary to Government
Health and Family Welfare Department
Fort St. George,
Chennai – 600 009.
2.The Principal Secretary to Government
Revenue and Disaster Management Department
Fort St. George,
Chennai – 600 009.
3.The Additional Secretary/ Commissioner of Revenue/
Administration, Ezhilagam, Chepauk,
Chennai – 600 005.
4.The District Collector,
Office of the Collectorate,
Chennai – 600 001.
5.The Director of Medical and Rural Health Services
Teynampet
|
The Madras High Court recently held that a kin of a COVID-19 victim can claim benefits/ compensation either under the Central government scheme or State government scheme but not both.
Justice CV Karthikeyan, therefore, rejected a petition filed by a deceased nurse's husband, seeking a compensation of ₹50 lakh from the Tamil Nadu (TN) government.
The nurse had passed away after contracting COVID while at work.
"A person can get that benefit of that scheme either under the Central government or under the State government scheme. He cannot seek a relief from both the Central government and from the State government scheme," the Court said.
The Court noted that the petitioner, K Arunachalam had already received a sum of ₹50 lakh under the Central government's Pradhan Mantri Garib Kalyan Package (PMGKP) insurance scheme for frontline health workers fighting COVID-19, following the death of his wife K Thangalakshmi.
As per Arunachalam's petition, Thangalakshmi, who was a staff nurse at the Rajiv Gandhi government hospital in Chennai, was posted on COVID duty in April 21, 2020. While on duty, she was infected with COVID-19. After she recovered and her medical leave ended, Thangalakshmi rejoined work at the COVID ward on June 1, 2020.
However, she contracted COVID again and breathed her last on June 14, 2020.
At the time, benefits of PMGKP insurance scheme were extended to Arunachalam.
However, he approached the Madras High Court claiming that at the time of his wife's death, the TN government too had a scheme that paid ₹50 lakh as compensation to the kin of frontline health workers who died of COVID-19. Arunachalam, therefore, prayed the State government too be directed to pay such compensation amount to him.
The TN government, however, opposed his plea saying that Arunachalam had received the amount sanctioned by the Centre and that the State had also paid him all terminal benefits payable in the present case.
The High Court agreed with the State's submissions and said that the petitioner's counsel was making an erroneous interpretation of the law.
The Court said that the petitioner's claim amounted to making a "wrongful gain from an unfortunate death."
"The purport of the Chief Minister's announcement is only to equalise the compensation payable by the State Government to the same amount as that was promised by the Central Government. It was ₹10,00,000 by the State Government and that was increased to ₹50,00,000. There was no intention that the sum of ₹50,00,000 which was the sum to be paid by the State Government was over and above the sum paid by the Central Government. A person can get that benefit of that scheme either under the Central Government or under the State Government scheme. He cannot seek a relief from both the Central Government and from the State Government Scheme. That would be making unlawful gain from unfortunate death. The petitioner must realise that ₹50,00,000 which he claims can be given to any other family which requires that benefit. He had received a sum of ₹50,00,000. He should be satisfied service of his wife had been recognised by the authorities and consequent to her death, her family had been given the benefit of ₹50,00,000," the High Court said.
The Court also said that by claiming the compensation amount for himself "again and again," Arunachalam should not stand in the way of another family eligible for such compensation under the State government's scheme.
Advocate R Thirugnanam appeared for the petitioner.
Government Advocate P Rajarajeswari appeared for the respondent TN government authorities.
|
1 Judgment Pocso Case 749-2021
Presented on : 30-06-2021
Registered on : 07-07-2021
Decided on : 31-03-2022 & 04/04/2022
Duration : 0Y , 9Mths, 4 Days.
Exhibit- 25
The State of Maharashtra ]
(At the instance of Worli Police ]
Station Mumbai, in C.R.No.266/2021]..Complainant.
Versus
Sachin Suresh Wadekar ]
Aged: 37 years, Occ: Service, ]
R/a. Swami Vivekanand Nagar, ]
Room No.33-7/10, Ramabai ]
Ambedkar Nagar, Dr. E. Moses Road, ]
Worli, Mumbai-18. ].. Accused.
Special Judge, Under
SPP Mrs. S.S. Joshi for the State.
Adv. Vasant Prabhu (S.A.) for accused.
2 Judgment Pocso Case 749-2021
The accused stands charged for the offence punishable under
section 376(2)(f)(i)(n) and 506 of the Indian Penal Code (IPC in short)
under section 5(l)(n) and punishable under section 6 of the Protection of
Children from Sexual Offences Act, 2012 (POCSO Act in short) in Crime
No. 266 of 2021 of Worli Police Station.
2.The prosecution case in brief is that the victim was 13 years
old at the time of incident and she is daughter of the accused. The victim
was residing with her grand parents, accused, uncle and two siblings.
The mother of the accused had left the accused prior to 7 years due to
family dispute. The grandmother of the victim i.e. the complainant was
taking their care. The victim was studying in 7th Standard. The victim
missed her periods and therefore on 04/05/2021 the complainant
inquired with her. At that time the victim informed that the accused was
forcibly committing sexual intercourse with her since last one year. She
has also informed that the accused committed sexual intercourse with her
prior to 4 to 5 days and also tried to commit sexual intercourse prior to
one day of lodging of report. The victim has stated that the accused has
threatened to beat her and therefore she did not disclose the incident.
The complainant then went to the police station and lodged report
against the accused. On the basis of her report offence was registered.
The accused was arrested. Spot panchanama was prepared and one bed
sheet, half pant of the accused, one ladies top and shorts were seized as
per the panchanama. Accused and victim were referred for medical
examination. Statements of witnesses were recorded. The clothes and
samples were forwarded to FSL. Victim's birth certificate was collected.
She was also referred for recording her statement under section 164 of
3 Judgment Pocso Case 749-2021
Cr.P .C. to the Metropolitan Magistrate’s Court. After completion of
Investigation chargesheet was filed.
3.Charge was framed against the accused vide Exhibit-2 on
09/09/2021 and the same was read over and explained to the accused in
vernacular. The accused pleaded not guilty and claimed to be tried. The
defence of the accused as can be gathered from the suggestions given to
the witnesses and answers given while recording statement under section
313 of Cr.P .C. is of total denial. It is suggested by the accused that the
victim was talking with boys for which he scolded her and therefore he
has been falsely implicated.
4.In the light of prosecution case, evidence on record and
having heard both the sides, following points arise for my determination
and I have recorded my decisions thereon in following manner, for the
reasons discussed below.
1.Does the prosecution proved that on
03/05/2021 and before that in the house at
Swami Vivekanand Nagar, Room No.33-7/10,
Worli, Mumbai, the accused being relative
repeatedly committed rape upon the victim
girl aged 13 years, who is his daughter and
thereby committed an offence punishable
under section 376(2)(f) (i)(n) of the I.P .C. ?
: Affirmative.
2.Does the prosecution further proved that on
on the aforesaid period, date time and place
the accused threatened the victim girl aged 13
years, who is his daughter and thereby: Affirmative.
4 Judgment Pocso Case 749-2021
committed an offence punishable under
section 506 of the I.P .C. ?
3.Does the prosecution further proved that on
the aforesaid period, date, time and place the
accused committed repeated penetrative
sexual assault upon the victim girl aged 13
years, who is his daughter and thereby
committed an offence under section 5(l)(n)
and punishable under section 6 of the POCSO
Act ?
: Affirmative.
4.What order ? As per final order,
the accused is
convicted.
5.In order to prove the guilt of the accused the prosecution has
examined in all six witnesses in support of its case viz:
1) P .W .1 complainant at Exh.10,
2) P .W .2 Victim at Exh.13,
3)P .W .3 Vasudev Malkappa Naidu at Exh.15,
4)P .W .4 PSI Swapnil Shantaram Khonde at Exh. 17,
5) P .W .5 WPSI Reshma Namdeo Patil at Exh.19,
6) P .W .6 Dr. Saurabh Chandrakant Shankhlecha at Exh.21.
6.The prosecution placed on record following documents in
support of it’s case i.e. statement of the victim under section 164 of Cr.P .C
at Exh.5, statement of the complainant under section 164 of Cr.P .C at
Exh.6, date of birth certificate of the victim at Exh.11, Report at Exh,12,
FIR format at Exh.12/A, spot panchnama at Exh. 16, arrest form at
5 Judgment Pocso Case 749-2021
Exh.18, arrest panchnama at Exh.18/A and medical examination report
of the victim at Exh.22.
7. The accused neither examined himself on oath nor
examined any defence witness in support of his case.
8.Heard the learned Advocates for the accused and learned
SPP for the State.
Point Nos. 1, 2, 3 and 4:
9.As all the points are correlated, they are discussed together
to avoid repetition.
10.The learned SPP submitted that the victim has categorically
deposed about the incident and she is credible witness. There was no
reason for her to depose against her own father. Even though the room
was very small the incident can happen. Due to the threats and fear the
victim was unable to disclose about the incident. There is no evidence to
show that the victim was tutored. The victim was brought from Children
Home and hence there cannot be any tutoring. The FSL Reports do not
reflect that the incident has occurred as samples and clothes were
collected after some days of the incident. The SPP has therefore
submitted that the prosecution has duly proved the guilt of the accused
and hence he is liable to be convicted.
11.The advocate for the accused submitted that the victim used
to wander and that she was stopped by the accused from playing and
talking with the boys and therefore there were frequent quarrels between
6 Judgment Pocso Case 749-2021
her and the accused. Hence the accused has been falsely implicated.
Further, the incident as narrated by the victim is highly improbable as
about 7 to 8 persons were staying in 10’ x 10’ room. The victim was
going out frequently and when she was stopped, false report came to be
lodged. He has further submitted that the accused was taking proper care
of his children and did not perform second marriage. He was taking keen
interest in studies of the victim and hence such nature of acts being
committed by him is highly improbable. Further there is no corroboration
to the evidence of the victim from the independent witnesses. The FSL
report also does not support the case of the prosecution. Therefore he
has submitted that the accused is entitled for acquittal.
12.P .W .1 complainant has deposed that the victim is daughter of
the accused and she was 13 years old at the time of incident. She has
stated date of birth of the victim as 12/09/2007 and produced her birth
certificate at Exh.11. The accused is father of the victim and has not
disputed her age. The incident has occurred during the year 2020 and
the victim was 13 years old at that time. Hence, the prosecution has duly
proved that the victim was child as defined under section 2(d) of the
POCSO Act at the time of incident.
13.It is undisputed fact that the victim was residing with the
accused, her grand parents, uncle and two siblings. It is further
undisputed fact that the wife of the accused had left him prior to 7 years.
14.P .W .1 complainant has deposed that in May 2021, the victim
missed her periods and therefore she asked her the reason for the same
and at that time victim informed her that accused was committing
7 Judgment Pocso Case 749-2021
sexual intercourse with the victim since about one year and was
threatening to kill her if she disclosed about the same to anyone. Then,
she went to the police station and lodged report vide Exh.12. She was
cross-examined at length by the Advocate for the accused. It has come in
her cross-examination that the victim used to get irritated easily and she
was staying out for maximum time. She has also stated that she was
asking the victim not to play with the boys and therefore the victim was
having fear. She has further deposed that she was not aware with whom
the victim was meeting in her absence as she was returning from work at
8.00 p.m. She has also stated that she was talking with the friends of the
victim. She has denied that the victim was having male friends. She has
also stated that the accused disliked if the victim talked with male friends
but she has denied that as the victim was talking with boys, therefore
there were quarrels between the accused and the victim. She has stated
that the victim was not listening to all the things said by the accused and
therefore there were quarrels between them. She has volunteered and
stated that the accused was not allowing the victim to meet her friends
and was asking her to stay at home and therefore there were quarrels.
She has stated that their finances were dependent on her and the
accused. She has further stated that she was sleeping on the cot and
grand children were sleeping on the floor and that the accused usually
slept at the loft, but was coming down when it was hot. She has also
stated that the accused used to beat the victim as father does, if she
committed any wrong acts. She has stated that there were disputes
between her and the accused for money, but she has volunteered that as
the accused was drinking liquor and spending all the money for the same,
therefore there were quarrels. She has denied that the accused was
staying out of the house frequently and she volunteered to state that it
8 Judgment Pocso Case 749-2021
was her other son who was staying outside for most of the time. She has
deposed that till May 2020 the relations between the accused and the
victim were normal and they were talking with each other. She has stated
that she was getting up if there was noise in the house and that she was
sleeping for about 3 to 4 hours in the night. She has denied that the
victim was in love relationship with someone. She has denied that as the
accused was not paying her money and was consuming liquor, therefore
she lodged false report.
15.P .W .2 victim deposed that her mother left the accused as he
used to consume liquor and was frequently quarrelling. About the
incident she has deposed that in the night she used to sleep with her
sister and brother and the accused was sleeping next to her. He was then
removing her knicker. She further deposed that when she was about to
tell her grandmother, the accused threatened her. He had committed
sexual intercourse with her on four occasion and also on 03/05/2021.
She also stated that when her grandmother enquired as to why she was
keeping quite, she narrated the acts committed by the accused. In her
cross-examination she has stated that the accused was providing for all
their needs and that he had not performed second marriage. She also
deposed that she was having only female friends and her grandmother
was very strict. She has denied that she was talking with the boys and
she has stated that she was not having a single male friend. She has
stated that their house was very small but there was sufficient space for
everyone in the house. She has also stated that the accused used to talk
with her and was enquiring about her studies. She has also stated that
the accused was asking her to study and not to play much. She has stated
that in the night, one zero watt bulb used to be on in the room and her
9 Judgment Pocso Case 749-2021
grandmother was getting up sometimes in the night around 2.00 a.m. or
5.00 a.m. She also stated that she used to sleep in the last corner and she
has denied that no one could sleep near her. She has categorically stated
that her father was sleeping at home when he was returning home after
drinking.
16.P .W .6 Dr. Saurabh Chandrakant Shankhlecha has deposed
that the victim gave history that accused committed sexual intercourse
with her on multiple times after forcibly undressing her. He has deposed
that there were hymeneal tears and opinion was given that vaginal
penetration cannot be ruled out due to hymeneal tear. He has duly
proved the medical certificate at Exh.22. In his cross-examination he has
denied that the tears were possible due to cycling and swimming as the
tear of the victim was of 6’0’ clock position and was big. He has stated
that he read the FIR before examination of the victim.
17.P .W .3 Vasudeo Malkappa Naidu has deposed that the spot
panchanama was prepared in his presence and one top, half pant and one
top was seized vide panchanama at Exh.16. He has denied that he has
not acted as panch witness.
18.P .W .4 PSI Swapnil Khonde has deposed that he has taken
report in presence of WPSI Reshma Patil vide Exh.12. He has denied that
the report was written on his own. He has stated that the victim’s
statement was not recorded on the same day as her medical examination
was to be carried out first. He has also stated that earlier no N.C. or
report was lodged against the accused by the complainant.
19.P .W .5 WPSI Reshma Namdeo Patil has deposed that she
10 Judgment Pocso Case 749-2021
recorded the statement of complainant, victim and victim’s sister as per
their say. She has stated that the victim narrated the incident properly
and therefore it was not recorded in question and answer form. Further
the sister of the victim was very young therefore her statement was
recorded in question and answer form.
20.The accused in his statement recorded under section 313 of
Cr.P .C. has denied the incident. He has not stated as to why he has been
falsely implicated.
21.On perusal of the evidence brought on record by the
prosecution it can be seen that the victim was residing with her father,
grand parents, accused and her uncle. The spot of incident is the room
where they were residing. If the spot panchanama at Exh.16 is perused
then the room was 10’ x 10’ and there was an iron staircase inside. There
was kitchen platform in one corner and one cot was kept and there was
small bathroom inside the room. The Advocate for the accused has
vehemently submitted that such nature of acts are highly improbable
inside such a small room when about 5 to 6 persons were sleeping. Now,
the complainant’s husband was working as a Security Guard. The
complainant has also stated that her other son was frequently remaining
out of the house. The complainant was 60 years old lady and she was
working from morning till 8.00 p.m. The other children of the accused
were very young. The victim has categorically deposed that the accused
was sleeping besides her and that she was sleeping in the corner. She has
also stated that the accused was sleeping near her and was removing her
knicker and committing penetrative sexual intercourse and when she was
trying to inform her grandmother, he was threatening her. There cannot
11 Judgment Pocso Case 749-2021
be dispute about the fact that room was very small and about 5 persons
used to sleep in the room. One zero watt bulb also used to be on in the
room. The victim has categorically stated that the accused was not
allowing her to inform about the incident to anyone. Such acts are
performed in secrecy. Further considering the nature of relationship that
the accused was victim’s father, he can exercise his authority over her.
The victim has stated in cross-examination that her grandmother was
getting up at 2.00 a.m. or 5.00 a.m. Further the complainant has also
stated that she was sleeping for 3 to 4 hours in the night. The Advocate
for the accused has submitted that in such circumstances it is highly
improbable that no-one witnessed the acts committed by the accused.
Now, P .W .1 complainant has stated that her other grand daughter has seen
the accused sleeping upon the victim. The victim has also stated that her
sister had seen the accused performing said acts. Now the victim’s sister
was very young and therefore she may not be able to state about the
incident. Further the accused had taken due care and caution to see that
when the complainant was fast asleep after day long work, he did such
acts. Therefore, only because the room was very small it cannot be said
that such nature of acts were not possible.
22.The victim has categorically deposed about the acts of sexual
intercourse committed upon her. Her evidence is duly supported by the
medical evidence as P .W .6 Dr. Saurabh Shankhlecha has categorically
deposed that the hymeneal tears on the vagina of the victim were due to
vaginal penetration and were not possible due to swimming or cycling.
The victim has categorically stated that such acts were performed by the
accused on 3 to 4 occasions. The victim’s evidence is also corroborated
by the complainant, who is mother of the accused and in whom the
12 Judgment Pocso Case 749-2021
victim has confided. The conduct of the victim in confiding in her grand
mother is natural conduct.
23.The Advocate for the accused has submitted that the houses
in the area where the victim was residing are closely located and no
independent witnesses are examined. Now, the acts were performed by
the accused in the night when everyone was sleeping and he did not
allow the victim to raise shouts. Therefore, there cannot be any
independent witness to such incident.
24.The complainant is mother of the accused and it has been
suggested to her that due to monetary quarrels she had falsely implicated
him. Now since prior to 7 years of the incident the accused is residing with
his children with the complainant and she was taking their care. The
accused is son of the complainant and it is not probable that complainant
will lodge false report against her own son when responsibility of his
three children will fall upon her in his absence. The complainant has
admitted in her cross-examination that there were quarrels between her
and the accused, but she clarified that the quarrel were for the reason
that he was drinking liquor and spending all money for the same. It is
natural conduct that the complainant disliked the drinking habit and
spending all money on the same by the accused without caring for
children. In fact due to said behaviour of the accused, his wife left him.
In the circumstances, I find that contention of the Advocate for the
accused is devoid of merits.
25.The victim has categorically deposed that the accused had
committed sexual assault upon her. She has denied that she was meeting
13 Judgment Pocso Case 749-2021
boys. May be she was staying for maximum time out of the house, but
that is natural conduct of the children that they want to play. Therefore
may be for the same she may be scolded by the accused as a father but
that cannot be a reason for the victim to falsely implicate the accused, her
own father. There is no iota of evidence on record to show that the victim
was having male friends and that she was going out with him. In fact it
has come on record that she was not having male friends.
26.It has come in the cross-examination of P .W .1 complainant
that the victim was regularly talking with the accused and he was
inquiring about her studies. The Advocate for the accused has submitted
that if the accused had performed alleged acts then the victim would not
have behaved normally and talked with the accused. No doubt the acts
committed by the accused are heinous and the same is bound to create
hatred and fear in the mind of the victim. But the victim was staying
with the accused and she had no other place to go. Her mother had
already left them. In the circumstances, she may have behaved normally
with the accused but that will not go to show that he has not committed
any acts as alleged.
27.The evidence of the victim is consistent with her statement
recorded under section 161 of Cr.P .C. and 164 of Cr.P .C. She has
categorically stated that the accused had undressed her and committed
penetrative sexual assault upon her. The medical evidence also supports
the case of the prosecution and the victim has also given history of same
nature to the Doctor. There was no reason for the victim and the
complainant to depose falsely against the accused. The prosecution has
therefore proved the foundational facts and the burden shifted upon the
14 Judgment Pocso Case 749-2021
accused under section 29 of the POCSO Act to show that he has been
falsely implicated by bringing probable evidence on record.
28.The accused himself has not entered into the witness box nor
he has given any reason as to why his own daughter and mother were
deposing against him. The victim has categorically deposed that she was
not in relationship with any male person. Therefore, the defence of the
accused that he has been falsely implicated due to affair of the victim is
not proved through probable evidence on record. The defence of the
accused has been totally denied by the prosecution witnesses and the
accused himself has not brought any material on record to substantiate
the same. There is absolutely no material on record to show that the
defence of the accused is probable. Therefore the accused has failed to
discharge the burden casted upon him.
29.The victim was 13 years old at the time of incident and she
was a school going child. The incident has occurred when she was
sleeping in 10’ x 10’ room alongwith her grandmother, siblings and the
accused. In the night, the accused had committed penetrative sexual
assault upon her. If the victim had raised shouts then such heinous acts
would have been averted. Failure of the victim to raise shouts definitely
does not in any way create doubt in her evidence as the person in
authority and on whom the victim’s life was dependent, had performed
such acts. The victim’s failure to raise shouts is mainly for the reason that
there is fear in the mind of children that if a close relative commits such
nature of acts then what will happen to their life if they resist as the
uncertainty of future loom large in their mind. Such kind of fear is real
when the children are not protected in their own house and they are
15 Judgment Pocso Case 749-2021
afraid of the world outside. In the present case, the victim’s mother had
left her and her other siblings. So her situation was more vulnerable.
This fear of children is not addressed as they do not know that how they
will be protected and cared for as they are not aware that they will get a
shelter and an opportunity to lead a normal life. They have n o access and
knowledge that they need not be frightened and they will be taken care
of. The POCSO Act is enacted for the ‘Protection’ of children. In such
nature of cases, Section-43 becomes very important provision of the Act
which provides for spreading awareness about the POCSO Act through
media including T .V . and also print media. Section-44 of the Act is also
very important as it provides that National Commissions for Protection of
Child Rights and the State Commission for Protection of Child Rights are
required to monitor implementation of the provisions of the Act. In many
cases it can be seen that the the children are made aware about the bad
touch and good touch through various awareness programmes held
mainly on initiative of Police Department through ‘Police Didi’
Programmes. Many children have opened up in such programmes and
crimes are detected. But still there is hesitance and fear and that may be
because of uncertainty of future as children are not aware that if they
speak up, they will be protected.
30.In exercise of powers conferred by Section-45 of the POCSO
Act, rules are framed by the Central Government with effect from
09/03/2020. Rule-3 sub rule-2 provides that:
3) Awareness generation and capacity building – (1) The Central
Government, or as the case may be, the State Government shall prepare
age-appropriate educational material and curriculum for children,
informing them about various aspects of personal safety, including-
16 Judgment Pocso Case 749-2021
(2) Suitable material and information may be disseminated by the
respective Governments in all public places such as panchayatbhavans,
community centres, schools and colleges, bus terminals, railway stations,
places of congregation, airports, taxi stands, cinema halls and such other
prominent places and also be disseminated in suitable form in virtual
spaces such as internet and social media.
(3) The Central Government and every State Government shall
take all suitable measures to spread awareness about possible risks and
vulnerabilities, signs of abuse, information about rights of children under
the Act along with access to support and services available for children.
4) Any institution housing children or coming in regular contact
with children including schools, creches, sports academies or any other
facility for children must ensure a police verification and background
check on periodic basis, of every staff, teaching or non-teaching, regular
or contractual, or any other person being an employee of such Institution
coming in contact with the child. Such Institution shall also ensure that
periodic training is organised for sensitising them on child safety and
protection.
(5) The respective Governments shall formulate a child protection
policy based on the principle of zero-tolerance to violence against
children, which shall be adopted by all institutions, organizations, or any
other agency working with, or coming in contact with children.
(6) The Central Government and every State Government shall
provide periodic trainings including orientation programmes,
sensitization workshops and refresher courses to all persons, whether
regular or contractual, coming in contact with the children, to sensitize
them about child safety and protection and educate them regarding their
responsibility under the Act. Orientation programme and intensive
17 Judgment Pocso Case 749-2021
courses may also be organized for police personnel and forensic experts
for building their capacities in their respective roles on a regular basis .
31.Further Rule-4 inter-alia provides about procedure regarding
care and protection of child. Sub rule(4) and (5) of Rule-4 provides that:
(4) Wherethe SJPU or the local police receives information under
sub section (1) of Section 19 of the Act, and has a reasonable
apprehension that the offence has been committed or attempted or is
likely to be committed by a person living in the same or shared household
with the child, or the child is living in a child care institution and is
without parental support or the child is found to be without any home
and parental support, the concerned SJPU, or the local police shall
produce the child before the concerned Child Welfare
Committee(hereinafter referred to as “CWC”) within 24 hours of receipt
of such report, together with reasons in writing as to whether the child is
in need of care and protection under sub-section (5) of Section 19 of the
Act, and with a request for a detailed assessment by the CWC.
(5) Upon receipt of a report under sub-rule (3), the concerned
CWC must proceed, in accordance with its powers under sub-section(1)
of section 31 of the Juvenile Justice Act, 2015 (2 of 2016), to make a
determination within three days, either on its own or with the assistance
of a social worker, as to whether the child needs to be taken out of the
custody of child’s family or shared household and placed in a children’s
home or a shelter home .”
32.There are rules about spreading awareness and also if the
child needs to be taken away from the family and to place him in
Children’s Home or a Shelter Home. The Act and the rules are in place
18 Judgment Pocso Case 749-2021
for protection of children and the need is about spreading more
awareness about the same. The cases are detected and the offenders are
being punished. As per the POCSO Act, punishing the offenders and
appropriate steps for protection of children are equally important. But
may be more thrust is on punishing than protection. The rules provides
for creating awareness at every nook and corner, through media and in
education material. As in the present case the victim girl kept quite for
long time and suffered eventhough she was school going child. She had
access only to her grandmother. The court finds that the victim was not
aware of the need to speak up and also whom to approach when such
nature of acts were committed with her. It does not appear that she had
knowledge that she can be cared for and protected if she raised the voice.
33.In the present case the evidence on record establishes that
the accused has committed repeated penetrative sexual assault upon the
victim. It is also proved that he has threatened the victim for not
disclosing about the incident to anyone. Therefore I answer Point Nos. 1,
2 and 3 in the affirmative.
34.As, I held the accused is guilty for the offence punishable
under section 376 (2)(f)(i)(n) and 506 of the IPC and under section 6 of
the POCSO Act, I stop the judgment to hear the accused, his Advocate
and learned SPP for State, on the question of sentence.
Special Judge under P .O.C.S.O Act,
Gr. Mumbai.
19 Judgment Pocso Case 749-2021
Judgment continued….
Date: 04/04/2022
Same appearance.
35.Heard accused, learned Advocate for the accused and
learned SPP for the State.
36The learned Advocate for the accused submitted that he has
no criminal antecedents. He is having three children and he has to look
after them. The grandmother of the children is very old and she may not
be able to take their care. Further, the accused may have committed
offence under the influence of liquor and he has learned a lesson.
Therefore he has submitted that minimum sentence be imposed upon the
accused.
37.The learned SPP has submitted that the accused has
committed very heinous act upon his own daughter aged 13 years old.
Therefore, no leniency can be shown to the accused and maximum
sentence be imposed upon him.
38.The submission of the accused that he has to look after his
children cannot be a ground for leniency as he has committed penetrative
sexual assault upon his own daughter. No doubt the children’s future is
at stake as they are dependent on their grandmother and their mother
has already left them but accused cannot invoke the said ground for
leniency. The victim’s grandmother need to be commended for seeking
justice eventhough she will be required to look after children of the
20 Judgment Pocso Case 749-2021
accused at such old age. The victim was subjected to penetrative sexual
assault by her own father when she was only 13 years old. A father lays a
foundation of security, trust and love. A father makes his daughter’s life
safe and protect her from getting hurt. But victim’s father himself has
caused immeasurable pain to her. The childhood trauma is bound to
affect the victim. The court is confident that she will cope up with the
same with the help and guidance from various agencies established
under the POCSO Act. The accused does not deserve much leniency as
offence committed by him is heinous which affects the fabric of life. The
accused could not engage Advocate and he was given legal aid Advocate.
I do not find that he has financial capacity to compensate the victim
for the physical and mental injuries she suffered. Therefore, the victim
need to be compensated as per the Victim’s Compensation Scheme. In
view of my aforesaid discussion, I find that the following sentence will
meet the ends of the justice. To conclude the trial, I proceed to pass the
following order.
1)Accused Sachin Suresh Wadekar is convicted vide Section 235(2) of
the Code of Criminal Procedure in C.R.No. 266 of 2021 of Worli Police
Station, for the offence under section 5(l) (n) and punishable under
section 6 of the Protection of Children from Sexual Offences Act, 2012
and sentenced to suffer rigorous imprisonment for 25 (twenty five) years
and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand Only). In
default of payment of fine, he shall undergo rigorous imprisonment for 6
(six) months.
21 Judgment Pocso Case 749-2021
2)Accused Sachin Suresh Wadekar is also convicted under section
506 of the Indian Penal Code, and sentenced to suffer rigorous
imprisonment for 1 (one) year.
3) Accused Sachin Suresh Wadekar is also convicted under section
376(2)(f)(i)(n) of the Indian Penal Code, but sentence is given under
section 6 of the Protection of Children from Sexual Offences Act, 2012 as
provided under section 42 of the POCSO Act.
4)Both the sentences shall run concurrently.
5) Marked and Unmarked muddemal articles if any, being worthless,
be destroyed after appeal period is over.
6)The accused is in jail from 04/05/2021 till today, hence set off be
given to him for the period of detention undergone by him during
investigation and trial, as per section 428 of the Code of Criminal
Procedure.
7) Out of the fine, an amount of Rs.15,000/- (Rupees Fifteen
Thousand only), be given to the victim, as compensation, after appeal
period is over.
8) The accused is informed that he has right to appeal.
9) Copy of the Judgment be given to the accused, free of cost.
22 Judgment Pocso Case 749-2021
10)The Court recommends payment of compensation to the victim.
11)The copy of judgment be forwarded to the Mumbai District Board
for Criminal Injuries Relief and Rehabilitation.
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A special court in Mumbai on Monday convicted and sentenced a 37-year-old man to 25 years in jail for offences under the Protection of Children from Sexual Offences Act (POCSO Act) after he was found guilty of raping his adolescent daughter multiple times [The State of Maharashtra vs Sachin Suresh Wadekar].
Special Judge Bharti Kale was of the opinion that the accused did not deserve leniency for his heinous crime.
"A father lays a foundation of security, trust and love. A father makes his daughter’s life safe and protect her from getting hurt. But victim’s father himself has caused immeasurable pain to her....The accused does not deserve much leniency as offence committed by him is heinous which affects the fabric of life," the Court said.
The prosecution claimed that the 13-year-old girl lived with her grandparents, uncle, father, and two younger siblings. Her mother was said to have abandoned them seven years before the incident.
The incident came to light in May 2021, when the girl's grandma questioned her about her missed menstrual cycle. The girl then stated that her father had been subjecting her to forceful sexual abuse since the previous year.
She claimed that the accused used to rape her when he returned home under the influence of liquor. He allegedly sexually assaulted her at least five times.
The accused pleaded not guilty to the accusation.
His counsel argued that the house where they were living was too tiny for someone to perform such a crime without being detected by others. The lawyer said that the bogus complaint was filed against him because he used to prevent the girl from conversing with her male friends.
It was contended that the failure by the survivor to raise an alarm suggested that the act did not take place.
The judge stated that the child's refusal to raise an alarm did not cast doubt on her evidence since she was sexually assaulted by someone in authority on whom she was reliant. The Court stated that just because the living space was tiny did not mean that such activities were not feasible.
On the survivor's silence, the Court said that in most cases, it is due to fear.
"The victim’s failure to raise shouts is mainly for the reason that there is fear in the mind of children that if a close relative commits such nature of acts then what will happen to their life if they resist as the uncertainty of future loom large in their mind. Such kind of fear is real when the children are not protected in their own house and they are," the Court said.
In the present case, the victim’s mother had left her and her other siblings and so her situation was more vulnerable, the Court added.
"This fear of children is not addressed as they do not know that how they will be protected and cared for as they are not aware that they will get a shelter and an opportunity to lead a normal life," the Court observed.
Citing provisions of the POCSO Act, it said there were rules for spreading awareness and also to ensure that the child is placed in a shelter home if needed.
Th man was sentenced to 25 years of rigorous imprisonment along with a fine of ₹20,000 to be paid as compensation to the survivor.
Special Public Prosecutor SS Joshi appeared for the State. Advocate Vasant Prabhu represented the accused.
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$~S-10 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 82/2021 NATASHA NARWAL ..... Appellant Through: Mr. Adit S. Pujari, Ms. Tusharika M a t t o o & M r. K u n a l N e g i , Advocates. versus STATE OF DELHI NCT .... Respondent Through: Mr. Amit Prasad, Mr. Amit Mahajan, and Mr. Rajat Nair, SPP for the State with Mr. Dhruv Pande and Mr. Shantanu Sharma, Advocates. CORAM: HON'BLE MR. JUSTICE SIDDHARTH MRIDUL HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI O R D E R % 10.05.2021 The present matter has been taken up for hearing by way of Video Conferencing on account of COVID-19 pandemic. CRL.M.A. 7247/2021 (Exemption) The present application under section 482 of the Cr.P.C. has been filed on behalf of the applicant/appellant seeking exemption from filing notarized affidavit in support of the accompanying application. For the reasons stated in the application and in view of the prevailing situation, the same is allowed. The applicant/appellant is allowed to file the notarized affidavit within a period of 01 week after resumption of the normal functioning of the Court. CRL.M. (BAIL) 536/2021 The present application had been instituted on behalf of Natasha Narwal, the applicant/appellant, originally seeking release on interim bail on the ground that her aged father had been hospitalised at the Positron Hospital in Rohtak, Haryana, on account of having tested ‘positive’ for CRL.A. 82/2021 Page of 41
COVID-19 virus. It was also asseverated that the brother of the applicant/appellant, who was hitherto taking care of the father, had also tested ‘positive’ for Covid-19 on 07.05.2021 and was consequently unable to take care of their aged, ailing father. We are informed at the Bar today by Mr. Adit S Pujari, learned counsel appearing on behalf of the appellant/applicant, that Sh. Mahavir Narwal the applicant/appellant’s father breathed his last and passed away yesterday at about 06:00 p.m. at the above-mentioned hospital. Mr. Pujari further states that Sh. Mahavir Narwal is survived only by his daughter, namely the appellant/applicant, and a son, namely Mr. Akash Narwal, who as recorded above, is in self-isolation owing to COVID-19 infection; and that therefore there is nobody else in the family to perform Sh. Mahavir Narwal’s cremation and last rites. It is stated in the application that the appellant/applicant’s mother passed away some 21 years ago. It has also been brought to our notice that the Positron Hospital at Rohtak, Haryana, where the body of the late Sh. Mahavir Narwal is presently kept, is waiting for the appellant/applicant to receive the same. Issue notice. Mr. Amit Mahajan and Mr. Amit Prasad, learned SPPs appearing on behalf of the official respondent, appear on advance copy; accept notice; and fairly do not oppose the relief prayed for in the application in view of the circumstances elaborated hereinbefore. They also confirm the passing away of the appellant/applicant’s father. In view of the foregoing and in the interests of justice, we are of the view that the release of the applicant/appellant is imperative in this hour of grief and personal loss and in the facts and circumstances of the case. We accordingly direct that the appellant/applicant Natasha Narwal be release forthwith on interim bail for a period of 03 weeks, subject to the CRL.A. 82/2021 Page of 42
following conditions: 1)The appellant/applicant shall furnish a personal bond in the sum of Rs. 50,000/- to the satisfaction of the Jail Superintendent. In view of the circumstance that her sole sibling Mr. Akash Narwal is currently in self-isolation by reason of being afflicted by COVID-19 and the appellant/applicant has already furnished sureties towards bail granted to her in FIR No. 50/2020 at P.S.: Jafrabad and FIR No. 48/2020 at P.S.: Jaffrabad, the appellant/applicant is exempted from filing any surety; 2)The appellant/applicant will provide a cell phone number to the SHO, P.S.: Crime Branch (Special Cell) on which she may be contacted at any time, which she undertakes to keep operational during the entire period of her release. In addition, the appellant/applicant shall also furnish a cell phone number to the SHO, PS : Urban Estate, Rohtak, Haryana, which is stated to have jurisdiction over the place of the appellant/applicant’s residence at 1225, Sector-3, Rohtak, Haryana; 3)The appellant/applicant shall comply with all governmental rules in force by reason of the prevailing pandemic and observe all precautions as stipulated therein without demur, including but not limited to wearing a PPE kit at the time of the cremation; 4)The appellant/applicant shall not leave the territories of the State of Delhi and Haryana without permission of the court and shall ordinarily reside at the address as per prison records/as mentioned in the application; 5)The applicant/appellant shall surrender before the Jail Authorities upon expiry of the period of interim bail; 6)Not earlier that 03 days before the time of her surrender, the CRL.A. 82/2021 Page of 43
applicant/appellant shall undergo an RT-PCR test for COVID-19 and shall provide to the Jail Superintendent a copy of such report. Mr. Pujari informs the court that one of the conditions of the bail granted to the appellant/applicant in F.I.R. No. 50/2020 prohibits the applicant from leaving the jurisdiction of the NCT of Delhi. Considering the ground and the purpose for which interim bail is being granted by this court by way of present order, it is clarified that the applicant/appellant travelling within Delhi and Haryana in terms of the present order shall not constitute a violation of the aforesaid condition of bail granted in F.I.R. No. 50/2020. The present order be issued under the signatures of the concerned Registrar, who is also directed to telephonically inform the concerned Jail Superintendent of the directions contained in this order, for compliance. Copies of the order be provided electronically to the learned counsel appearing on behalf of the parties as well as the Jail Superintendent, forthwith. The present application stands disposed of. SIDDHARTH MRIDUL, J ANUP JAIRAM BHAMBHANI, J MAY 10, 2021/uj
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The Delhi High Court on Monday granted interim bail for three weeks to Pinjra Tod member, Natasha Narwal in the Delhi riots case after her father passed away due to COVID-19.
The release will be subject to furnishing personal bond of Rs. 50,000.
She was also directed to provide her telephone number to the Station House Officer, PS Crime Branch, Special Cell, Delhi Police. She also has to furnish her phone number to SHO, police station within whose jurisdiction her address in Rohtak is, the Court further directed.
The telephone number so provided should be kept operational, the Court said.
She was also directed not to speak or post anything on social media about the pending case or issue.
Narwal moved the Court through advocate Adit Pujari seeking interim bail on account of the death of her father, Mahavir Narwal.
The prosecution did not oppose the plea.
"In the pleading, we had sought interim bail on the ground that the father is down with COVID-19. Unfortunately, he passed away last evening. The brother also has COVID," Pujari said.
"Are you opposing?" a Bench of Justices Siddharth Mridul and Anup J Bhambani which heard the matter, asked the prosecution lawyer.
"Not at all," said advocate Amit Mahajan appearing for the prosecution.
The Court proceeded to appreciate the stand of the government.
"Shri Mahavir Narwal is survived only by Akash Narwal (brother) who is in self isolation owing to COVID 19 and Natasha Narwal. Therefore, there is nobody else in the family to perform the last rites and cremation," the Court noted in its order.
The State fairly does not oppose the release as prayer for now in view of the circumstances elaborated, the Court further noted.
"In view of the foregoing and interest of justice, we are of the view that the release of applicant is imperative in this hour of grief and personal loss. We accordingly release Natasha Narwal on three weeks interim bail," the Court ordered.
Court further directed that Narwal should wear a PPE kit at the time of the cremation.
"She shall surrender before the jail superintendent at the time of expiry of the term and also give RTPCR test report at the time of surrender," it added.
Natasha is presently in judicial custody in the Delhi Riots case under UAPA.
Delhi High Court begins hearing Delhi riots accused Natasha Narwal's plea for interim bail following the death of her father. #NatashaNarwal #COVID19 #DelhiRiots@DelhiPolice pic.twitter.com/QZZihvpjFL
Read the order:
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vil Appeal No. 135 I(N) of 1973.
From the Judgment and Decree dated 14.3.1973 of the Rajasthan High Court in S.B. Civil Second Appeal No. 201 of 1966.
K.K Jain, Pramod Dayal and A.D. Sanget for the Appellant.
U.N. Bachavat, Sushil Kumar Jain, Sudhanshu Atreya and L.C. Agarwala for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This appeal by special leave is from the judgment of the Rajasthan High Court dated March 14, 1973 in S.B. (Civil) 2nd Appeal No. 201of 1966.
The case has a long history.
It is concerned with a garden (baghichi) with temples of Sri Satyanarayanji, Sri Mahadeoji and other buildings at Motidungri Road in Jaipur.
The local Darjees (Tailors) claim that it is their community property.
According to them 359 it is known as 'Baghichi Darjian ' since it belongs to Darji community.
The property however, was the subject matter of several litigations.
It was claimed by different persons at different intervals on different grounds.
One Narayan was admittedly 'Pujari ' of the Temples.
There was allegation that Narayan purported to have sold the Baghichi in favour of one Khawas Bala Bux.
The Panchas of Darjian community filed a suit for cancellation of the sale deed and posses sion of the baghichi.
The suit was also for declaration of the right to administer the trust of the temples and the other properties.
Narayan was the first defendant in that suit.
He did not contest the suit.
He was, however, summoned and his statement was recorded on July 8, 1925, wherein he admitted that he was only the Pujari of the temples.
The other defendants in the suit set up rival title to the property relying upon the sale deed of Samvat 1932 in the name of Raghunath.
The trail court dismissed the suit but on appeal the District Judge decreed it.
That decree was af firmed by the former Chief Court, Jaipur by judgment exhibit A8 dated September 15, 1928.
Thereafter, for about 23 years there was no problem and there was no rival claimant to the property.
But the dispute started after the death of Narayan.
His eldest son Bhonrilal respondent 3 herein, made attempts to get his name mutated in the revenue records as owner of the baghichi.
It appears that Bhonrilal after the death of his father was acting as Pujari of the temples.
The Darjian community authorised Kalyan Singh, the appellant herein, as well as one khawas Suraj Narayan to bring an action for ejectment of Bhonrilal.
In 1951 they instituted a suit for his ejectment.
In that suit Bhonrilal admitted the Panchayat 's right to the baghichi but raised a number of other pleas including his title by adverse possession.
In 1966 the Munsif Court (West Jaipur) decreed the suit in favour of the Darji community.
In 1958 the appeal against that decree was dismissed by the senior civil Judge, Jaipur City.
Bhonrilal preferred Second Apeal No. 8C of 1958 in the High Court of Rajasthan and obtained stay of delivery of possession on depositing mesne profits at Rs.25 per month.
On September 15, 1960, the High Court dismissed the second appeal.
Thus the title of the Darjee community in respect of the baghichi was again recog nised.
Even before disposal of the aforesaid second appeal, Ganga Ram the younger brother of Bhonrilal started another round of litigation.
On December 12, 1959, he brought a declaratory suit claiming that he is owner of the property consisting of baghichi and temples.
In this appeal we are concerned with the fight claimed by him.
The suit was pri marily against the present appellant Kalyan Singh and Suraj 360 Narayan, since deceased.
Bhonrilal was also impleaded as the third defendant.
Ganga Ram based his title to the property under a sale deed dated Baishakh Sudi 12th Samvat 1932 (about 1875 A.D.) and also on a will dated Asaj Sudi 12th Samvat 1973 (about 1916 A.D.).
It was further alleged that the bagichi belonged to Bhagala and Girdhari and they sold the same to Raghunath Brahmin.
Raghunath constructed the temple of Sri Satyanarainji and other buildings.
Raghunath had only one son called Gaurilal and he was issueless.
Garuilal executed a will giving all his properties to Ganga Ram.
It was alleged that the earlier suit against Bhonrilal was collusive between the parties.
With these allegations, Ganga Ram prayed for the following reliefs: "(a) the plaint of the plaintiff be decreed and the plaintiff be declared as the owner of the aforesaid property.
The plaintiff is the owner of the property mentioned in Para No. 1.
The decree which the defendant Nos. 1 and 2 had obtained on 20.8.
1956 against the Defend ant No. 3 and was upheld by the Senior Civil Judge on 6.2.
1958, is null and void against the claim of the plaintiff.
" The appellant the first defendant in the suit denied plaintiff 's title to the baghichi.
He also denied the title of Bhagala and Girdhari.
It was maintained that the baghichi was community property of Darjees and Narayan was only a 'Pujari ' of the temples.
Narayan continued as Pujari till his death in 1950 and thereafter his eldest son Bhonrilal was acting as Pujari.
Reference was made to the judgment of the Chief Court of Jaipur in the first suit against Narayan and judgments in the second suit against Bhonrilal.
In view of those litigations and judgments rendered therein, it was claimed that the present suit was barred by principle of res ]udicata.
It was also specifically stated that the suit against Bhonrilal was not collusive but brought on behalf of the Darjee community in a representative capacity.
The trial Judge on considering the evidence produced by the parties decreed the suit declaring the plaintiff as owner of the suit property.
It was also declared that the plaintiff is not bound by the judgment and decree dated September 15, 1928 of the Chief Court of the erstwhile State of Jaipur.
But no reference was made to the judgment and decree obtained in the suit against Bhonrilal.
No declara tion was given that it was not binding on the plaintiff though that relief was specifically sought for.
Perhaps the plaintiff did not press that point.
Kalyan Singh and Suraj Narayan appealed to the District Court.
The 361 learned District Judge dismissed the appeal.
He also did not refer to the judgment in the suit against Bhonrilal.
He only examined the validity of the said Sale deed and Will and held that they were proved to have been executed.
The de fendants approached the High Court in Second Appeal No. 201/41 Before the High Court, they sought to produce addi tional evidence.
They moved an application under Order 41 Rule 27 C.P.C. to accept a certified copy of the judgment dated September 15, 1928 of the Chief Court of the erstwhile Jaipur State and a copy of the statement of Narayan recorded in that suit.
The High Court accepted the judgment of the Chief Court of Jaipur State, but rejected the Statement of Narayan.
During the pendency of the appeal in the High Court Suraj Narain died and his name was deleted from the appeal memo.
Ganga Ram also died and his wife and son were brought on record as his legal representatives.
The principal question argued before the High Court related to the validity of sale deed (exhibit 3) and will (exhibit 4) which formed the foundation of Gangaram 's title to the suit property.
The High Court rejected both the documents.
The sale deed exhibit 3 was rejected as inadmissible in evi dence.
The will exhibit 4 was disregarded in view of the suspi cious circumstances surrounding its execution.
These conclu sions would have been sufficient for allowing the appeal and dismissing the suit.
But the High Court did not do that and instead rounded off the discussion as follows: "The plaintiff is undoubtedly in possesion of the Baghichi and it cannot be gainsaid that he was not a party to the previous litigation and he is not claiming the property though his father Narayan or his brother Bhonrilal.
Apart from everything, the suit does not seem to have been filed against Kalyan Singh and another in a representative capacity in ac cordance with Order 1 Rule 3 Civil Procedure Code.
There was no application for permission to sue them in their representative capacity.
Therefore, in spite of my having reached the conclusion regarding the document exhibit 3 and 4 against the plaintiff respondents I am not inclined to interfere with the decree of the court below though I do feel that the litiga tion against Kalyan Singh and another in their individual capacity was a fruitless exercise. ' ' 362 Kalyan Singh the defendant has now appealed challenging the decree of the High Court.
Counsel for the appellant has a two fold contention.
In the first place, it was argued that the Darjee community in their representative suit against Bhonrilal has obtained a decree declaring their title to the property and that decree could not be nullified by the present suit against individu als.
The High Court instead of holding that the plaintiffs suit was a fruitless exercise, ought to have dismissed the suit.
Secondly, it was urged that the High Court after discarding the sale deed exhibit 3 and will exhibit 4 ought to have non suited the plaintiff since there is no other material whatever to support his title to the property.
Normally, these contentions would have been accepted without much discussion, but we have to consider the submis sions of counsel for the respondents.
He challenged the correctness of the findings on all material points.
It is, therefore, necessary to examine the judgment in greater detail.
We will first consider whether the previous suit against Bhonrilal was a representative suit on behalf of the Darjee community.
It was argued for the respondents that it was only a suit on behalf of the 'Panchayat Darjian ' and not a representative suit on behalf of the Darjee community.
Our attention was drawn to the trail court order dated November 16.
1962 in the present suit.
Thereunder the trial court has rejected an application for amendment of written statement.
It was observed that the defendants in the affidavit have not denied allegations of the plaintiff that the suit against Bhonrilal was not in a representative capacity.
But the Court made that observation only on perusing the affida vits of parties for a limited purpose of considering the amendment application and not on an issue arising out of pleadings in the suit.
In fact, the court has not framed any issue on that controversy although the defendant in the written statement has asserted that it was a representative suit on behalf of the Darjee community.
The view expressed in the order dated November 1962 is therefore, unacceptable.
Counsel for the appellant however, relied upon state ments from judgments in the previous suit in support of his contention that it was representative suit on behalf of the Darjee community.
exhibit A 2 is the judgment of the trial court.
It begins with a sentence: "This is a representative suit by the plaintiffs Kalyan Singh and Suraj Narayan on behalf of the Panchayat Darjian for recovery of possession of the 363 baghichi.
" But this statement may not help counsel for the appellant, since the suit was said to be on behalf of the 'Panchayat Darjian ' and not Darjee community.
exhibit A 4 is the High court judgment in the second appeal arising out of that suit.
There the High court has stated: "That the suit was brought by Kalyan Singh and another against Bhonrilal by the representatives of Darjee community.
" Here again we do not find much support to the appellant.
The suit might have been instituted by representatives of the Darjee community, but that by itself was not sufficient to constitute the suit as a representative suit.
For a representative suit, the court 's permission under Order 1 Rule 8 of the Code of Civil Procedure is mandatory.
One does not know whether any such permission was obtained.
The pleading in that suit or the order obtained under Order 1 Rule 8 has not been produced.
There is no other evidence to support the contention of either of the parties.
In the absence of necessery material the conclusion one way or the other as to the nature of the previous suit will not be justified.
But that does not mean that the plaintiff could succeed ignoring the judgment and decree in the suit against Bhonri lal.
It must be stated that any member of a community may successfully bring a suit to assert his right in the commu nity property or for protecting such property by seeking removal of encroachments thereform.
Such a suit need not comply with the requirements of Order 1 Rule 8.
The suit against Bhonrilal even if it was not a representative suit on behalf of the Darjee community would be a suit of this category.
Kalyan Singh and another claimed that the baghichi was their community property and Bhonrilal was a trespasser.
They brought the suit to recover possession from Bhonrilal.
The suit was decreed.
The rival title claimed by Bhonrilal by adverse possession was negatived.
So long as that decree operates it would be futile to decree the present suit.
The observation of the High Court that the present suit is a fruitless exercise could therefore, be sustained on this ground if not for the reasons stated.
The validity of the will may now be considered.
On this question, the High Court said: "Having read the evidence of these witnesses I am satisfied that according to the ordinary standard of proving a document the document exhibit 4 can be said to have been proved.
Howev er, there are two disturbing elements sur rounding the execution of the will.
The first striking feature of this will is that even though the wife of Gaurilal was living at 364 the time as she had survived him, no provision whatsoever had been made regarding her by Gaurilal in the alleged will exhibit 4.
Then the second striking feature is that even though litigation had been going on almost for years this will had not been referred to by anyone.
In the first suit Narain was a defendant he had not contested the suit and the proceedings remained ex parte against him.
However, he was called by the Court and his statement was recorded.
The judgment of the Jaipur Chief Court shows that he had laid no claim to the property and took the position that he was a Pujari at the baghichi.
Then subsequently when suit was filed by the Darzi community against Bhonrilal, no reference came to be made to this will exhibit 4 Learned counsel for the re spondents, as I have already observed, sug gested that Narain or Bhonrilal could not be expected to make any reference to the will as that would be detrimental to the stand taken by them.
The argument, no doubt, looks attrac tive, but if it is examined in the light of none other than the statement of Ganga Ram himself it cannot stand the scrutiny.
Gangaram had referred to the earlier litigation in the plait, but when he entered the witnesses box he had taken a somersault.
He was asked wheth er he was aware of the previous litigation and he said, he did not know of it.
He was then questioned with reference to para 5 of the plaint as to how the facts had been mentioned by him therein and he kept mum and had no answer.
He also admitted that it was Narain who had given him the document, exhibit 4 some 5 or 7 years after the death of Gaurilal i.e. some 30 or 35 years back.
In that situation there was no mention of the alleged will in any of the two previous suits.
It is also remarkable that even upto the High Court Bhonrilal had asserted his own possession over the property and had also obtained a stay order on payment of mesne profits vide exhibit A 7.
XXXXX XXXXXX XXXXXXX The will is, therefore, not free from suspi cion and it has not been dispelled.
My con science in this regard is not satisfied and therefore, I am unable to hold that exhibit 4 was the last will of Gaurilal in favour of Ganga Ram".
Counsel for the respondents however, urged that the plain tiff has 365 proved its execution by producing one of the attestors and the scribe and their evidence has not been disbelieved by the High Court.
We were referred, in particular, to the evidence of plaintiff PW 3, Ramdeo PW 4 and Sham Sunder PW 7.
We have perused their testimony and we are of the opinion that it is far from satisfactory.
The plaintiff has deposed that Gaurilal was issueless and hence executed the will bequeathing the property to him.
Ramdeo claims to be the attesting witness to the will.
He has stated that the plain tiff was 10 11 years old when the will was executed.
But the plaintiff himself has deposed that he was then a boy of 2 3 years.
Ramdeo has given his age as 55 years when he deposed in the court on January 5, 1962.
If we go by that age Ramdeo must have been a boy of 9 years when he attested the will in 19 16 Sham Sundar claims to be the scribe of the will.
He has deposed that after he wrote the will attestation was made by witnesses but he has not named any one of them.
He has not even referred to Ramdeo as an attesting witness.
It was said that the plaintiff was adopted son of Gauri lal, and was thus the object of his affection for the exclu sive bequest.
But there is no reference in the will that he was the adopted son.
The plaint also makes no reference to his adoption by Gaurilal.
Nor there is any other material to lend credence to such relationship.
On the contrary, the Temple register shows that he was the son of Narayana.
Even if we proceed on the plea that the plaintiff was adopted son of Gaurilal, there seems to be little reason to justify the bequest exclusively m his favour.
It is now not in dispute that Gaurilal 's wife was living at the time of execution of the will, but no provision was made for her maintenance.
In the normal course, the wife would be the first to be thought of by the husband executing a will.
She should have been the first beneficiary of her husband 's bounty unless there was odium or embittered feelings between them.
But there is no such evidence and it was not even the plaintiff 's case that their relationship was strained.
Why then she should be excluded altogether? It is indeed baf fling since it runs counter to our societal values.
Yet there is another circumstance which tells against the genuineness of the will.
The will purports to have been executed in 1916 and Gangaram instituted the suit in 1959.
The will had not seen the light of the day till the institu tion of the suit.
It is not as if Gangaram or his brother or father had no opportunity to produce the will to assert rights over the property in question.
The plaintiff has stated in his evidence that his father Narayan handed over the will to 366 him.
Narayan was therefore, aware of the execution of the will.
Yet he did not disclose it to the court in the suit against him.
His statement was recorded on July 8, 1925 wherein he had admitted that he was only the Pujari of the temple and the wife of Baldeo sold the property.
He did not say that his son Gangaram became owner of the property under the will executed by Gaurilal.
In ,he second suit, Bhonrilal set up independent title to the property by adverse posses sion.
That claim was totally destructive of Gangaram 's title.
It cannot be said that Gangaram was ignorant of that litigation till he filed the suit.
His evidence does not lead to that inference.
In fact the plaint averments and his statements in the court lead to the contrary.
Gangaram, however, made no attempt to produce the will in that suit.
In the long period of 43 years, none made any attempt to rely upon the will against the claim of the Darji community when the community representatives have successfully brought two suits.
This would not have been the natural conduct of person if the will had been really in existence.
It has been said almost too frequently to require repe tition that a will is one of the most solemn documents known to law.
The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed.
It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will.
It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder.
In order to judge the credibility of witnesses and disengage the truth from false hood the court is not confined only to their testimony and demeanour.
It would be open to the court to consider circum stances brought out in the evidence or which appear from the nature and contents of the documents itself.
It would be also open to the court to look into surrounding circum stances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
In H. Venkatachala lyengar vs B.N. Thimmajamma & Ors., [1959] Supp. 1 SCR 426 Gajendragarkar, J., as he then was, has observed that although the mode of proving a will did not ordinarily differ from that of proving any other docu ment, nonetheless it requires an element of solemnity in the decision on the question as to whether the document pro pounded is proved as the last will and testament of departed testator.
Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfac tion of the court before the will could be accepted as genuine.
Where there are 367 suspicious circumstances, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.
These principles have been reiterated in the subsequent decisions of this Court in Rani Purnima Devi & Anr.
vs V. Kumar Khagendra Narayan Dev & Anr., and Smt.
Indu Bala Bose & Ors.
vs Manindra Chandra Bose & Anr., ; The Privy Council in Mr. Biro vs Atma Ram & Ors., AIR 1937 PC 10 1 had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public.
There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage.
The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his step mother and his paternal aunt.
These women though entitled under the Hindu Law only to mainte nance, were made joint owners equally with the widow of the testator.
None of the devisees could get the estate parti tioned or alienate it for necessity.
It was however, provid ed that the lady, who survived the other three devisees, would become the absolute owner of the estate.
The widow of the testator would not get her husband 's estate, if she predeceased any of her co devisees.
The will was not pro duced until 22 years after its execution though there were occasions to produce it, had it been in existence.
Consider ing these circumstances, the Privy Council observed (at 104): "It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them.
That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed.
But this is not the only circum stances which tells against its genuineness.
The will purports to have been executed on 24th August 1900, and the testator died within a month of that date.
But it is strange that it was not produced until 1922, after the com mencement of the present litigation.
During this long period of 22 years, which inter vened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so . " 368 ,The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator 's wife seems to be unnatural.
It casts a serious doubt on genuine ness of the will.
The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff 's title to the property.
The plaintiff was re quired to remove these suspicious circumstances by placing satisfactory material on record.
He has failed to discharge his duty.
We therefore, concur with the conclusion of the High Court and reject the will as not genuine.
This takes us to the validity of the sale deed exhibit 3.
The High Court rejected the document with the following observations: "exhibit 3 is neither a certified copy given under any of the provisions of the Evidence Act nor is it a copy made from the original by any mechanical process.
It also does not appear to have been made or compared from the original as there is no verification or endorsement of the kind and it does not come under clauses 1 or 5 of section 63 ei ther.
No one has given the oral account of the contents of the original document.
If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by second ary evidence.
But where there is no secondary evidence as contemplated by Section 66 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence.
" The basis of the plaintiff 's title relates back to the sale deed dated Baisakh Sudi 12 Samvat 1932 (1875 A.D.).
It was said to be a registered sale deed by which Bhagala Girdhari purported to have sold the baghichi to Raghunath Brahmin.
The plaintiff has not produced the original sale deed.
Nor a certified copy of it has been produced.
All that we find from the record is an ordinary copy of a sale deed exhibit 3 produced by Gopal Prasad PW 1.
Gopal Prasad has stated that exhibit 3 was a copy submitted by the parties along with the original sale deed for registration.
The original sale deed was said to have been returned to the party after its registration and a copy was kept in the file.
But Gopal Prasad has no personal knowledge about the registration of the sale deed, nor he has produced the register to indicate that that sale deed was registered and a copy was kept in the record.
exhibit 3 produced 369 by him does not bear any endorsement to the effect that it was a true copy of the original.
The High Court said, and in our opinion very rightly, that exhibit 3 could not be regarded as secondary evidence.
Section 63 of the Evidence Act mentions five kinds of sec ondary evidences.
Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents.
Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence.
A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original.
But in the present case exhibit 3 is not a certified copy.
It is just an ordinary copy.
There is also no evidence regarding contents of the original sale deed.
exhibit 3 cannot, therefore, be considered as secondary evidence.
The appellate Court has a right and duty to exclude such evidence.
In the result, the appeal is allowed, modifying the judgment and decree of the High Court.
The judgment and decree of the trial court as affirmed by the District Court are set aside and the plaintiff 's suit is dismissed.
Since the original plaintiff died leaving behind his widow during pendency of the appeal before the High Court, we make no order as to costs.
R.N.J. Appeal allowed.
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This case is concerned with a garden with temples and other buildings at Jaipur claimed to be the property of Darjee (Tailors) community popularly known as 'Bagichi Darjian '.
It was claimed by different persons at different intervals on different grounds.
One Narayan, Pujari on the temples was said to have sold the Bagichi in favour of one Khawas Bala Bux.
Darjee community filed a suit for cancella tion of that sale and declaration of its right to administer the property.
The Trial Court dismissed the suit but on appeal District Judge decreed it and this decree was af firmed by the Chief Court of Jaipur.
But after 23 years on the death of Narayan his eldest son Bhonrilal respondent No. 3 herein who became the Pujari attempted to get his name mutated in revenue records as owner of the Bagichi.
On behalf of the Darjee community the appellant herein together with one Khawas Suraj Narayan filed a suit in 1951 for his ejectment.
This suit was decreed in favour of the Darjee community.
Appeal against that decree by Bhonrilal was dismissed by the Senior Civil Judge, Jaipur.
Second appeal in the High Court too failed.
However, even before the disposal of the aforesaid Second appeal, Gangaram the younger brother of Bhonrilal started another round of litigation.
He filed a declaratory suit claiming the ownership of the Bagichi and temples on the basis of sale deed dated Baishakh Sudi 12th Samvat 1932 (about 1875 A.D.) and a Will purported to be executed in 1916 A.D. in his favour.
357 The Trial Judge decreed the suit in his favour.
The defendants ' appeal was dismissed by the District Judge upholding the validity of the said Sale Deed and the Will.
On further appeal, the High Court rejected the validity of the Sale Deed as well as that of the Will which formed the foundation of Ganga Ram 's title.
But instead of allowing the appeal and dismissing the suit the High Court declined to interfere with the decree of the Court below though holding that the plaintiff 's suit was a fruitless exercise.
Kalyan Singh the defendant challenged the decree of the High Court in this Court on two counts.
Firstly that the suit against Bhonrilal was of a representatives character which could not be nullified by the present suit against individuals.
Secondly the High Court after discarding the Sale Deed and the Will ought to have non suited the plain tiff since there was no other material whatever to support the title.
While allowing the appeal and modifying the judgment and decree of the High Court, this Court, HELD: In the absence of permission under Order I Rule 8 CPC to file a representative suit which is mandatory any member of the community may successfully bring a suit to assert his right in the community property or for protecting such property.
Such a suit need not comply with the require ments of Order I Rule 8 C.P.C. and the suit against Bhonri lal even if it was not a representatives suit on behalf of the Darjee Community would be a suit of this category.
[363D E] It is essential that trust worthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will.
It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder.
In order to judge the credibility of wit nesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour.
It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself.
It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case of reach a proper conclusion on the nature of the evidence adduced by the party.
[366E F] The Will in the instant case, constituting the plaintiff as a sole legatee with no right whatever to the testator 's wife seems to be unnatural.
It casts a serious doubt on the genuineness of the Will.
The Will has not been produced for very many years before the Court or 358 public authorities even though there were occasions to produce it for asserting plaintiff 's title to the property.
The plaintiff was required to remove these suspicious cir cumstances by placing satisfactory material on record.
He has failed to discharge his duty.
This Court concurs with the conclusion of the High Court and rejects the Will as not genuine.
[368A B] Section 63 of the Evidence Act mentions five kinds of secondary evidence.
Clauses (1), (2) and (3) refer to copies of documents; clause (4) refers to counter parts of docu ments and clause (5) refers to oral accounts of the contents of documents.
Correctness of certified copies referred to in clause (1) is presumed under section 79 but that of other copies must be proved by proper evidence.
A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original.
[369B C] H. Venkatachala lyengar vs B.N. Thimmajamma & Ors., [1959] Supp.
I SCR 426; Rani Purnima Devi & Anr.
vs V. Kumar Khagendra Narayan Dev & Anr., ; Smt.
Indu Bala Bose & Ors.
vs Manindra Chandra Bose & Anr., ; and Mst.
Biro vs Atma Ram & Ors., AIR 1937 PC 101.
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Date of decision: 19th April, 2023
Through: Ms. Smi ta Ma an, present in person.
versus
Through: Mr Rakesh Kumar , CGSC with Mr.
Sunil ,Mr. Giriraj Shrama and Mr.
Prince Roshan , Advocate s.
with Mr. Abhishek Khari , Advocate .
Prathiba M. Singh J. (Oral)
1. This hearing has been done through hybr id mode.
2. The present petition has been filed by Petitioner No. 1 /Ms. Smita
Maan and her mi nor son - Vedant Singh Maan /Petitioner No. 2 seeking the
deletio n of the name of the father of the minor child/ Petitioner No. 2 from
his existing passport or in the alternative, the Petitioner seek s re-issuance of
a fresh passport to the minor child/Petitioner No. 2 without mentioning the
name of the father therein .
3. The Petitioner No.1 was married on 9th December, 2012 and
conceived a child/Petitioner no. 2 from the said wedlock. However, th e case
of the Petitioner No. 1 is that the husband had deserted her during the
pregnancy itself i.e. , with effect from 19th Au gust, 2013. The Petitioner
No.2/minor son was there after born on 19th March, 2014 and since then has
been raised by Petitioner No. 1 as a single parent . In terms of the extant
Passport Manual and Regulations, in 2015, Petitioner No. 1 had applied for
a passport for Petitioner no. 2/minor son which was iss ued to him on 23rd
September 2015 bearing no. N3138881. In the said passport, the names of
both the biological father and mother of the minor child were mentioned.
The said passport expired on 22nd Septem ber, 2020.
4. In the meantime, the Petitioner No.1 and her then husband had
entered into a settlement dated 6th February, 2019, in which the following
terms and conditions were agreed upon -
“4. It is agreed between the parties that the
petitioner (Husband ) shall pay lump sum consideration
of Rs. Nil (Nil) to the respo ndent(wife) as full and final
settlement (against the child maintenance towards past
present and future, and petitioner’s past present and
future maintenance, permanent alimony, stridhan etc.)
under the following manner in (NIL) installment
a. That petitioner/respondent (husband/wife) will
pay a sum of Rs. Nil (nil). In form of demand
draft to the petitioner/respondent (husband/wife)
at the time of recording of statement of both the
parties bef ore the Hon’ble family courts under
the first motio n proc eedings .
b. That the petitioner/respondent(Husband/wife)
shall pay Rs. Nil (Nil) to the
petitioner/respondent(Husband/wife) at the time
of recording of statements of both the parties
before the Hon’b le family court on under the
second motion proceedi ngs as full and final
settlement amount in the form of Demand Draft.
Second Motion Petition shall be filed by both the
Parties within 15 days of expiry of mandatory
cooling period of Six months after compl etion of
First Motion or both. The Parties shall fi le an
Applicati on for waiving of mandatory cooling
period after First Motion.
c. It is further agreed between the parties that
the petitioner/respondent(Husband/wife) shall
pay Rs. Nil (Nil) to the
petitio ner/respondent(Husband/wife) at the time
of quashin g of F IR No. 46 2/18 U/S 498A, 406,
34 IPC, P.S. Vasant Kunj North in Hon’ble
Delhi High Court within 30 days after second
motion and petitioner/respondent
(Husband/Wife) shall cooperate and sign all the
necessary affidavits and do the needful in
quashing o f said FIR.
5. It is agreed between the parties that the
petitioner/respondent (Husband/wife) will not have any
right, title, interest, claim etc. whatsoever over in the
properties of petitioner/respondent (Husband/wife)
after the completion of the present compr omise
agreement.
xxx xxx xxx
10. It is agreed between the parties that the minor
child namely Vedant Singh age 5 years will be under
the absolute and exclusive legal custody of the
Respondent (Wife) and the Petitioner (Husband) shall
have no visita tion rights or any access to the child or
any rights to the child or any kind of claim or right in
any form/ manner over the child in all the times to
come present or future. It is further agreed between the
Parties that the child namely Ve dant S ingh will carry
the identity and surname of his Mother /maternal
grandparents. It is understood between the Parties that
the Respondent (Wife) has given up all her claims,
including Stridhan in the l arger interest of the child .
11. It is also agreed by the petition er / husband
that he and his parents shall have no right / title /
claim or Interest in any manner in movable /immovable
Assets / Properties which are held or may be held by
the respondent / wife and /or child in present or in
future. It is furthe r agreed that the respondent /wife
alone shall have all rights to sign all documents,
Government or private in relation to the child as a
single parent.
12. The Respondent (Wife) agrees that if at t he
time of attaining the age of majority or at any stage
thereafte r, the minor son Master Vedant Singh, makes
any claim over the immovable/movable assets and
properties of the Petitioner (Husband), then the
Respondent (Wife) undertakes unequivocally that s he
shall be fully liable and responsible for satisf ying t he
entire claim of Vedant Singh and shall fully indemnify
the Petitioner (Husband ).”
5. As per the above settlement, neither the Petitioner No.1 no r the minor
son were given any payment inc luding al imony, maintenance, etc. The
exclusive custody of the chi ld was to be with the mother . The father of the
child had agreed to have no visitation rights or access to the child or any
claim over the child, in the present or in the near future. The minor child was
also to carry the identity and surname of his mother and maternal
grandparents. The mother also indemnified the father in respect of any
future claims which the m inor child may raise against his biological father.
Thus, in effect the father severed all ties with t he child.
6. This settlement agreement was also approved by the Guardianship
Court in GP N o. 75/18 titled ‘ Arjun S ingh Tokas v. Smita Maan’ passed by
the Principal Judge, Family Court, Patiala House Court on 6th February,
2019. The guardianship petition i tself was disposed of as compromised.
Furthe r, it is subm itted that there is no challenge to the said order.
Thereaf ter, the decree of divorce by mutual consent has also been granted by
the Principal Judge , Family Court, Patiala House Court in HMA Petition
No. 470/19 with effect from 31st May, 2019 between the Petitioner No.1
and her then husband.
7. Post the grant of the divorce decree and the execution of the
settlement agreement, various identity car ds such as Aadhaar card and other
documents have been issued to the minor child /Petitioner No. 2 with only
the name of the mother.
8. Since the passport of Petitioner No. 2 had expired on 22nd September,
2020, the Petitioners had applied for the re -issuan ce of the passport. The
name of the father of Petit ioner No.2 was reflected again in the re -issued
passport bearing no. W8576410 and it is this action of the Passport
Authorities which is under challenge in the present petition.
9. The ma tter has been hear d from time to time. The stand of the
Petitioner N o.1 who appears in person is that since she i s a single pa rent and
the father has completely abandoned the child , this is a case where the name
of the father ought not to be insisted upon by the Passport Au thorities , for
being mentioned in the child ’s passp ort. Ms. Maan relies upon the mutual
settlem ent and the f act that the desertion took place even prior to the birth of
the child.
10. In terms of the Passport Manual which was applicable in 2015, the
name of the father was mentioned in the previously issue d passport.
However, she currently relie s upon Chapter 8, Clause 4.5.1 and Chapter 9,
Clause 4.1 and 4.3 of the Passport Manual, 2020 to argue that all these
clauses make it clear that in the case of a sin gle parent who is divorced or
who has been deserted by the husband, the name of the father need not be
menti oned. The same is also recognized by the Passport Manual itself.
11. Reliance is also placed upon the following judgments:
● Shalu Nigam & Anr. v. Th e Regional Passport Officer & A nr,
[2016 SCC OnLine Del 3023]
● Prerna Katia v. Regional Pass port Office Chand igarh and Anr.,
[2016 SCC OnLine P&H 14187 ]
● Nancy Nithya v. Government of India [Writ Petition No.
22378/2022, decided on 15th December, 2022]
12. On behalf of the Respondent, initia lly, there was s ome confusion as to
the clauses of the Passp ort M anual wh ich would be applicable. Thus, vide
order dated 28th March, 2023, the scanned copies of the Manual s were
directed to be filed /placed on record by th e Passport Authorities.
13. Today, Mr. Rakesh Kuma r, ld. Counsel has placed the relevant
extra cts of the Ma nual on record. Accordin g to Mr. Kumar, the clauses that
would be applicable would be clauses 4.1 and 4.3 of Chapter 9. Ld. Counsel
submits that it is only in the case of single unwed parents that t he name of
the father need not be mentioned. In the case of married pa rents , clause 4.3
would be applicable and thus the name of the father would have to be
mentioned in the passport. He also relies upon t he OM dated 2 8th February,
2023 which according to him clarifies that it is only in the case o f an unwed
parent that the name of the father need not be mentioned.
14. The Court has perused the relevant clauses of the Passport Manual,
2020 which are set out hereinbelow:
xxx xxx xxx
xxx xxx xxx
4.5. Name of parent can be deleted from the passport
of the children consequent to div orce
4.5.1. The online passport application form now
requires the applicant to provide the na me of father or
mother or legal guardian, i.e., only one parent and not
both. This would enable single parents to apply for
passports for their children and to a lso issue passports
where the name of either the fa ther or the mother is not
required to be pri nted at the r equest of the applicant.
xxx xxx xxx
xxx xxx xxx
Exclusion of father/mother na me from passport of
minor in single parent c ustody
4.1. The online passport applica tion form now permits
that an applicant may provide the name of father or
mother or legal guardian, i.e., only one paren t and not
both. This would enable single parents to apply for
passports for thei r children and get passport( s) issued
where the name of either the father or the mother is not
required to be printed at the request of the applicant.
4.2. In case of minor ch ildren of unwed single parent,
the name of father o r mother is not to be mentione d in
the passp ort applicati on and in the passport. In ca se of
unwed parents submitting Appendix -12, name of both
the parents is to be mentioned in the application form
and in the passport.
4.3. In case of minor children of ma rried parents , the
name of fath er/ mother sh all be furnis hed by the other
single parent having the custody of the child,
irrespective of the status of their marriage, such as,
divorced, divorce pending, se parated or deserted, with
or without visitation rig hts to the estranged parent.
Children of divorced pare nts
4.4. Application f rom divorced parents for issue of
passports to their minor children has to be processed
with care and diligence. Whereas the d ivorce of
parents does not result in severance of t he relation
between the child an d the parent , unless the parent has
legally dis owned the child, the child's right to have a
passport and travel abroad cannot be denied on such
grounds. Children also have a fundamental right to
travel and the other parent c annot wilfully prevent
them from travelling abroad . These realities have been
taken into account while processing applications for
passports from children in the custody of single
parents.
4.5. A court dec ree granting divorce would normally
award custody o f the minor child/ children to e ither
parent . The PIA mus t ensure that the application for
the minor's passport is entertained only from such
parent who has been granted custody by the court .
While doing s o, the PIA must also satisfy himself that
the perio d of limitation for appeal again st such decr ee
has expire d before issuing the p assport. PIA must also
ensure that if the other parent has visitation or other
rights on the child as per court order, the con sent of
the other parent is also furnished . However , in rare
cases where one of the parents wil fully refuses to give
consent or in ordinately delays consent or objects in
writing to the PIA against issue of passports to his/her
children residing with other parent without any cogent
reason, and thus denying the fundamental right of the
children to tra vel, passport s may be issued to the
child/children, after receipt of an affidavit in the form
of Annexure 'C' obtained from the parent having the
custody of the children, stating that the other parent is
wilfully denying or not granting permiss ion for issu e of
passport s to the children. The other parent should be
informed in writing in advance by the PIA of the
proposed issue of passport to children at the request of
the parent who is having the custody of the chi ldren. It
will then be the respo nsibility of the other pa rent to
approach the c ourts for suitable redressal.”
15. A pe rusal of the above clauses would show that Chapter 8, clause
4.5.1 relates to the situation which would squarely be applicable in the
present case i.e. where the name of the parent can be delete d consequent to
divorce.
16. According to Mr. Rakesh Kumar, l d. Counsel, this clause ought not to
have been reta ined in the manual when the new manual was published and
only clause 4 of Chapter 9 ought to have been applicable. Either way, even
whether the clauses in Chapter 8 or Chapter 9 are applied , the same would
reveal that the Passport Manual 2020 clearly r ecog nizes several situation s/
conditions where the e xclusion of the name of the father from the minor’s
passport is permissible. Claus e 4.1 itself c learly enables a single parent to
apply for a passport without mentioning the name of the other parent . Clause
4.2 carves out a speci fic category relating to unwed single parents . The
language used in Clause 4.1 is merely single parent . Claus e 4.3 , clearly
mentions that in the case of married parents the name of the father shall be
furnished by the other single paren t having the custody of the child,
irrespective of the status of the marr iage i.e divorce, divorce pending,
separated etc. , Howev er, the mere f urnishing of the name does not result in
the conclusion that t he name of the father has to be compulsorily mentio ned.
It would depend on the circumstances of each case.
17. The OM dated 28th Februa ry 2022 relied upon by the Resp ondent
reads:
“No. VI/401/ 01/17/2015(pt)
Government of India
Ministry of External Affairs
(PSP Division )
Patial a House Annexe , Tilak Marg ,
New Delhi , 28th February , 2023
The Regional Passport Officer
Regional Passport Office, Delhi
Sub: Clarifi cation regardin g issuance of passport
with exclusion of father/mother name from passport
of minor in single parent custody.
Sir.
Please refe r to your letter dated 17.1.2023 seeking
clarification regarding issuance of passport with
exclusion of father/mothe r name from pas sport of
minor in single parent custody, due to ambiguity in
provision of para 4.1 & 4.3 of chapter 9 of the
Passport Manual 2020.
2. The matter has been examined in the Ministry in
consultation with Department of Legal Affairs,
Ministry of Law & Justice a nd the Departm ent has
opined that "No exhaustive definition of the term single
parent may be given". It is further informed t hat an
Inter -ministeria l Committee was formed in 2016 to
look into the passport related issues. The comm ittee
had al so examined the captioned sub ject and had
concluded that in the following cases, it may be said
that the child has a single parent (mother) .
(i) When the mother who is an Indian citizen, claims
that the biological father had no contact with the
mother or t he child after the child's bi rth
(ii)Where the child's father is either unknown, fo r
example a child born after a rape, etc :
(iii)Where the biological father has t erminated the
relationship w ith the mother after conception/ birth of
the ch ild.
3. In view of the above, t he following m ay please be
noted for compliance :
(a) Para 4.1 which enables singl e parents to apply for
passports for their c hildren where the name of either
the father or the mother is not required to be printed,
may be applied in the cases given be low:
(i) When the mo ther who is an Indian citizen, claims
that the biological father had no contact with the
mother or the c hild af ter the child's birth .
(ii)Where the child's father is either unknown, for
example a child born after a rape, etc;
(iii)Where the biological fath er has terminated the
relationship with the mother after conception / birth of
the child .
(iv)Cases where a biol ogical mar ried/unmarried father
who is an Indian citizen claims that the biological
mother has abandoned the child, the procedure as
applicable f or single mother would apply mutatis
mutandis .
(b) Provision of para 4.1 is an enabling provision only
and it h as to be rea d in conjunction with provision of
para 4.3 which mandates furnishing of name of both
the parents if th e minor is born out of
wedlock /marriage even in the cases where divorce has
taken place with or without visitation rights to the
estranged pa rent. Reques ts of issuance of passport
with exclusion of father/mother name from passport of
minor in single parent custody may be dealt with in
accordance with para 4.1, 4.2 & 4.3 of cha pter 9 of the
Passport Manual 2020, as the cas e may be
4. This issues with the ap proval of Joint Secretary
Yours Faithfully,
(Vishwa Nath Goel)
Deputy Secretar y (PSP -I)”
18. Even a perusal of the OM would show that in peculiar cases, where
there is no contact of the father with the m other or the child that the name of
the father need not be included in the passport. Mr. Kumar’s submission that
this O M would only apply to single unwe d parents may not be correc t
inasmuch as the language used in the OM an d in the Passport Manual are
clear. Wherever the term ‘single unwed parent’ is to be mentioned, the
same has specifically been mentioned by the Passpor t Autho rities. In other
clauses th e term `single par ent’ is used.
19. The fact that the name of the single parent can be mentioned without
the name of the other parent is also recognized in the judgments cited above.
The relevant portions of the same are s et out below.
20. In Shalu Nigam & Anr. v. T he Regio nal Passport Officer & A nr
(supra) the Petitioner was divorced and had raised her daughte r as a single
parent since birth . She had contended that the biological father had
abdicated all his responsi bilities towards the daughter since her birth .
Further, the entire record of the daughter including her education al
certificates an d aadhaar ca rd etc. did not bear the name of the fathe r. The
Petitione r sought the reissuance of her da ughter ’s passport witho ut the name
of the biological father. In this background the Court held -
“3. Petiti oner No.1 stated that the respondents
insistence upon petition er No. 2 mentioning her father's
name in the application violated the rights of petitioner
No.2 to determine her name and ide ntity. She pointed
out th at the entire reco rd of petitioner No.2 -daugt her
which included her educational certificates and
Aadhar Car d etc. did not bear the name of her father.
She submitted that if the directions sought for in the
present petition are not issued, the petitioner No .2-
daughter would be compelled to alter her i dentity that
she had been using since her birth as daughter of
petitioner No.1 rather than of her biological father.
According to her, through the malafid e, arbitrary and
discriminatory decision of respondents, petitioner No.2
was being compelled to mentio n the name of her
biological father who had refused to accept her
because she is a female child. She emphasised that
respondents had originally in the yea r 2005 and
subsequently in 2011 issued a Passport without
insisting upon pe titioner No.2's father.
4. Mr. Rajeev Kumar, learned counsel for respondent
No.1 stated t hat th e computerised Passport application
form has a column with regard to father's name und er
the heading 'Family Details'. He stated that the said
form must be fille d by the petitioner No. 2. In support
of his contention, he relied upon Chapter 8, Clause IV
(4.5) of the Passport Manual which reads as under: -
"IV. Parent name not to be deleted f rom
passport consequent to Divor ce
4.5 Request for deleti on of parent name from
passport due to parent s' divorce should not be
accepted. By virtue of the divorce de cree, only
the relation as wife and husband severs. The
divorce decree does not result in se verance of
the relation between the child and the parent,
unless the parent has legally disowned the
child."
xxx xxx xxx
7. Mr. Amit Bansal, le arned Amicus Curiae, pointed
out that in Kavneet Kaur vs. Regional Passport Office,
W.P.(c) 3582/2014 decided on 31st July, 2014 a
Coordinate Benc h of this Court ha d set aside the order
of Minis try of External Affairs, by which the
petitioner's request for inclu ding the name of her step
father as her father in the Passport had been denied.
He sta ted that the Court allowed the s aid writ petition
principally on the gro und that the said request was not
in violation of any provision of the Passport Manual
and f urther on account of the fact that all relevant
documents mentioned the name of her step fat her and
any variance in the Pass port would create conf usion.
8. Mr. Amit Bansal submitted that in Ms. Teesta
Chattoraj vs. Union of India, LPA 357/2012 decided
on 11th Ma y, 2012, a Division Bench of this Court had
held that no rights of a biological father can be
recognized by any Court of law who had failed to
discharge any r esponsibility towards his chil d.
xxx xxx xxx
11. This Court is of the opinion that t he respondents
can insist upon the name of the biological father in the
Passport only if it is a requirement in law, l ike
standing instructi ons, manuals etc. In the absence of
any provisio n making it mandatory to mention the
name of one's biological father in the Passport, the
respondents cannot insist upon the same.
xxx xxx xxx
13. In fact, a Coordinate B ench of this Court in
Ishmaan Vs. Region al Passport Office, W.P.(C)
5100/2010 decided on 21st February, 2011 directed
issuance of a passpo rt to an applicant without
mentioning her father's name on the ground that the
instructions issued by the respondent i tself permitted
mentio ning of only mothe r's name in the passport. The
relevant portion of the said orde r is reproduced
hereinbelow: -
"4. The Respondents have themselves enclosed
another set of instructions in a reference letter
(Annexure R -2) issued on 21 st April 1999. Clause
3.2(a) thereof rea ds as under: -
"3.2 Child born out of wedlock or child having
single parent (Reference letter No.
V.I/402/2/1/97 dated 21.4.1999).
a) Cases where: (i) the mother who is an Indian
citizen, claims that the biological fa ther had no
contact wi th the mother or t he child after the
child's bir th; or where (ii) the child's fat her is
either unknown (for ex ample a child born after
a rape etc.) or (iii) has terminated the
relationship with the mother after conception.
In these ca ses, the PIA should ob tain an
affidavit from the mother to that effect sworn
before a magistrate (Appen dix 23). In these
cases, the name o f the father should be left
blank and should not be entered in the passport
without his written consent. As admission by a
woman of the birt h of a child out o f wedlock
invites social stigm a, it may be presumed that
rarely would she utter a lie in thi s rega rd.
However, to safeguard against cases of
abduction/kidnapping, the PIA should insist on
the affidavit of the mother being supported by a
birth certificate f rom a hospital or the
Registra r of Births and Deaths or a
munic ipality."
5. It is plain that as fa r as the present case is
concerned, with the decree of mutual divorce having
been passed by the competent civil court in 2007 itself,
the ca se of the Petition er would be covered under
Clau se 3.2(a) of the above instructio ns dated 21st April
6. The Pe titioner's mother should now produce before
the Regional Passport Officer ('RPO') an affidavit
sworn by her before the Magistrate in terms o f Clause
3.2(a) wi thin a period of two weeks. Th e said affidavit
will also incorp orate the necessary assertion that the
Petitioner's mother will inform the RPO in the event
she proposes to remarry. If such an affidavit is
furnished, t hen the RPO will ensur e that the name of
the father in the passport of the Petitioner is left blank.
The necessary correction in the passp ort be made
within a further period of two weeks after the said
affidavit is furnished."
14. The present respondents o n 20th February, 2015 in
W.P.(C) 845/201 5, Priyanshi Chandra Vs. Regio nal
Passport Office had, on instr uctions, stated before a
Coor dinate Bench of this Court that the request of the
applicant, to issue her a fresh passport, without
mentioning her father's name would be granted if she
produces a n affidavit in terms of Clause 3.2(a) of the
Instructions conta ined in letter dated 21st Apr il, 19 99.
15. In the opinion of this Court, the judgment of
Madras High Court in Mrs. B.S. Deepa (supra) offers
no assistanc e to the respondents. Firstly, the issue
involved in the aforesaid Mad ras High Court judgment
was the v alidity of the adoption deed on the basis of
which the petitioner had sought a direction to
respondents to mention the name of her adoptive father
as fat her's name in the pass port. In the prese nt case,
the petitioner no. 2 does not want to mention her
father's name at all in her passp ort. S econdly, the
Madras High Court keeping in view the evolving
societal norms relating to divorce, remarriage, single
parents etc. directed the respondents to me ntion the
name of the step fat her of the applicant on her passp ort
instead of her biological fathe r's name. Thirdly,
Madras High Court after detailed discussion on the
requirement and insistence upon by the responden ts on
mentioning fathe r's name in a pers on's passport had
directed the Ministry of External Affairs to incorporate
suitable provisio n in t he passport manual making it
optional for the parties to indicate the names of one or
more biological parent in the sa id form. Consequently,
the respondents w ere in essence directed by the
Madras High Court to reconsider their requirement of
making i t mand atory for the applicants to mention the
name of their biological father in their application
form for issuance of pass ports. ”
21. Similarl y in Prerna Katia v. Regional Passpo rt Office Chandigarh
and Anr. (supra) the P&H High Court held :
“3. After notice, the respondents have filed reply
in which it is averred that request of the petitioner was
referred to t he Ministry of External Affairs, Ne w Delhi
and were a dvised vide its l etter dated 30.09.2015 to
process her c ase in terms of the provision s of
Paragraph 4.5 of Chapter 8 of the Passport Manual,
2010 (hereinafter referred to as the “Paragraph 4.5”),
which i s reproduced as under: -
“IV. Parent name not to be de leted from
passpo rt consequent to Divorce :
Paragraph 4.5 - Request for deletion of par ent
name from passport due to parents' divorce
should not be accepted. By virtue of the divorce
decree, only the relat ion as wife and husband
severs. The divorce decree do es not result in
severance of the relation between the c hild and
the parent, unless t he par ent has legally
disowned the child.”
4. Counsel for the petitioner has submitted that after
the divorce on the b asis of a settlement between the
parties, in which th ey have also agre ed that the
daughter of the petitioner shall retain sur -name of her
mother instead of the sur -name of her father, the
provisions of Paragraph 4.5 is not at all applicable
and in this reg ard, reliance has been placed upon a
decision of the Supreme Court in the case of ABC vs.
The State (NCT of D elhi), 2015(3) R.C.R. (Civil) 766
and a judgment of the Delhi High Court in the case of
Shalu Nigam and another vs. The Regional Passport
Officer a nd another, W.P.(C) No.155 of 2016, decided
on 17.05. 2016.
7. In this case, husband of the petitioner has vir tually
disowned his daughter as in the settlement , he did not
ask for her custody or even visiting rights and agreed
that the petitioner would cont inue to have custody of
her minor d aughter without an y kind of his int erference
or his family members in futu re. He also paid full and
final amo unt towards maintenance of his daughter in
one go while paying the maintenance/alimony to his
wife/petitioner an d agreed that after the settlement, his
daughter shal l not be known as Addvita Garg but as
Addvita Katia.
8. From these facts and circumst ances, it is very much
clear that husband of the petitioner has disowned his
daughter legally by way of a settlement b efore the
Court of law which has be come part of the o rder
passed in th e appeal filed by the petitioner. Besid es
this, the decision of the Delhi High Court in Shalu
Nigam's case (supra) deals with the provisions of
Paragraph 4.5, in which it has been held t hat the
respondents can insist upon the name of the b iological
father in the passport only if it is a require ment in law
but in the absenc e of a ny provisions making it
mandatory to mention the name of one's biological
father in the passport, the respondent s cannot insist
upon the same. It i s further held tha t the mother's na me
is sufficient in the passport in cas e of single woman
who can be a natu ral guardian and also a parent. In
this regard, the Court had taken judicial notice of the
fact that families of single parents are on the increase
due to various re asons like unwed mothers, sex
workers, surrogate mothers , rape survivors, children
abandone d by father and also children born through
IVF technology.
9. Thus, keeping in view the aforesaid facts and
circumstances especially the fact that the provision of
Paragraph 4.5, ref erred to above, rather helps the
petiti oner because it provides that name of the parent
can be deleted if the parent has legally disowned the
child, which has been proved on record on th e basis of
the terms and conditions of the settlement and the
observat ions made in Shalu Nigam's case (supra) .
10. Consequently, the prese nt pet ition is hereby
allowed and the respondents are directed to make
necessary correction in sur -name of the daughte r of the
petitioner from Addvita Ga rg to Addvita Kati a and
also to del ete the name of her biological father i .e.
Dhruv Garg from her passp ort as Addvita Katia is now
the daughter of a single parent i.e. her mother Prerna
Katia. The necessary correction sha ll be carried out
within a period o f one month from t he date of
presen tation of certified copy of this order. “
22. In Nancy Nithya v. Governmen t of India (supra) are extracted herein
below:
“12. The Rules are framed by the Central
Government in terms of Section 24 of the Act.
Therefore, t hey are part o f the statute and are
statutory. The Passport Manual are guidelines to issue
a passport are a so lution to answer circumstances that
would emerge, but, cannot run counter to the statute,
as they are not statutes. Therefore, the 2nd respondent
will have to c onsider the application of the petitioner
in terms of the Rules and seek any document or
clarifi cation from the parent in terms of the Rules and
not in terms of the Passport Manual.
13. Therefore, it is necessary for the Central
Government to bring in such amendment to the Rules,
if it wants the situation emerged in the Ma nual to be
tackled with, fai ling which, rejecting passports relying
on the Manual particularly, in the case of passpor t of
minors, would be rendered unsustainable as they
would suffer from want of tenability. Since the Rules
themselves envisage situation o f the kind that has
emerged in the case at hand, the reliance being placed
on the Manual which runs counter to the Rul es sans
countenance.”
23. In all the three decisions qu oted above, the biological father had in
effect diso wned the child and had severed all ties with the child. Irrespective
of the fact that the applicable clauses in the Manual may be d ifferent, the
spirit behind the said decisions is cle ar, i.e., that under certain circumsta nces
the name of the biological father can be deleted and the sur name can also be
changed. Both the Passport Manual and the OM relied upon by the
Respond ents recognise that passports can be issued under varying
circumstances without the name of the father. Such a relief ought to be
considered, depending upon the factual position emerging in each case. No
hard and fast rule can be a pplied. There are myriad situations in the case of
matrimonial discord between parents, where the child ’s pass port appl ication
may have to be considered b y the authorities. Such situatio ns incl ude –
• divorce with sole custody and mere visitation;
• divorce with joint custody and visitation;
• divorce with sole custody and no visitation;
• divorce with complete disowning of the child;
• divorce with some rights being g iven to the child;
• divorce between t he couple but rights vesting in either side ’s
grand parents;
• Separation with divorce pending and visitation issues pending in
Court;
• Desertion by either parent;
• Divorce o r Se paration with cond itions relating to subsequen t
marriages which may alter the relat ionship with the child;
• Legal disowning of the child by either parent;
• Situations where the couple are in different countr ies and an attempt
is made to remove the child from a jurisdiction ;
The situations set out above are not exhaustive but are illustrative to show
how the passport applications of minors may ha ve to be considered and
examined under varying circumstanc es. The Manual merely contemplates
some of the situations and provides for cer tain mechanisms. However, the
need for flexibility exists dependi ng upon the fact situation. A thorough
examination and understanding of court orders may also be required .
24. In this backdrop, the Court notes that the facts of the pre sent case are
quite peculiar. As per the settleme nt which has been entered into by th e
biolo gical father and the mother/ Petitioner No. 1 , the father has given up all
rights , if any , towards the child. There is no visitation . The child has also not
been bro ught up by the fathe r. Moreover, the fact that th e minor son is also
using the surnam e of the mother and the maternal grandparents, itself shows
that the father does not wish to have any concern or relationshi p with the
child. No maintenance or alim ony has also been paid to t he Petitioners in
this case. In fact, this would be a case where the father has completel y
deserted the child. Under such circumstances, this Court is of the opinion
that Clause 4.5.1 of Chapter 8 and Clause 4.1 of Chapter 9 would clear ly be
applicable.
25. In the unique and peculiar circumstances of this case, it is ac cordingly
directed tha t the name of the father of Petitioner No.2 be deleted from the
passport and the passport be re -issued in favour of th e minor child without
the name of the father . Needl ess to add that thi s order shall not be treated as
a precedent.
26. The Petitioner No. 1 along with her son may appear before the
Regional Passport Office, Delhi and surrender the passport which has
alread y been i ssued along with the ce rtified copy of this order. Let the new
passport be issued without the na me of the fa ther within one week thereafter.
27. The petition is accordingly disposed of in these terms. All pending
applications are also disposed of.
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The Delhi High Court recently ordered the passport authority to delete the name of the biological father from a minor child’s passport noting that the man had deserted the child even before he was born and had given up all his rights.
Justice Prathiba M Singh said that under certain circumstances the name of the biological father can be deleted from the passport and the surname can also be changed.
“Such a relief ought to be considered, depending upon the factual position emerging in each case. No hard and fast rule can be applied. There are myriad situations in the case of matrimonial discord between parents, where the child’s passport application may have to be considered by the authorities,” the court said.
The court said that the Passport Manual 2020 and the Office Memorandum (OM) issued by the Ministry of External Affairs in February 2022 recognise several situations where the exclusion of the name of father from a minor's passport is permissible.
It rejected the argument that the OM would apply only to single unwed parents.
“Passport Manual 2020 clearly recognizes several situations/ conditions where the exclusion of the name of the father from the minor’s passport is permissible. Clause 4.1 itself clearly enables a single parent to apply for a passport without mentioning the name of the other parent. Clause 4.2 carves out a specific category relating to unwed single parents," the bench said.
It further noted that the language used in clause 4.1 is merely single parent.
"Clause 4.3, clearly mentions that in the case of married parents the name of the father shall be furnished by the other single parent having the custody of the child, irrespective of the status of the marriage i.e divorce, divorce pending, separated etc., However, the mere furnishing of the name does not result in the conclusion that the name of the father has to be compulsorily mentioned. It would depend on the circumstances of each case,” the court said.
The court was dealing with a plea filed by a single-mother and her minor child seeking deletion of the name of the biological father from the passport of the latter.
It was stated that the father had deserted the woman during her pregnancy. The settlement between the two revealed that the neither the woman nor the son were given any alimony or maintenance and the exclusive custody of child was to be with the mother.
After considering the case, the bench said that the facts in the case were quite peculiar and, therefore, Clause 4.5.1 of Chapter 8 and Clause 4.1 of Chapter 9 would be applicable here.
“In the unique and peculiar circumstances of this case, it is accordingly directed that the name of the father of Petitioner No.2 (child) be deleted from the passport and the passport be re-issued in favour of the minor child without the name of the father,” the Court finally ordered.
Justice Singh, however, clarified that this order shall not be treated as a precedent.
Smita Maan, the petitioner, appeared in person.
Central Government Standing Counsel (CGSC) Rakesh Kumar along with advocates Sunil,Mr. Giriraj Shrama and Prince Roshan appeared for the Central government
The Delhi government was represented through its Additional Standing Counsel Mehak Nakra and Abhishek Khari.
|
+ W.P.(C) 6726/2019 & CM Appl s. 28266/2019 , 47351/2019
Through Mr. Chander Mani Grover, Advocate
versus
Through Ms. Avnish Ahlawat, Standing
Counsel for NCT of Delhi (Services)
with Mrs. Tania Ahlawat, Mr. Nitesh
Kumar Singh and Ms. Palak
Rohmetra, Advocates
Mr. Kanwal Jeet Arora, Member
Secretary, DSLSA with Ms. Meghna
Nimbekar, LCCR A
1. The Govt. of NCT of Delhi has deposited Rs.22,38,985/ - with the
Registrar General of this Court. The Registrar General is directed to disburse
the aforesaid amount along with interest a ccrued thereon to the two minor
children namely Master Lavish and Baby Lavanya by instructing UCO
Bank, Delhi High Court branch to transfer the aforesaid amount in equal
shares to the petitioners savings bank accounts with UCO Bank, Karnal
Branch as per th e particulars given herein below:
(i) Account No.03360110055595 of Master Lavish with UCO Bank,
Karnal Branch, IFSC Code: UCBA0000336 .
(ii) Account No.03360110055601 of Baby Lavan ya with UCO Bank,
Karnal Branch, IFSC Code; UCBA0000336 .
2. UCO Bank, Karnal branch is d irected to keep the aforesaid amount in
fixed deposit with cumulative interest in the name of two minor children till
they attain majority.
3. The petitioners are entitled to the family pension in respect of their
late mother. Vide order dated 17th July, 201 9, the Government of NCT of
Delhi was directed to deposit the pension with this Court. However, the
pension has not yet been deposited with this Court. The order dated 17th
July, 2019 is recalled and the department is directed to deposit the entire
arrears of the pension as well as future monthly pension in the savings bank
accounts of the two minor children as mentioned in para 1 above.
4. Two minor petitioners are living with their maternal grandfather who
was appointed as their guardian vide order dated 17th July, 2019 .
5. Mr. Kanwal Jeet Arora, Member Secretary, DSLSA and Ms. Avnish
Ahlawat, Advocate are appointed as Amici Curiae to look into welfare of the
two minor children. Mr. Kanwal Jeet Arora, Member Secretary, DSLSA
shall take up the matter with Distri ct Legal Services Authority, Karnal for
the welfare of the two minor children. Mr. Chander Mani Grover, Advocate
for the petitioner submits that he shall continue to assist the minor children
and look into their welfare.
6. Mr. Kanwal Jeet Arora, Member Secre tary, DSLSA, present in Court
through video conference submits that he has taken up the matter with
District Legal Services Authority, Karnal who has verified that both the
minor children are being well taken care of by their maternal grandfather . As
per t he said report, Rs.15,000/ - per month is sufficient to take care for the
upkeep, welfare and future needs of the two minor children. The report of
DSLSA has been placed on record. The report of Delhi Legal Services
Authority is hereby accepted.
7. Mr. Attar S ingh, maternal grandfather and guardian of the petitioners
is permitted to withdraw upto Rs.15,000/ - per month from the pension
account of the two minor children for the upkeep, welfare and future needs
of the two minor children and the remaining amount shall remain in the
petitioners bank account .
8. Learned counsel for the petitioner submits that the petitioners’ mother
had taken a home loan from Andhra Bank and the unpaid loan is to the tune
of about Rs.15,00,000/ -. Ms. Avnish Ahlawat, learned Amicus Curiae
suggests that it would be appropriate in the interest of the petitioners to
negotiate the repayment of the loan and the balance amount can be paid in
instalment s out of the pension account of the minor petitioners or from the
rent. It is further suggeste d that the flat in Rohini in the name of the
petitioners be let out and the rent be directly paid to the Andhra Bank
against the loan amount.
9. Mr. Kanwal Jeet Arora, Member Secretary, DSLSA, shall convene a
meeting with the petitioners’ grandfather and the officials of Andhra Bank
for settlement of the loan account and for repayment of the settlement
amount in instalment s from the pension account of the minor petitioners or
from the rent amount. Let the needful be done within six weeks.
10. This Court appreciate s the assistance rendered by Mr. Kanwal Jeet
Arora, Member Secretary, DSLSA, as well as Ms. Jasmeet Kaur, Secretary,
District Legal Services Authority, Karnal. Learned officer shall continue to
ensure the welfare of the two minor children till they attai n majority.
11. This writ petition is disposed of in terms of the orders passed by this
Court including today’s order .
12. List for reporting compliance on 18th August, 2021.
|
The Delhi High Court on Thursday awarded compensation of Rs 15,000 per month to a pair of two-year-old twins who lost their mother due to postpartum complications [Master Lavish & Ors v. Government of NCT Delhi & Ors].
Justice JR Midha passed the order in a writ petition filed on behalf of the twins through their maternal grandfather, Attar Singh. The Delhi High Court ordered,
"The Court awards pension to two minor petitioners being looked after by their maternal grandfather. The District Legal Services Authority, Karnal will also take strict action.
Moreover, 15,000 Rupees per month is sufficient to take care of needs of children. Attar Singh, the maternal grandfather of the children can withdraw up to 15,000 Rupees a month, from the pension reserved for the minor children. The remaining amount is to remain in the petitioner's bank account."
The matter will be heard next on August 18, 2021.
By way of background, in 2017, the deceased mother of the children was working as a nurse in a government hospital in Delhi where she met Sanjay Kumar, whom she was to marry.
Shortly thereafter, the two of them tied the knot and she gave birth to the two twins. However, within a few days of giving birth, she developed postpartum complications and breathed her last.
Following this, the father of the twins shirked all responsibility of looking after them and left them in the care of their maternal grandfather. He also tried to avail all the service benefits, movable and immovable properties of his deceased wife, claiming to be her only legal heir.
The children's grandfather had filed a complaint with the Child Welfare Committee Tribunal in Karnal, to no avail. He was thus prompted to approach the Delhi High Court for relief.
Senior Advocate SK Ahluwalia and Advocate Chander Mani Grover appeared for the petitioners. Additional Standing Counsel Avnish Ahlawat appeared for the Government of NCT, Delhi.
|
Criminal Revision No.535 of 2023
Manoj Kumar @ Manoj Sao, son of Deoki Sao, resident of Village & P.O.
Jamu, P.S. Markacho, District Koderma, Jharkhand . ..... …... Petitioner
Versus
1. The State of Jharkhand
2. Deoki Sao, son of Late Bodhi Sao, resident of Village & P.O. Jamu, P.S.
Markacho, District Koderma, Jharkhand ….. …. Opposite Parties
For the Petitioner : Mr. Bharat Kumar, Advocate
For the State : Mr. Shashi Kumar Verma, APP
For the O.P. No.2 : Mr. Abhilash Kumar, Advocate
C.A.V. on: 30/11/2023 Pronounced on:05/01/2024
1. This Criminal Revision has been preferred against the impugned order
dated 15.03.2023 passed by the learned Principal Judge, Family Court,
Koderma in Original Maintenance Case No.11 of 2022, whereby the learned
Court below has allowed the application under Section 125 of the Code of
Criminal Procedure directing the petitioner to pay the maintenance amount
of Rs.3000/- to the opposite party No.2-father.
2. The brief facts leading to this Criminal Revision are that the
maintenance application under Section 125 of the Code of Criminal
Procedure was moved on behalf of the father against his younger son with
these averments that he is old person having two sons, namely, Pradip
Kumar and Manoj Kumar. His younger son, namely, Manoj Kumar is
quarrelsome, cruelsome and manhandling person. Applicant i.e. Deoki Sao
had transferred his land to his both sons on 21.02.1994 comprising total area
of 3.983/5 acres and the same was divided to both the sons equally and both
have been cultivating the same. His elder son Pradip Kumar is maintaining
him while Manoj Kumar, his younger son has not been maintaining him
rather hurling abuse used to insult and assault him. His son Manoj Kumar is
also carrying on a shop in the village itself and has been earning Rs.50,000/-
per month and he has also income of Rs.2,00,000/- per annum from the
agricultural land. On 02.11.2021, he assaulted and injured him, whereby he
was treated by Dr. Daljeet Singh. Therefore, claimed the maintenance
amount of Rs.10,000/- per month from the opposite party-Manoj Kumar.
3. On behalf of the opposite party-Manoj Kumar, the reply of show
cause was given with these averments that the petitioner is his father. He is
habitual litigant of the society and several cases are being litigated by him in
different Courts of Koderma. He was going to sell his ancestral property, the
same was opposed by the opposite party, whereby he become annoyed and
also threatened him to teach lesson. The opposite party No.2 started to
torture him in collusion with his another son Pradip Kumar and filed several
cases against him. The petitioner is money minded has so many sources of
income and with a view to harass the opposite party, the present maintenance
application has been filed. In view of the above, prayed to dismiss the
maintenance application.
4. On behalf of the petitioner in oral evidence examined P.W.-1, Pradip
Kumar; P.W.-2, Vakil Sao and; P.W.-3, Deoki Sao, the petitioner himself.
5. On behalf of the opposite party in oral evidence examined O.P.W.-1,
Gudia Devi; O.P.W.-2, Arjun Sao and: O.P.W.-3, Manoj Kumar.
6. The learned trial Court after hearing the rival submissions of the
learned counsel for the parties passed the impugned judgment on 15.03.2023
allowed the maintenance application and directed to the opposite party No.2
to pay the maintenance amount of Rs.3000/- per month to the petitioner (his
father) from the date of application i.e. on 15.02.2022. The arrear of
maintenance amount was directed to be paid within two months.
7. Aggrieved from the impugned judgment, the instant Criminal
Revision has been preferred on behalf of the petitioner-younger son on the
grounds that the impugned order passed by the learned Court below is bad in
the eyes of law. The maintenance amount awarded by the learned Court
below is not in proportion to the income of the son. No affidavit was filed on
behalf of the petitioner making disclosure in regard to his assets and
liabilities just to enable the Court to reach on the proper conclusion. From
the deposition of the witnesses itself, it is evident that the father of the
petitioner has been earning his livelihood from the agriculture and bricks
kiln. The learned Court below failed to appreciate the evidence in proper
perspective. In view of the above, prayed to allow this Criminal Revision
and set aside the impugned judgment passed by the learned Court below.
8. I have heard the learned counsel for the parties and perused the
materials available on record.
9. For disposal of this Criminal Revision following point of
determination are being framed:
(1) Whether the finding recorded by the learned Court below on the
point of determination whether the father is unable to maintain
himself and the son has been neglecting to maintain his father is
based on proper appreciation of evidence?
(2) Whether the quantum of the maintenance is itself proportionate
in view of the income and liability of the son, the petitioner herein?
10. In maintenance application, the father P.W.-3, Deoki Sao has stated that
he is a old age person. He has two sons, namely, Pradip Kumar (Elder son) and
Manoj Kumar (Younger Son, the petitioner herein) and he has been residing
with his elder son Pradip Kumar, who looks after him while his younger son
Manoj Kumar has been neglecting to maintain him. His son Manoj Sao
humiliates by hurling abuse and assaulting him as well. He has no source of
income of his own because the agricultural land, which was ancestral
property, has been transferred by him to his both sons equally.
10.2 On behalf of the opposite party-Manoj Kumar, it has been contended
that he has not been neglecting to maintain his father. His father has own
independent income. He has earning from agricultural land and bricks kiln
as well. He is able to maintain himself. He was bent upon to transfer the
ancestral properties, on being opposed by him, he got annoyed and filed the
maintenance application in order to harass.
11. On these points of determination on behalf of the petitioner, examined
three witnesses, which are reproduced hereinbelow:
11.1 P.W.-1, Pradip Kumar, who is the elder son, in his examination-in-
chief, says that his father Deoki Sao is a good person. His brother Manoj
Kumar is quarrelsome and manhandling person. He does not maintain his
father. His brother Manoj Sao also carries on a shop in the village itself,
from which, he earns Rs.50-60 thousands per month and has Rs.2,00,000/-
annual income from the agricultural land. In cross-examination, this witness
says that he is elder of the Deoki Sao. His father had four acres of
agricultural land, same has been divided by him in three parts. Less than one
and half acre is with his father, which is being cultivated by his father. His
father lives with him and he also maintains him. The land was divided in the
year 1994 again in the year 2007. Manoj Sao is his younger brother has
carries on a grocery shop in the village, from which, he earns Rs.40-50
thousands per month. He also carries on grocery shop in the village but his
income is less than to him. He earns Rs.20-25 thousands per month. Manoj
Sao has one son and one daughter.
11.2 P.W.-2, Vakil Sao , in his examination-in-chief, says that Majoj Sao is
quarrelsome and manhandling person. He hurls abuse and assault to his
father Deoki Sao. He does not maintain his father. Majoj Sao also carries on
shop in the village, from which, earns Rs.40-50 thousand per month. In
cross-examination, this witness says that two acres of land was given to
Manoj Sao by his father, which is being cultivated by Manoj Sao. Deoki
Sao does nothing rather resides at the house. Manoj Sao also carries on
a shop.
11.3. P.W.-3, Deoki Sao , who is the father, in his examination-in-chief, says
that his younger son Manoj Sao does not maintain him. He has two sons.
In the year 1994, he had divided his agricultural land between his two
sons equally, which is being cultivated by them. His son Manoj Sao also
carries on grocery shop and earns Rs.50,000/- per month . In cross-
examination, this witness says that he has two sons and four daughters.
Manoj Sao has been residing separate for last 15-16 years. Two acres of
agricultural land each was given to his sons by him. Some land was kept
with him. His elder son has been maintaining him for last 15 years . He
has no agricultural land for him.
12. On behalf of the opposite party examined, O.P.W.-1, Gudia Devi .
This witness in his her examination-in-chief says that Deoki Sao is her
father-in-law. Her father-in-law does business of bricks kiln and earns Rs.40-
50 thousand per month. He also earns Rs.5,000/- per month from the rent of
the house. In cross-examination, this witness says that her husband carries
on grocery shop in the village and earns Rs.10,000/- per month .
12.1 O.P.W.-2, Arjun Sao , in his examination-in-chief, says that Deoki
Sao carries business of bricks kiln and also cultivating agricultural land. He
has own business. He also gets rent from the two houses. He has good
income. In cross-examination, this witness says that Manoj Sao also drives
Auto, from which, how much he earns, he is not aware. Manoj Sao also
has a grocery shop in the village . All the four daughters of Deoki Sao have
got married.
12.3 O.P.W.-3, Manoj Kumar, in his examination-in-chief, says that he is
younger son of Deoki Sao. His father carries business of bricks kiln and also
sales vegetables. He earns Rs.50-60 thousand per month. In cross-
examination, this witness says that he does cultivating on agricultural
land. He also carries on a shop in the village. His father had built a
house comprising therein 24 rooms out of which, 12 rooms were given to
younger son Manoj Sao and 12 rooms were given to his elder brother
Pradip Sao and he resides in the very house along with his family and
his shop also carries on in the very house . It is wrong to say that he has
not maintained his father.
13. From the evidence adduced on behalf of both the parties in support of
the pleadings, it is proved that the father Deoki Sao is a senior citizen aged
about 60 years old. He has two sons. He has been residing with his elder son
Pradip Sao; while his younger son Manoj Sao has been residing separately
for more than last 15 years. In the year 1994, he had given two acres of land
each to his both sons equally, in which, Manoj Sao has been cultivating and
earning from the same. The father and his elder son both have stated that his
father does nothing rather he lives with his elder son and is being maintained
by his elder son not by younger son Manoj Sao.
14. So far as the evidence adduced on behalf of the opposite parties are
concerned, the same is out of the pleadings. In the reply of show cause
notice, Manoj Saw has nowhere stated that his father has brick kiln rather he
stated that he earns from the agricultural land. Neither the son Manoj
Kumar nor the witness adduced on his behalf has stated that Manoj Sao
has been maintaining his father rather it is admitted to all the witnesses
and Manoj Saw as well that his father has given two acres land to him,
in which, he cultivates. The house, which fell in his share and in which,
Manoj Sao resides, admittedly, as per the statement of Manoj Sao, the
same was built by his father comprising therein 12 room, in which, he
resides and has been running shop of grocery .
15. From the evidence adduced on behalf of both the parties, it is
found that father has given the agricultural land as well as the Aabadi
property in equal share to his both the sons. He has been residing with
his elder son and his younger son has not been maintaining him.
16. Herein, it would be relevant to give certain quotations from the
scriptures to show the importance of the parents , which is reproduced
hereinbelow:
“In veneration, the Preceptor excels ten
Sub-teachers; the Father a hundred
preceptors, and the Mother a thousand
Fathers.”
16.1. In Mahabharat, the Yaksh asked to Yudhisthira:
“What is weightier than the earth itself?
What is higher than the heavens? What is
fleeter than the wind? And what is more
numerous than grass?
The Yudhisthira answered:
‘the mother is weightier than the earth; the
father is higher than the heaven; the mind
is fleeter than the wind; and our thoughts
are more numerous than grass.’
17. The Hon’ble Supreme Court in the case of Badshah Vs. Urmila
Badshah Godge and another reported in (2014) 1 SCC 188 has held at
paragraph Nos.14 and 15 as under:
“14. Of late, in this very direction, it is emphasised that the
courts have to adopt different approaches in “social justice
adjudication”, which is also known as “social context
adjudication” as mere “adversarial approach” may not be
very appropriate. There are number of social justice
legislations giving special protection and benefits to
vulnerable groups in the society. Prof. Madhava Menon
describes it eloquently:
“It is, therefore, respectfully submitted that ‘social context
judging’ is essentially the application of equality
jurisprudence as evolved by Parliament and the Supreme
Court in myriad situations presented before courts where
unequal parties are pitted in adversarial proceedings and
where courts are called upon to dispense equal justice.
Apart from the social-economic inequalities accentuating
the disabilities of the poor in an unequal fight, the
adversarial process itself operates to the disadvantage of
the weaker party. In such a situation, the Judge has to be
not only sensitive to the inequalities of parties involved but
also positively inclined to the weaker party if the imbalance
were not to result in miscarriage of justice. This result is
achieved by what we call social context judging or social
justice adjudication.”
15. The provision of maintenance would definitely fall in this
category which aims at empowering the destitute and achieving
social justice or equality and dignity of the individual. While dealing
with cases under this provision, drift in the approach from
“adversarial” litigation to social context adjudication is the need of
the hour.”
18. Though from the evidence adduced by both the parties, it is found
that the father is having some agricultural land yet is not able to
cultivate the same. He also depends upon his elder son, with whom, he
resides. The father has given the share in whole property to his younger
son Manoj Sao equally but he has not been maintained by his younger
son for more than 15 years. Even if for the sake of argument, the father
earns something; it is pious duty of a son to maintain his old aged
father. In Hinduism the importance of parents is shown, which is quoted as
under:
“If your Parents are confident you feel confident, if they are
sad you will feel sad. Father is your God and Mother is your
Nature. They are the seed you are the Sapling. No whatever
good or bad they have in them, even inactive, will become a
tree in you. So you inherit your parent’s good and bad both. A
person carries some debts due to being born and that includes
debt (Spiritual) of Father and Mother which we have to repay.”
19. In view of the analysis of the evidence on record adduced on behalf of
both the parties, first point of determination is being decided in favour of the
father and against the son.
20. The second point of determination reads as under:
(ii) Whether the quantum of the maintenance is itself
proportionate in view of the income and liability of the son,
the petitioner herein?
20.1 On behalf of the father, it has been stated that his younger son Manoj
Sao has been earning Rs.40-50 thousand per month from the grocery shop in
the village itself and has annual income of Rs.2,00,000/- from the
agricultural land. The same has been supported with the evidences of P.W.-1,
Pradip Kumar, the elder son; P.W.-2, Vakil Sao and; P.W.-3, Deoki Sao, the
father himself.
20.2 Per contra on behalf of the opposite party No.2, the son has examined
Manoj Sao, himself as O.P.W.-3, and O.P.W.-1, his wife Gudiya Devi. One
independent witness O.P.W.-2, Arjun Sao has also been examined. All these
three witnesses have stated that Manoj Sao caries a shop in the village and
also cultivates two acres of land, which he has received from his father. He
has his own house comprising therein 12 rooms received from his father. Out
of the same, he carries a shop of grocery. The independent witness O.P.W.-2,
Arjun Sao also says that Manoj Saw drives auto. As such, the income of
younger son Manoj Saw though has not been assessed by the learned Court
below; yet from all the sources tentatively, it can be assessed Rs.30,000/-
per month and out of the same, the learned trial Court has directed only
1/10th portion i.e. Rs.3,000/- per month payable to the father, who has
given birth to his son and brought up him and has also given the house,
which he has built comprising therein 12 rooms, two acres of
agricultural land. The maintenance amount of Rs.3000/- cannot be said
to be disproportionate . Accordingly, second point of determination is also
decided in favour of the father and against the son.
21. In view of the findings recorded by the learned Court below on the
above point of determination, the impugned judgment passed by the learned
Court below needs no interference, accordingly, this Criminal Revision
deserves to be dismissed.
22. Accordingly, this Criminal Revision is, hereby, dismissed and the
impugned order passed by the learned court below is hereby affirmed.
23. Let a copy of this order be communicated to the learned Court
concerned through ‘FAX’
|
It is the pious duty of a son to support his aged father and pay him maintenance even if the father is earning, the Jharkhand High Court recently said while upholding a family court order directing a man to pay maintenance to his aged father [Manoj Kumar @ Manoj Sao V/S The State of Jharkhand and Others].
Justice Subhash Chand made the observation while dismissing a plea filed by a man challenging a family court order that had ordered him to pay ₹3,000 as monthly maintenance to his father.
The judge also cited Hindu scriptures and the Mahabharat to drive home the importance of one's parents.
"In Hinduism the importance of parents is shown, which is quoted as under: 'If your Parents are confident you feel confident, if they are sad you will feel sad. Father is your God and Mother is your Nature. They are the seed you are the Sapling. No whatever good or bad they have in them, even inactive, will become a tree in you. So you inherit your parent’s good and bad both. A person carries some debts due to being born and that includes debt (Spiritual) of Father and Mother which we have to repay,'" the Court said.
Further, the Court noted that in the Mahabharat, when asked what is mightier than the earth and higher than the heavens, Yudhishthira said, “the mother is weightier than the earth; the father is higher than the heaven.”
The Court added that even if, for the sake of argument, the father is earning some income, this does not affect the son's duty to maintain his parent.
"Even if for the sake of argument, the father earns something; it is pious duty of a son to maintain his old aged father," the order stated.
The Court was dealing with a criminal revision plea by a man who challenged a March 2023 family court order directing him to pay ₹3,000 as maintenance to his father, aged around 60 years.
The father, Deoki Sao, had submitted that he had two sons, Pradip Kumar and Manoj Kumar. He had transferred his land in equal shares to the two in 1994.
He added that while his older son, Pradip Kumar had been maintaining him for 15 years, his younger son Manoj Kumar was not maintaining him and was living separately. Deoki Sao also alleged that he was insulted and subjected to assault by his younger son.
Deoki Sao, therefore, moved an application before the family court seeking ₹10,000 per month as maintenance from Manoj Kumar.
The family court's decision to order the payment of ₹3,000 as monthly maintenance, payable by the younger son was then challenged before the High Court.
The younger son contended that he has not been neglecting his father and that his father has his own income from agricultural land and a bricks kiln. He argued that his father was able to maintain himself and that the maintenance application was filed only to harass him (younger son).
The Court, however, was not persuaded by these arguments.
"It is found that the father is having some agricultural land yet is not able to cultivate the same. He also depends upon his elder son, with whom, he resides. The father has given the share in whole property to his younger son Manoj Sao equally but he has not been maintained by his younger son for more than 15 years. Even if for the sake of argument, the father earns something; it is pious duty of a son to maintain his old aged father," the Court said.
The High Court, therefore, upheld the family court order and dismissed the plea.
Advocate Bharat Kumar appeared for the petitioner (son). Additional Public Prosecutor Shashi Kumar Verma appeared for the State. Advocate Abhilash Kumar appeared for the father.
|
W.P.No.18418 of 2021
W.P.No.18418 of 2021
Rangarajan Narsimhan ...Petitioner-in
Person
1.The Principal Secretary,
Tourism, Culture & Religious Endowments,
Secretariat, Fort St. George,
Chennai - 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments,
119, Uthamar Gandhi Salai,
Nungambakkam, Chennai - 600 034....Respondents
Prayer: Petition under Article 226 of the Constitution of India seeking
issuance of a writ of mandamus forbearing the respondents from
interfering in the religious affairs and altering the religious practices
of Hindu Religious Institutions in any manner and a further direction
to the respondents to withdraw the Annai Thamizhil Archanai scheme
introduced by the respondents.
http://www.judis.nic.in
W.P.No.18418 of 2021
For the Petitioner:Mr.Rangarajan Narasimhan
Party-in-person
For the Respondents:Mr.R.Shunmugasundaram
Advocate-General
assisted by
Mr.P.Muthukumar
State Government Pleader
(Order of the Court was made by the Hon'ble Chief Justice)
The grievance of the petitioner in this public interest litigation is
that the State Government is purporting to interfere in the religious
affairs and altering the religious practices of Hindu religious
institutions in temples. The grievance appears to be particularly
against the Hindu Religious and Charitable Endowments Department
which is in control of a large number of temples in this State.
2. The petitioner claims that most of the temples have been set
up according to the agama principles and it has been the age-old
tradition for mantras to be chanted in Sanskrit language. According
to the petitioner, the very sanctity of the mantras is destroyed if not
chanted in Sanskrit.
http://www.judis.nic.in
W.P.No.18418 of 2021
3. The petitioner refers to a judgment rendered by a Division
Bench of this court on December 16, 1998 in W.P.No.18273 of 1998
(Pasha Karuppiah v. State of Tamil Nadu). The petitioner relies on
paragraph 18 of the judgment to assert that it has already been
accepted in this court that the language in which the mantras would
be chanted may only be Sanskrit. Paragraph 18 of the relevant
judgment reads as follows:
"18. The plea of the petitioner is to bring about a
change in the language of worship in religious
institutions belonging to Hindus. The Court cannot
compel the use of a particular language and the
exclusion of other languages in the religious
institutions of this State at the instance of the
petitioner. The plea of the petitioner is to violate and
not to protect the constitutionally guaranteed right to
profess, practice and propogate one's religion."
4. There is a later judgment of this court reported at 2008-2-
L.W. 236 (V.S.Sivakumar v. M.Pitchai Battar), also rendered by a
Division Bench, where the question posed before the court is
recorded in the first paragraph: whether providing for archanas to be
performed in Tamil at the request of the devotees in addition to the
http://www.judis.nic.in
W.P.No.18418 of 2021
existing practice of reciting archanas in Sanskrit, would offend the
right to profess Hindu religion guaranteed under Article 25 of the
Constitution. The issue is squarely answered at paragraphs 50 and
51 of the report. The court held that there was nothing in the
agamas or in other religious scripts to prohibit the chanting of
mantras in Tamil in temples. The court also held that the choice was
vested with the devotees to seek for their archanas to be performed
at their wishes by chanting mantras either in Tamil or in Sanskrit.
5. As would be evident from the earlier judgment of this court
relied upon by the petitioner herein, the issue there was whether the
court would compel the use of a particular language and exclude
other languages in Hindu religious institutions in the State at the
behest of the petitioner. It was in such context, where the petitioner
insisted that Tamil alone must be the language in which mantras
ought to be chanted in temples in this State, the court found that the
plea was unjustified and dismissed the petition. The larger issue as
to whether mantras may be chanted in Tamil at the behest of the
devotee apart from the practice in the temples of chanting such
mantras in Sanskrit has been dealt with in the later judgment of
http://www.judis.nic.in
W.P.No.18418 of 2021
V.S.Sivakumar.
6. Nothing that the petitioner cites would permit this court to
take a view at variance with the one expressed in V.S.Sivakumar. In
the event the petitioner requires a re-assessment, it has to be at an
altogether different level.
7. Judicial discipline commands that when an issue has been
decided, unless the circumstances have changed or the decision on
the issue is rendered suspect on account of the judgment not taking
the applicable law into account or any pronouncement of a superior
forum has intervened, the matter may not be revisited. There is no
change in the circumstances and no case is made out for
reconsidering a matter that has been concluded in the year 2008 and
instructs the manner in which mantras may be chanted in temples in
the State.
8. Since the only issue which the petitioner raises is covered in
the previous judgment of this court which remains binding, there is
no merit in the present petition for it to be admitted.
http://www.judis.nic.in
W.P.No.18418 of 2021
9. W.P.No.18418 of 2021 is dismissed at the receiving stage on
the grounds indicated above. W.M.P.No.19634 of 2021 is closed.
There will, however, be no order as to costs.
03.09.2021
Index : No
bbr
1.The Principal Secretary,
Tourism, Culture & Religious Endowments,
Secretariat, Fort St. George,
Chennai 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments,
119, Uthamar Gandhi Salai,
|
The Madras High Court on Friday declined to entertain a public interest litigation (PIL) petition which had raised grievance that the Tamil Nadu Hindu Religious and Charitable Endowments Department (HR &CE Department) was forcing Hindu temples to perform pujas in Tamil language as well, instead of only Sanskrit (Rangarajan Narasimhan v. The Principal Secretary and anr).
A Bench of Chief Justice Sanjib Banerjee and Justice PD Audikesavalu opined that the issue has already been settled in the 2008 High Court ruling of VS Sivakumar v. M Pitchai Battar.
The Court recalled that in the VS Sivakumar ruling, it had been concluded that there was nothing in the agamas or other religious scriptures to show that chanting of mantras in Tamil is prohibited.
"The Court also held that the choice was vested with the devotees to seek for archanas to be performed by their wishes by chanting the mantras in Tamil or Sanskrit," the Bench further observed today.
"The larger issue as to whether the mantras may be chanted through Tamil at the behest of the devotee apart from the practice of the temple in chanting such mantras in Sanskrit has been dealt with in the judgment of VS Sivakumar. Nothing that the petitioner cites would permit this court to take a contrary view than the one expressed in VS Sivakumar. … if the petitioner requires a reassessment, it has to be taken to an altogether different level," the Court ruled.
The petitioner, Rangarajan Narasimhan, had contended that it has been a practice since time immemorial to perform the Temple archanas in Sanskrit.
The Agama principles require the mantras to be done in a certain way, Narasimhan further argued. While so, it was submitted that the Tamil Nadu government and the HR&CE department had misused and abused their powers to force the Temples to chant the mantras in an alien language.
Being a secular country, the State cannot interfere in religion and religion cannot interfere in the State, he argued. He also highlighted that the Places of Worship Act requires that the religious nature of temples not be altered. Therefore, it was contended that the State's action in this case was ultra vires the Act as well.
The Bench had initially been inclined to admit the case. However, after the ruling in VS Sivakumar was taken note of, it declined to entertain the matter further.
In view of the VS Sivakumar ruling, Chief Justice Banerjee orally observed,
"(The) choice is with devotees to chant mantras in the language of their choice."
Narasimhan responded that the issue here is whether the State government has any authority to interfere in religious practices.
"Which other religious practice has been altered? We have to exclude the aspect of chanting mantras since it is already covered", the Chief Justice remarked.
Whereas Narasimhan asserted that the issue has not been covered, the Chief Justice was not convinced.
"Come to the prayer. … (it says, prohibit the) 'State from interfering in religious practice in any manner.' One practice you refer to is chanting of mantras in Tamil. Any other practice?", he asked.
Narasimhan reiterated that the issue involved is whether such practice can be introduced by the government,
"In this writ petition, I am not asking for any other relief. But it is been practice of the HR&CE Department to interfere in various religious practices", he added.
The Court, however, responded by remarking that it will not entertain vague allegations. The issue concerning chanting of mantras is no longer res integra, the Bench added.
"What is permissible is a choice of devotee whether to chant the mantra in Tamil or in Sanskrit", Chief Justice Banerjee said.
"It is not choice of devotee. It is the mandate of a religious requirement. It (VS Sivakumar ruling) does not question authority of government. The practice is now introduced by govt. What is the authority of the government?" Narasimhan argued.
Opining that there have been no change in circumstances to revist the issue, the Court, however, declined to admit the case.
Whereas the petitioner had also relied on a 1998 ruling to advance his case that the mantras should be chanted in Sanskrit, the Bench opined that this judgment had been rendered in a case where the petitioner had insisted that mantras should be chanted in Tamil alone.
|
March 25, 2022
WPA (P) 130 of 2022
The Court on its own Motion
In re: The Brutal Incident of Bogtui Village,
Rampurhat, Birbhum
WPA (P) 124 of 2022
Anindya Sundar Das
vs.
Union of India and others
WPA (P) 125 of 2022
Tarunjyoti Tewari
vs.
Union of India and others
WPA (P) 126 of 2022
Priti Kar
vs.
The State of West Bengal and others
WPA (P) 129 of 2022
Sayanti Sengupta
vs.
The State of West Bengal and others
WPA (P) 133 of 2022
Priyanka Tibrewal
vs.
The State of West Bengal and others
Mr. Sabyasachi Chatterjee,
Mr. Pintu Kakar,
Mr. Akashdeep Mukherjee,
Ms. Debolina Sarkar,
Mr. Ranjil Mukherjee,
Mr. Sayan Banerjee,
WPA (P) 130 of 2022 & ors 2
Mr. Samim Ahammed,
Mr. Arka Maiti,
Mr. Aniruddha Singh,
Ms. Gulsanwara Pervin, Advocates
… for the intervenor
in WPA (P) 130 of 2022
Mr. Phiroze Edulji,
Mr. Rajdeep Biswas,
Mr. Nilendu Bhattacharya,
Mr. A. K. Upadhyay,
Mr. Debapriya Samanta,
Mr. Dipankar Dandapath,
Mr. Idratanu Das Mahapatra,
Mr. Mrinal Das,
Mr. Raja Adhikari,
Mr. Abhijit Roy,
Mr. Sanjeeb Sen, Advocates
… for the petitioner
in WPA (P) 124 of 2022
Mr. Nilanjan Bhattacharjee,
Mr. Kumar Jyoti Tewari,
Mr. Brajesh Jha,
Mr. Ajit Kumar Mishra,
Mr. Uttam Basak,
Mr. Rajdeep Mazumdar,
Mr. Arijit Majumdar,
Mr. Lokenath Chatterjee,
Mr. Ayon Paul,
Mr. Moyukh Mukherjee,
Mr. Aniruddha Tewari,
Mr. Saket Sharma,
Mr. Sukanta Ghosh, Advocates
… for the petitioner
in WPA (P) 125 of 2022
Mr. Koustav Bagchi,
Mr. Debayan Ghosh, Advocate
… for the petitioner
in WPA (P) 126 of 2022
Mr. Rabi Shankar Chattopadhyay,
Mr. Uday Shankar Chattopadhyay,
Mr. Santanu Maji,
Mr. Jamiruddin Khan,
Mr. S. Chattopadhyay,
Mr. Imteaz Ahmed, Advocates
… for the petitioner
in WPA (P) 129 of 2022
Ms. Priyanka Tibrewal,
... petitioner-in-person
in WPA (P) 133 of 2022
Mr. S. N. Mookherjee, ld. AG
Mr. Samrat Sen, ld. AAAG
Mr. Anirban Ray, ld. GP
WPA (P) 130 of 2022 & ors 3
Mr. N. Chatterjee, Advocates
… for the State
Mr. Vipul Kundalia,
Ms. Amrita Pandey, Advocate
… for the Union of India
in WPA (P) 124 of 2022
Mr. Debasish Tandon, Advocate
in WPA (P) 124 of 2022
Mr. Dhiraj Trivedi, ld. Asst. Solicitor General
Mr. Shailendra Kumar Mishra,
Mr. Rishav Kumar Thakur, Advocates
… for the CBI
in WPA (P) 125 of 2022
Mr. Billwadal Bhattacharyya, ld. Asst. Solicitor General
Mr. Debu Chowdhury, Advocate
… for the CBI
in WPA (P) 126 & 129 of 2022
A very shocking and unfortunate incident has taken
place at village Bogtui, on the outskirts of Birbhum’s
Rampurhat. At late night on 21st of March, 2022, some
miscreants have put on fire 10 houses of the village, in
which at least 8 persons which include a child, women,
and newly married couple have been burnt alive. Apart
from the fact that charred bodies of 8 persons have been
found from those houses in the village, some villagers are
also injured who have been hospitalized.
The media reports state that Bogtui is a village with
over 2000 population and after the incident the residents
of the village have left their houses on account of fear and
terror. It has been reported that the killings was the
result of the outrage amongst the close aids and
supporters of Bhadu Sk, the deputy chief of ruling party
WPA (P) 130 of 2022 & ors 4
run Barishul Gram Panchayat who was killed by
assassinator belong to the rival camps, due to bombs
hurled on Monday night, and, therefore, the incident is
the retaliatory action to Bhadu Sk’s killing. Some of the
reports also state that the poor villagers became the
victim of rivalry between two groups of the ruling party
and that incident was caused by goons supported by the
political party in power. At this stage, it is not possible to
draw any conclusion about truthfulness or falsity of these
allegations because investigation is yet to take place but
these reports and allegations cannot be completely
ignored.
On registering the suo motu petition by this Court as
many as 5 PILs have also been filed making serious
allegations. It has been alleged that the incident had
taken place at the instance of the hooligans associated
with the ruling party and that even the fire brigade
personnel were stopped from entering the village.
Apprehension has been expressed that though SIT has
been formed but the investigation will be done only to
cover up the issue instead of finding the culprits or to
unearth the truth. Serious apprehension has been
expressed that the investigation has been camouflaged by
the investigating agency and the evidence will be
destroyed and that the independent investigation by the
local police is not possible on account of the involvement
of high profile persons connected to one of the political
WPA (P) 130 of 2022 & ors 5
party and that in order to cover up the incident one of the
leaders of the ruling party has already stated the incident
took place due to short circuit as a television had blasted.
A strong apprehension has been expressed about
likelihood of tampering the evidence and influencing the
witnesses by raising the plea that the incident is the
result of a political vendetta.
The object of registering this suo motu petition is to
ensure fair investigation and to trace out the persons
responsible for the incident and to see that they are
punished adequately. This Court on 23rd of March, 2022
had issued certain directions in this petition to preserve
the evidence and had further directed the learned
Advocate General to provide the case diary / report of
investigation to this Court and the same has been
produced.
Submission of learned Counsel for the petitioners is
that the investigating agencies are not properly carrying
out the investigation and till yesterday no action was
taken and only after the intervention by this Court some
activity has been shown. It is also submitted that
whereabout of one of the minor witnesses is not known
and the police is not recording the statements of the
family members of the deceased and that out of fear and
terror all the villagers of not only the concerned village
but also nearby villages have fled away and it is
necessary that justice be done to the victims of the family
WPA (P) 130 of 2022 & ors 6
and the faith of the society in the system is restored,
therefore, an independent agency be appointed to carry
out the investigation. In support of their submission they
have placed reliance upon various judgments of this
Court as well as Hon’ble Supreme Court.
Learned Advocate General has submitted that all the
directions which were issued by this Court on 23rd of
March, 2022 have been complied with and protection to
the witnesses has been provided but it will take some
time to restore confidence in the villagers so that they can
come back to their houses. He has advanced the
argument that the writ petitions have been filed without
proper verification and that oral arguments without the
pleadings have been advanced before this Court and that
the investigation is being properly carried out and SIT has
been formed and arrests have been made, therefore, at
this stage no case is made out for transferring the
investigation to the CBI.
We have heard the learned Counsel for the parties
and perused the records.
Before entering into the issue, we deem it proper to
examine the scope of judicial intervention and consider
circumstances when the investigation can be transferred
to the CBI.
Hon’ble Supreme Court in the matter of Gudalure
M.J. Cherian and Others vs. Union of India and
Others reported in (1992) 1 SCC 397 in a case of alleged
WPA (P) 130 of 2022 & ors 7
rape of two nuns at Gajraula in Uttar Pradesh where after
filing of charge-sheet, a prayer for transfer of
investigation to the CBI was made, has held that in a
given situation to do justice between the parties and to
instill confidence in the public mind, it may become
necessary to ask the CBI to investigate a crime. It only
shows the efficiency and the independence of the agency.
The Hon’ble Supreme Court in that case had directed the
CBI to take up the investigation.
In the matter of R.S. Sodhi v. State of U.P. and
Others reported in AIR 1994 SC 38 , in a case where
allegations were leveled against the local police and it was
held that the investigation by State police would lack
credibility and that it would be desirable to entrust the
investigation to an independent agency like the CBI so
that all concerned including the relatives of the deceased
may feel assured that an independent agency is looking
into the matter and that would lend the final outcome of
investigation credible. In the facts of the case, it was
observed that however faithfully the local police may
carry out the investigation, the same would lack
credibility since the allegations were against them.
In the matter of Punjab and Haryana High Court
Bar Association, Chandigarh vs. State of Punjab and
Others reported in AIR 1994 SC 1023 , in a case where a
practicing lawyer, his wife and child were abducted and
murdered and the lawyers’ fraternity was not satisfied
WPA (P) 130 of 2022 & ors 8
with the police investigation though the investigation was
already completed, Hon’ble Supreme Court, considering
the facts of the case, in order to do complete justice in the
matter and to instill confidence in the public mind had
directed fresh investigation through specialized agency,
In the matter of State of West Bengal and Others
vs. Committee for Protection of Democratic Rights,
West Bengal and Others reported in AIR 2010 SC 1476 ,
considering the scope of power of the Court to direct
investigation by the CBI, it is held that direction to the
CBI can be given by the Writ Court even in absence of
consent of the State and such direction is not
incompatible with federal structure or doctrine of
separation of power. It has further been observed that
being protectors of civil liberties of the citizens, the
Supreme Court and High Courts have not only the power
and jurisdiction but also an obligation to protect the
fundamental rights guaranteed by Part III in general and
under Article 21 of the Constitution in particular,
zealously and vigilantly. It has been held that such power
should be exercised sparingly, cautiously and in
exceptional situations. It has been also held that the
extraordinary power can be exercised when it becomes
necessary to provide credibility and instill confidence in
investigations or where the incident may have national
and international ramifications or where such an order
WPA (P) 130 of 2022 & ors 9
may be necessary for doing complete justice and
enforcing the fundamental right.
In the matter of Rubabbuddin Sheikh vs. State of
Gujarat and Others reported in AIR 2010 SC 3175 , the
Hon’ble Supreme Court has held that in order to do
complete justice, even after filing of charge-sheet, Court
can direct to hand over investigation to the CBI more so,
when high profile officials of the State are involved in
crime and investigation is not made in proper direction.
In the matter of Ashok Kumar Todi vs. Kishwar
Jahan and Others reported in AIR 2011 SC 1254 , in the
case of unnatural death, where the mother and brother of
the deceased were suspecting murder at the hands of the
in-laws of the deceased and the State CID was interested
in protracting the investigation, considering the
circumstances of the case and the fact that the
complainants had expressed doubt about fair
investigation under the CID, the Hon’ble Supreme Court
had found investigation by CBI to be proper.
In respect of the incident of deaths by police firing
in Nandigram, this Court had registered the suo motu
petition and in order to ensure fair investigation and
avoid possibility of loss/destroying of the relevant
evidence, had directed the investigation by the Special
Team deputed by the Director of CBI. (Association for
Protection of Domestic Rights vs. State of West
Bengal and Others; 2007 SCC OnLine Cal 672) .
WPA (P) 130 of 2022 & ors 10
Counsel for the petitioners have also brought to the
notice of this Court, the Division Bench judgment in the
matter of Bar Association of High Court at Calcutta
reported in (2011) 4 CHN 736 (Cal) wherein considering
the circumstances of the case and being prima facie
satisfied that the local committee of CPI(M) was involved
in the incident the Court had directed the investigation
by the CBI.
Learned Advocate General has advanced argument
to distinguish the cases relied upon by the Counsel for
the petitioners by submitting that only in the cases
relating to the police firing, etc. where involvement of
police is found, the power to transfer the case to the CBI
should be exercised but on perusal of the judgments
noted above, we find that such power can be also
exercised where it becomes necessary to provide
credibility to the investigation and instill confidence in
society or where the incident may have national
ramification or where such an order may be necessary for
doing complete justice and enforcing the fundamental
right. In this view of the matter, we are of the opinion
that the prayer made by the petitioners cannot be turned
down on the basis of the judgments in the matter of K.V.
Rajendran vs. Superintendent of Police, CBCID, South
Zone, Chennai and Others reported in (2013) 12 SCC
480, in the matter of Mohd. Haroon and Others vs.
Union of India and Another reported in (2014) 5 SCC
WPA (P) 130 of 2022 & ors 11
252, in the matter of Sujatha Ravi Kiran vs. State of
Kerala and Others reported in (2016) 7 SCC 597 and in
the matter of Shree Shree Ram Janki Ji Asthan
Tapovan Mandir and Another vs. State of Jharkhand
and Others reported in ( 2019) 6 SCC 777 relied upon by
the learned Advocate General.
Having examined the present case in the light of the
aforesaid judicial pronouncement and limited scope of
judicial intervention, we find that the undisputed
shocking incident of burning of at least 8 persons
including a child and as many as 6 women has shaken
the conscience of the society. It has a nationwide
ramification and all the national media reports are
flooded with the news of this unfortunate incident.
We have already taken note of serious apprehension
expressed before this Court about fair investigation in the
hands of local police or SIT by raising the plea that the
incident is the result of political group rivalry and
counter-blast of the murder of an Upa-Pradhan belonging
to a particular group of the ruling party and submission
that the attempt is being made to destroy the evidence
and cover up the incident. In the communication dated
22.03.2022, Hon’ble Chief Minister has mentioned the
fact that murdered Upa-Pradhan was an important TMC
Party functionary. Though after the incident by the order
dated 22.03.2022 the Director General and Inspector
General of Police, West Bengal has formed three member
WPA (P) 130 of 2022 & ors 12
Special Investigation Team and this team is headed by
Shri Ghyanwant Singh, IPS, Additional Director General
of Police, CID, West Bengal but his independence and
impartiality has been doubted by submitting that there
was an allegation of murder of one Rizwanur Rahaman
against him in the year 2007, therefore, he was kept out
of work till 2014 and that ED had also summoned him in
relation to a coal smuggling scam of rupees one thousand
three hundred crores. Though learned Advocate General
has submitted that in respect of the allegation of murder
no charge sheet was filed against him but it remains
undisputed that such an allegation was made against
him.
The case diary of the incident has been produced
before us. We have minutely examined it. We find that
though the SIT was constituted on 22.03.2022 but till
now there is no effective contribution of the SIT in the
investigation. It has been submitted that in spite of the
fact that the police station is very near to the spot of
incident, the police did not reach on time and persons
trapped inside the houses were kept on burning. Counsel
for the petitioners have pointed out the procedure which
was required to be followed in investigation by using
tower damping technology to ascertain the presence of
accused on the spot, manner of collection of samples and
seizures, the videography of the collection of sample,
recording of the evidence of the witness under Section
WPA (P) 130 of 2022 & ors 13
161 and 164 of the Cr.P.C., recording of dying
declaration, etc. On minute examination of the case diary,
we are of the opinion that the investigation as expected,
keeping in view the gravity of the offence, has not been
done. We are not mentioning the details of lacuna noticed
in investigation as it may prejudice the rights of the
parties. We also find that this is one such exceptional
case where requisite direction is required.
It is pertinent to mention here that expeditious
steps are required to be taken to hand over the
investigation to an independent investigating agency
because there is an allegation of an attempt to wipe off
the evidence.
We take note of the fact that learned Additional
Solicitor General has stated that CBI has no difficulty in
doing the investigation.
Having regard to the aforesaid we are of the opinion
that facts and circumstances of the case demand that in
the interest of justice and to instill confidence in the
society and to have fair investigation to dig out the truth
it is necessary to hand over the investigation to the CBI.
Accordingly, we direct the State Government to forthwith
hand over the investigation of the case to CBI. We also
direct the State authorities to extend full cooperation to
CBI in carrying out the further investigation.
In view of this order the State police authorities or
SIT formed by the State will not carry out any further
WPA (P) 130 of 2022 & ors 14
investigation in the matter from the time the same is
handed over to CBI.
CBI will not only be handed over the case papers but
also the accused and suspects who were arrested in the
matter and in custody.
Hence, we direct the CBI to forthwith take over the
investigation in the case and submit the progress report
before us on the next date of hearing.
We make it clear that any factual observation made
in this order is only tentative for the purpose of deciding
the issue of transfer of investigation to the CBI and will
not be treated as binding in any other proceeding.
List on 07th of April, 2022.
[Prakash Shrivastava, C.J.]
[Rajarshi Bharadwaj, J.]
Later,
After pronouncement of the order, an oral prayer
has been raised by the learned Advocate General to
stay of the operation of the order. We find no reason to
grant the prayer. Hence, the prayer is rejected.
[Prakash Shrivastava, C.J.]
|
The Calcutta High Court on Friday transferred to the Central Bureau of Investigation (CB) the investigation into the violence in Birbhum district of West Bengal, in which 8 persons were killed allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh.
The order was passed by a Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj in a suo motu case taken up to consider the issue.
Besides the suo motu case, certain public interest litigation (PILs) had also been filed before the Court seeking a CBI probe into the incident.
The Court explained that the order was made in the interest of justice, to instill confidence, and to have fair investigation to dig out the truth.
"Accordingly, we direct the State Government to forthwith hand over the investigation to the CBI. We also direct State authorities to extend full cooperation to the CBI in carrying out investigation," the Bench said.
The Court further ordered that the Special Investigation Team formed by State would not carry out any investigation in the matter once the case is handed over to the CBI.
The CBI was directed to take over the investigation and submit a progress report to the Court on April 7.
"We direct the CBI to forthwith takeover the investigation and submit progress report on the next date of hearing, list on 7 April," the Court diretced.
The Court also turned down the request by the State to stay the order to enable it to file an appeal against the same.
Sheikh, a TMC leader and upa pradhan of Boroshal gram panchayat, was killed by some miscreants on March 21 at around 8:30 pm.
This led to a violent backlash in which around 10 to 12 houses were torched and at least 8 persons were burnt alive, Times Now reported.
The State government has responded by constituting a special investigation team (SIT) to probe the incident. However, petitions were filed before the Court alleging that the SIT has already given many contradictory statements on the issue and that it will only act as a "slave of the ruling party".
The Court had on Wednesday directed the West Bengal government to produce before the Court, the case diary/report about the investigation into the violence.
This, after taking into consideration the Advocate General's argument that the State's investigation should be considered and examined before taking a call on whether the probe should be transferred to the CBI or any other agency.
However, in order to ensure that evidence on the spot remains intact and witnesses are protected, the Court had also passed the following directions:
- State will immediately install CCTV cameras with DVR having sufficient memory covering all angles of scene of occurrence and will do continuous recording until further orders. Cameras should be installed in the presence of District Judge, Purba Bardhaman district;
- A team from CFSL, Delhi is directed to visit the spot of incident and collect the necessary material for forensic examination without any delay;
- Director General of Police and Inspector General of Police in consultation with District Judge, Purba Bardhaman district should ensure that witnesses are adequately protected and not threatened or influenced by anyone;
When the matter was taken up for hearing on Thursday, the petitioners had submitted that the prime suspect has not been arrested yet.
"After 48 hours the prime suspect has not been arrested! I have been informed that the CM said that if any other political leaders wish to visit the site, they can visit with police. This can lead to destruction of evidence," it was contended.
The petitioners had also likened the incident to the 2007 Nandigram firing.
"I am praying for CBI investigation. History repeats itself- 2007, Nandigram police firing. In that too, suo motu cognisance taken," it was pointed out.
The petitioners also alleged that no statements of witnesses have been recorded yet.
"This x is the family member who is still alive. No report was given by the State for statement under 161 or 164. These 8 people were killed on that day. One victim died at hospital, and no statement was recorded. Family members of people who are now homeless, nobody has contacted them," it was submitted.
The police and ruling party leaders are acting in connivance to run illegal trade of coal mining, it was alleged.
The petitioners also questioned the inclusion of Gyanwant Singh in the State's Special Investigation Team (SIT).
"Who is this Gyanwant Singh? The ED has sent notice to him in 2021 in coal smuggling case. That's the reason he's been made the top of this SIT....When the SIT was formed, Gyanwant Singh was not on it. State needs to respond why he was added," it was alleged.
The State government, on the other hand, contended that all the directions by the Court have been complied with including direction to install CCTVs.
"There was a direction to provide witness protection. I don't want to take names- this has been provided. All but one postmortems have been videographed," Advocate General (AG) SN Mookherjee told the Court.
He also said that the petitioner's oral arguments were not part of their pleadings.
"It is very easy to stand up, say things which are not even in the petition. Every submission of theirs, none is in plea," the AG said.
Regarding the allegations raised against Gyanwant Singh, the AG had submitted that the petition does not have any mention of the same.
"In the petitions, there is not one allegations concerning Gyanwant Singh. I don't hold a brief for him but if he is being crucified, he is entitled to a hearing! We are before a highest court of State," it was submitted.
After hearing the parties for more than two hours the Court reserved its verdict.
Advocate Phiroze Edulji appeared for the petitioners. Advocate Priyanka Tibrewal appeared in-person.
|
Versus
Leave granted.
2. A Division Bench judgment of Rajasthan High Court, dated
25.11.2021, is under challenge before this Court. Apart from the
appeals, there are three Writ Petitions as well before this Court,
on the same issue. All the same, while dealing with these cases,
for facts, we would be referring to Civil Appeal @ SLP (C)
No.20743 of 2021 Devesh Sharma versus Union of India, which
arises out of the order dated 25.11.2021 passed by the High
Court in D.B. Civil Writ Petition No. 2109 of 2021.
3.What lies at the core of the dispute before this Court is the
notification dated 28.06.2018, issued by the National Council for
Teacher Education (hereafter ‘NCTE’), made in exercise of its
powers under Section 23(1) of the Right to Education Act, 2009
(hereinafter referred to as the ‘Act’) . This notification made B.Ed.
degree holders eligible for appointment to the post of primary
school teachers (classes I to V). All the same, in spite of the
above notification, when the Board of Secondary Education, State
of Rajasthan, issued an advertisement on 11.01.2021, for
Rajasthan Teacher Eligibility Test (RTET Level-1), it excluded
B.Ed. degree holders from the list of eligible candidates. This
action of the Rajasthan Government was challenged before the
High Court. The petitioner Shri Devesh Sharma has a B.Ed.
degree, and as per the Notification dated 28.06.2018, he was
eligible, like many other similar candidates. Consequently, he
filed his petition before the Rajasthan High Court, inter alia,
praying that the advertisement dated 11.01.2021 be quashed, as
it was in violation of the notification dated 28.06.2018 issued by
4.Apart from the above batch of petitioners, there was another
set of petitioners, with their own grievance. These are the
candidates who are diploma holders in Elementary Education
(D.El.Ed.)1, which was the only teaching qualification required for
1 It is possible that this diploma is called by different names in different States. It is for this reason
that at some place it may just be referred as a diploma in elementary education.
teachers at primary level, and who are aggrieved by the inclusion
of B.Ed. qualified candidates. They too filed Writ Petitions before
the Rajasthan High Court challenging the legality of the
notification dated 28.06.2018. The State of Rajasthan
understandably supported these second batch of candidates
before the High Court, as they would do before this Court.
5.Out of the three writ petitions before us two (W.P. No. 137 of
2022 and 881 of 2022) are challenging the notification dated
28.06.2018 and the subsequent notifications issued by the
Government of Bihar and U.P. respectively calling for application
from eligible candidates including B.Ed. W.P. No. 355 of 2022
again challenges the notification dated 28.06.2018. SLP (C) No.
22923 of 2022 is against an interim order of the Calcutta High
Court which denied relief to the petitioners who were seeking a
stay of the notification dated 28.06.2018.
6.Hence the question of law to be answered in these cases is
whether NCTE was right in including B.Ed. qualification as an
equivalent and essential qualification for appointment to the post
of primary school teacher (Level-1)? The Rajasthan High Court in
the impugned judgment has quashed the notification dated
28.06.2018, holding B.Ed. candidates to be unqualified for the
posts of primary school teachers (Level-1).
7.On behalf of the Petitioners, we have heard learned Senior
Counsel, Mr. Paramjit Singh Patwalia who has assailed the
Judgement of the Rajasthan High Court. Mr. Patwalia appeared
for the B.Ed. qualified candidates and would support the
notification dated 28.06.2018, and the petitioners who had
challenged their exclusion before the Rajasthan High Court. Ms.
Meenakshi Arora, learned senior counsel was also heard for the
appellants. The learned counsel would argue that the High Court
failed to consider that the notification dated 28.06.2018 was a
policy decision taken by the NCTE after the Central Government
had issued directions in this regard, under Section 29 of the
NCTE Act, and the High Court was wrong in interfering with the
policy decision of the Central Government. The NCTE broadly
agrees with the submissions which have been made by Shri
Patwalia, and Ms. Arora, while assailing the impugned
judgement.
8.We have also heard the submissions by the learned Senior
Counsel Mr. Kapil Sibal and Dr. Manish Singhvi who appeared for
the Diploma holders and the State of Rajasthan respectively who
would argue, inter alia, that the NCTE being an expert body had
to take an independent decision in this case, based on the
objective realties. Even if the NCTE had to follow the directions of
the Central Government, the NCTE must demonstrate that these
directions had been independently considered by them and not
implemented in a mechanical manner.
9.On behalf of the Union of India we have heard learned
Additional Solicitor General(s) Ms. Aishwarya Bhati and Mr.
Vikramjeet Banerjee. They would argue that the Impugned
Judgement has been passed ignoring the powers of the Central
Government given both under the Act as well as NCTE Act.
Moreover, an objection has also been raised that the Union of
India was not even made a party in the proceedings before the
Rajasthan High Court!
10.During the course of hearing, this Court had passed an
order dated 24.08.2022, granting liberty to the Board of
Secondary Education for different States, and other stake holders
to be impleaded as intervenors. Pursuant to this order, several
Interlocutory Applications were filed which are being heard along
with these appeals.
11.“The Indian Constitution is first and foremost a social
document”, writes Granville Austin2. The Rights contained in
Part III and the Directive Principles of State Policy contained in
Part IV together establish conditions which further the goal of
this social revolution3. Austin goes on to call Part III and Part IV
of the Constitution as “The Conscience of the Constitution”4. Free
and compulsory education for children was a part of the social
vision, of the framers of our Constitution.
12.Elementary education for children is today a Fundamental
Right enshrined under Article 21A of Part III of the Constitution
of India. Every child (upto 14 years of age), has a fundamental
Right to have ‘free’ and ‘compulsory’ elementary education. But
then ‘free’ and ‘compulsory’ elementary education is of no use
unless it is also a ‘meaningful’ education. In other words,
elementary education has to be of good ‘quality’, and not just a
ritual or formality!
13.Our progress, in achieving this constitutional goal, has been
slow. In some ways, it is still a work in progress. Prior to the
Constitutional 86th Amendment, the Right to Education was in
2 Austin, Granville. “The Conscience of the Constitution”. The Indian Constitution, Cornerstone of a
Nation, Oxford University Press, 2000, pp. 50
3 Ibid – pp 50.
4 Ibid – pp 50.
Part-IV of the Constitution (Article 45), as a Directive Principle of
State Policy. Directive Principles, as we know, are a set of goals
which the state must strive to achieve. The goal set out in Article
455 of the Constitution (as it stood at that time), was to make
elementary education free and compulsory for all children up to
age of 14 years, within 10 years of the promulgation of the
Constitution. All the same, it would take much more than ten
years to achieve this goal.
14.The 1986 National Policy on Education, modified in the year
1992, declared that free and compulsory elementary education of
‘satisfactory quality’ be given to all children up to the age of
fourteen years, before the nation enters the next century i.e., 21st
Century.
15.Later in the seminal judgment of this court in Unni
Krishnan J.P. versus State of Andhra Pradesh and Ors. (AIR
1993 SC 2178), it was held that children have a fundamental
right to free education, till they complete the age of fourteen
years.
5 Article 45 of the Constitution as it existed prior to the 86th Amendment :
“Provision for free and compulsory education for children.— The State shall endeavour to
provide, within a period of ten years from the commencement of this Constitution, for free and
compulsory education for all children until they complete the age of fourteen years.”
16.In the year 1997, in order to make free and compulsory
education a fundamental right the 83rd Constitutional
Amendment Bill was introduced in Parliament, to insert a new
Article in Part III of the Constitution of India, which was to be
Article 21A. The Bill was sent for the scrutiny of the
Parliamentary Standing Committee on Human Resources
Development. The Standing Committee not only welcomed the
amendment but in addition emphasizes on the ‘quality of
elementary education’. This is what it said.
“The eminent educationists felt that the Bill is silent on the
‘Quality’ of Education. They suggested that there should be a
reference to ‘quality’ of education in the Bill. The Secretary,
Education agreed that the ‘quality’ aspect also has to be seen.
Education definitely must mean ‘quality’ education and anything
less than that should not be called education. Therefore, the
emphasis would be through strengthening the teacher education
content, the Secretary stated.”6
Finally, by way of the Constitution (86th Amendment) Act of 2002,
Article 21A, was inserted as a Fundamental Right in Part III of
6 Para 13 of the Report of the Parliamentary Standing Committee on Human Resource Development.
the Constitution, and made effective from 01.04.2010. Article
21A of the Constitution reads as under:
“Article 21A: The State shall provide
free and compulsory education to all
children of the age of six to fourteen
years in such manner as the State may,
by law, determine.”
17.In order to fulfil the above mandate Right to Education Act,
2009, was passed by the Parliament on August 20, 2009, which
became effective from 01.04.2010. The object and reasons of the
Act declared loud and clear that what the Act seeks to achieve is
not merely ‘free’ and ‘compulsory’ elementary education, but
equally important would be the ‘Quality’ of this education! The
Preamble to the Act states “that every child has a right to be
provided full time elementary education of satisfactory and
equitable ‘quality’ in a formal school which satisfies certain
essential norms and standards”.
18.When the validity of the Act was challenged before this
Court7, this Court, while upholding its validity emphasized that
the Act, was intended not only to impart “free” and “compulsory”
education to children, but the purpose was also to impart
‘quality’ education!
77 In Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. [(2012) 6 SCC 1]
“The provisions of this Act are intended not only to
guarantee right to free and compulsory education to children, but
it also envisages imparting of ‘quality’ education by providing
required infrastructure and compliance of specified norms and
standards in the schools.” [See Para 8, (2012) 6 SCC 1]
19.As we can see, the purpose behind bringing this
pathbreaking legislation was not to complete the formality of ‘free
and compulsory’ elementary education for children, but to make
a qualitative difference in elementary education and to impart it
in a meaningful manner. Provisions like ‘Right to be admitted in a
neighbourhood school’8, ‘No denial of admission’9 and ‘Prohibition
of physical punishment and mental harassment’10, are some of
the heartwarming provisions of the Act.
20.The Act sets down certain norms and standards which have
to be followed in elementary schools, and this is with the purpose
of providing a meaningful and ‘quality’ education. To name some
of these requirements such as:-
A.The necessary infrastructure requirement.
B.Pupil teacher ratio which is 30:1 and
8 Section 3 of the Right to Education Act, 2009.
9 Section 15 of the Right to Education Act, 2009.
10 Section 17 of the Right to Education Act, 2009.
C.The absolute necessity of trained as well as qualified
teachers.
21.Free and compulsory education for children becomes
meaningless if we make compromise on its ‘quality’. We must
recruit the best qualified teachers. A good teacher is the first
assurance of ‘quality’ education in a school. Any compromise on
the qualification of teachers would necessarily mean a
compromise on the ‘quality’ of education. Jacques Barzun, the
American educationalist and historian, in his seminal work
‘Teacher in America’, says “teaching is not a lost art, but the
regard for it is a lost tradition”11. Though this comment was for
the state of higher education in America, it is equally relevant
here on the treatment of Primary education in our country, as it
emerges from the facts before us.
22.Elementary education in India is at two levels. A is the
‘Primary’ level i.e. class I to V, and B is the Senior primary level
i.e., classes VI to VIII. Presently we are only concerned with the
“primary level” of education.
23.Section 23 of the Act is extremely important as it not only
provides as to who shall determine the qualifications of teachers
11 Barzun, Jacques. “Profession: Teacher”. Teacher in America, published by Little Brown 7 Co. in
association with Atlantic Monthly Press, 1945, pp. 3-13
in a Primary school, but as to who can relax these qualifications,
and for how long.
It reads as under :-
“Section 23. Qualifications for
appointment and terms and
conditions of service of teachers .— (1)
Any person possessing such minimum
qualifications, as laid down by an
academic authority, authorised by the
Central Government, by notification,
shall be eligible for appointment as a
teacher.
(2) Where a State does not have adequate
institutions offering courses or training
in teacher education, or teachers
possessing minimum qualifications as
laid down under sub-section (1) are not
available in sufficient numbers, the
Central Government may, if its deems
necessary, by notification, relax the
minimum qualifications required for
appointment as a teacher, for such
period, not exceeding five years, as may
be specified in that notification:
Provided that a teacher who, at the
commencement of this Act, does not
possess minimum qualifications as laid
down under sub-section (1), shall
acquire such minimum qualifications
within a period of five years:
[Provided further that every teacher
appointed or in position as on the 31st
March, 2015, who does not possess
minimum qualifications as laid down
under sub-section (1), shall acquire such
minimum qualifications within a period
of four years from the date of
commencement of the Right of Children
to Free and Compulsory Education
(Amendment) Act, 2017.]
(3) The salary and allowances payable to,
and the terms and conditions of service
of, teachers shall be such as may be
prescribed.”
24.Whereas sub-Section (1) of Section 23 is the provision
where the ‘academic authority’ has been empowered to prescribe
qualifications for teachers in elementary schools, sub-section (2)
of Section 23 empowers the Central Government to relax the
minimum ‘qualifications’ prescribed by the ‘academic authority’,
under certain circumstances and for a limited period.
The ‘Academic Authority’ under Section 23(1) of the Act is
the National Council for Teachers Education (NCTE), which
brought a notification on 23.08.2010, laying down the necessary
qualifications for teachers, both at primary, as well as upper
primary level. Inter alia, this notification prescribes as under:-
1. Minimum Qualifications: -
(i) Classes I-V
(a) Senior Secondary (or its equivalent) with atleast 50%
marks and 2- year Diploma in Elementary Education (by
whatever name known)
Senior Secondary (or its equivalent) with atleast 45%
marks and 2-year Diploma in Elementary Education (by
whatever name known), in accordance with NCTE
(Recognition Norms and Procedure), Regulations 2002
Senior Secondary (or its equivalent) with atleast 50%
marks and 4-year Bachelor of Elementary Education
Senior Secondary (or its equivalent) with at least 50%
marks and 2-year Diploma in Education (Special
Education)
(b) Pass in the Teacher Eligibility Test (TET), to be
conducted by the appropriate Government in accordance
with the Guidelines framed by the NCTE for its purpose.
The above notification dated 23.08.2010, does not provide
B.Ed. as a qualification for appointment to the post of primary
school teachers. Later this notification was amended, but B.Ed.
was never included (till the impugned notification dated
28.06.2018), as an essential qualification for teachers of primary
school i.e. for classes I to V.
A candidate for the post of a teacher in a primary school was
to have these three qualifications.
A.He must have passed higher secondary level.
B.He must have a Diploma in elementary education
(D.El.Ed.), by whatever name it was called in that State.
C.He should then pass an examination to be conducted by
the State known as Teachers Eligibility Test or TET.
25.The academic authority, which is NCTE considered the
appointment of trained and qualified teachers as an absolute
necessity in primary schools. It is for this reason that the
qualification which was prescribed for a teacher in primary school
was a diploma in elementary education (D.El.Ed.), and not any
other educational qualification, including B.Ed. Apart from this
the teachers eligibility test or TET would further test the skills of
a candidate to handle students at primary level.
It must be emphasised that the pedagogical approach
required from a teacher at primary level is in some manners
unique. These are the initial formative years where a student has
just stepped inside a classroom, and therefore needs to be
handled with care and sensitivity. A candidate who has a diploma
in elementary education (D.El.Ed.) is trained to handle students
at this level, as he has undergone a pedagogical course
specifically designed for this purpose.
The ‘Academic Authority’ which is NCTE is mandated by the
Act to set up a curriculum and evaluation procedure for the all
round development of a ‘child’, mindful of all the fears and
anxieties which a child may have. Section 29 of the Act reads as
under :-
29. Curriculum and evaluation procedure.— (1)
The curriculum and the evaluation procedure for
elementary education shall be laid down by an
academic authority to be specified by the
appropriate Government, by notification.
(2) The academic authority, while laying down the
curriculum and the evaluation procedure under
sub-section (1), shall take into consideration the
following, namely:—
(a) conformity with the values enshrined in
the Constitution;
(b) all round development of the child;
(c) building up child's knowledge,
potentiality and talent;
(d) development of physical and mental
abilities to the fullest extent;
(e) learning through activities, discovery and
exploration in a child friendly and child-
centered manner;
(f) medium of instructions shall, as far as
practicable, be in child's mother tongue;
(g) making the child free of fear, trauma and
anxiety and helping the child to express
views freely;
(h) comprehensive and continuous
evaluation of child's understanding of
knowledge and his or her ability to apply
the same.”
As we can see the curriculum and evaluation procedure
which the ‘Academic Authority’ is mandated to set up requires a
pedagogical approach which can be best given by teachers who
are trained to deal with child students.
A person who has a B.Ed. qualification has been trained to
impart teaching to secondary and higher secondary level of
students. He is not expected to impart training to primary level
students.
In order to appreciate the difference between Diploma in
Elementary Education (it is called by different names in each
State), and Bachelor of Education (B.Ed.), we look no further
than the Notifications issued by National Council for Teacher
Education (NCTE) itself from time to time.
The Appendix 2 to the NCTE Regulations, 2009 spells out as
to what is the aim of Elementary Education. It is stated to be as
follows:
“1. Preamble
1.1 The Diploma in Elementary Education (D.El.Ed) is a
two year professional programme of teacher education. It
aims to prepare teachers for the elementary stage of
education, i.e. classes I to VIII. The aim of elementary
education is to fulfill the basic learning needs of all
children in an inclusive school environment bridging
social and gender gaps with the active participation of
the community.
1.2 The elementary teacher education programme carries
different nomenclatures such as BTC, J.B.T, D.Ed. and
(Diploma in Education). Henceforth, the nomenclature of
the programme shall be the same across all states and it
shall be referred to as the ‘Diploma in Elementary
The same Regulation in its appendix 4 describes B.Ed as
follows:
"1. Preamble
The Bachelor of Education programme, generally known
as B.Ed., is a professional course that prepares teachers
for upper primary or middle level (classes VI-VIII),
secondary level (classes IX-X) and senior secondary level
(classes XI-XII). The programme shall be offered in
composite institutions as defined in clause (b) of
Regulations 2.”
It is therefore clear that a B.Ed. course is not designed for
teaching at primary level.
Moreover, the inclusion of B.Ed. candidates for primary
classes is in the teeth of several decisions of this Court, as this
Court has consistently held that Diploma in elementary
education (D.El.Ed.) and not B.Ed., is the proper qualification in
Primary Schools.
26.In Dilip Kumar Ghosh and Others versus Chairman and
Others12, this Court had to decide on the question whether B.Ed
degree candidate can be equated with a candidate who holds
training in Primary School teaching or in other words who is
trained specifically for Primary Schools. The Contention of the
appellants (in the aforesaid case) who were B.Ed. candidates was
that, their course (B.Ed.), equips them to teach Primary Classes.
Their contention was rejected by this Court. In Para 9, it stated
as under:
“In B.Ed. curriculum such subjects like child psychology
are not found. On the other hand, the curriculum is of a
generic nature and deals with subjects like the principle
of educational-curriculum studies, educational
psychology, development of education in modern India,
social organization and instructional methods, etc.”
Then again in Para 10 it was stated as under:
“…………For teaching in the primary school, therefore,
one must know the child psychology and development of
a child at a tender age. As already noticed, the
candidates like the appellants who are trained in B.Ed.
degree are not necessarily to be equipped to teach the
students of primary class. They are not trained and
equipped to understand the psychology of a child of
tender age.”
In P.M. Latha and Another versus State of Kerala and
Others13 the argument that B.Ed. qualification is a higher
qualification than Diploma in Elementary Education (D.El.Ed.)
was rejected. Again, it was a case before the Apex Court where
B.Ed candidates, were claiming appointment as Primary School
teachers on the basis of the claim that their educational
qualification (i.e. B.Ed.) was even higher than the Diploma in
Elementary Education (D.El.Ed.) which was held by the other
candidates. In para 10 of the said case, it was stated as under:
“We find absolutely no force in the argument advanced
by the respondents that B.Ed. qualification is a higher
qualification than TTC and therefore, the B.Ed.
candidates should be held to be eligible to compete for
the post…………….”
These findings were reiterated by Supreme Court in Yogesh
Kumar v. Government of NCT, Delhi14, holding that though
B.Ed. is a well-recognized qualification in the field of teaching, yet
it is a training which equips a candidate to teach higher classes,
not classes at primary level.
27.B.Ed. is not a qualification for teachers at Primary level of
schooling. The pedagogical skills and training required from a
teacher at Primary level is not expected from a B.Ed. trained
teacher. They are trained to teach classes at higher level, post
primary, secondary and above. For Primary level i.e. class I to
class V the training is D.El.Ed or what is known as diploma in
elementary education. It is a D.El.Ed. training course which is
designed and structured to impart skills in a teacher who is to
teach Primary level of students.
Therefore, by implication the inclusion of B.Ed. as a
qualification amounts to lowering down of the ‘quality’ of
education at Primary level. ‘Quality’ of education which was such
an important component of the entire elementary education
movement in this country, which we have discussed in the
preceding paragraphs of this order.
28.We are also conscious of the fact that, till the notification
dated 28.06.2018, the consistent policy of NCTE had been to
exclude B.Ed. candidates from the eligibility criteria of Primary
School Teachers. In the 23.08.2010 notification – the first given
by NCTE in its capacity as the “academic authority” under
Section 23 of the RTE Act, which has been referred in the
preceding paragraphs, B.Ed. qualified teachers were not
considered for primary classes. All the same, purely in order to
equip the various State governments to establish enough training
colleges/centres for imparting specialised training centres for
elementary teachers, the B.Ed. candidates were to continue for a
very limited period.
29.This was during the initial period starting from the year
2010 onwards, when the Act and the subsequent order of NCTE
laid down the qualifications for Primary School Teachers
throughout the country. But essentially B.Ed. qualified teachers
were kept out from the purview of the eligibility of the teachers in
primary schools as B.Ed. was not considered a “qualification” for
teachers at primary level.
The inherent pedagogical weakness in B.Ed. courses (for
primary classes), is well recognised, and it is for this reason that
in the impugned notification itself it is provided that B.Ed.
trained teachers will have to undergo a six months training in
elementary classes, within the first two years of their
appointment.
In this background, the inclusion of B.Ed. candidates for
primary level classes is beyond our comprehension.
We have seen so far that the need for ‘quality’ and
meaningful primary education was emphasized by the legislature
as well as by the academic authority all throughout. In primary
education, any compromise on ‘quality’ of education would mean
going against the very mandate of Article 21A and the Act. The
value of Primary education can never be overstated.
Myron Weiner in his important book on Child Labour in
India15, links child labour problems in India to the lack of
effective measures in the past in the field of elementary
education. Great care must be taken to nurture these institutions
as our future takes shape in these classes. Victor Hugo had
famously said ‘one who opens a school door, closes a prison.’
Children still working in hazardous environment and juveniles in
conflict with law, in some measure, do point towards the
weakness in our elementary education system, both on its
accessibility and its ‘quality’.
The pedagogical skills of a teacher must be given a very high
priority. But our priority seems to be different. It is not to impart
‘quality’ education, but to provide more job avenues to B.Ed.
trained candidates, as this seems to be the only reason for their
inclusion, in presence of overwhelming evidence that B.Ed.
course is not a suitable course for primary classes.
15 Weiner Myron (1991) : The Child and the State In India in Comparative Perspective --
Princeton University Press
The material which has been placed before this Court in the
form of official communications and meetings at the highest level
makes it clear that in the present case the decision taken by
NCTE is not an independent decision of an expert body which is
created by the statute and mandated to take independent
decisions. The aim of NCTE is to improve the standard of
education and not to provide further avenues for employment to
B.Ed. trained teachers. We may also mention that this is being
done when teachers trained in elementary education can be
employed only as teachers in elementary schools and nowhere
else, when compared to B.Ed. qualified teacher, who can be
employed in senior elementary classes (VI to VIII), as well as
secondary and higher secondary classes. It is therefore in any
case not fair on the Diploma holders, who will now be seeing the
only space available for them shrinking further.
The inclusion of B.Ed. as a ‘qualification’ was done by the
notification dated 28.06.2018, which was impugned before the
Rajasthan High Court. This notification is reproduced below: -
“National Council for Teacher Education
Notification
New Delhi, the 28th of June, 2018
F. No. NCTE-Regl 012/16/2018-In exercise of the powers
conferred by sub-section (1) of Section 23 of Right to
Children to Free and Compulsory Education Act, 2009
(35 of 2009) and in pursuance of notification number S.P.
750(E), dated the 31st March, 2010 issued by the
Department of School Education and Literacy, Ministry of
Human Resource Development, Government of India, the
National Council for Teacher Education (NCTE) hereby
makes the following further amendments to the
notification number F.N. 61-03/20/2010/NCTE/(N&S),
dated the 23rd August, 2010 published in the Gazette of
India, Extraordinary, Part III, Section 4, dated the 25th
August, 2010 hereinafter referred to as the said
notification namely:-
(1) In the said notification, in para 1 in sub-para (i), in
clause (a) after the words and brackets “Graduation and
two year Diploma in Elementary Education (by whatever
name known), the following shall be inserted, namely:-
“Graduation with at least 50% marks and Bachelor of
Education (B.Ed.)”
2. In the said notification in para 3, for sub-para (a), the
following sub-para shall be substituted namely:-
“(a) who has acquired the qualification of Bachelore of
Education from any NCTE Recognized institution shall be
considered for appointment as a teacher in classes I to V
provided the person so appointed as a teacher shall
mandatorily undergo a six month Bridge course in
Elementary Education recognized by the NCTE, within
two years of such appointment as primary teacher”
(Emphasis supplied)
30.The sequence of events, which are now well established by
the documents which were placed before the Rajasthan High
Court and before this Court, make it clear, that the decision to
include B.Ed. as a qualification was apparently triggered by a
letter of the Commissioner of KVS16, who made a request
requested that since in the Primary classes of Central Schools
sufficient number of trained Diploma holders are not available,
they may be permitted to appoint B.Ed. qualified teachers, who
are readily available. The Ministry takes cognizance of this letter,
meetings are held and ultimately it directs NCTE to appoint B.Ed.
trained teachers not just in central schools but in primary
schools throughout the country, which would include State run
schools. The sequence of how it happened is as under.
A meeting was held on 28.05.2018 in the Ministry of
Human Resource Development, headed by the Minister
concerned. In the meeting it was decided to recognize B.Ed. as an
additional eligibility criterion for the appointment to the post of
primary teachers in KVS Schools. This was followed by a note on
the very next day, i.e., 29.05.2018, which says that since B.Ed.
qualified candidates were eligible to be appointed as primary
teachers in KVS Schools, there should be no objection to
implement this direction in other schools as well. These
communications culminate in a letter dated 30.05.2018 issued by
the Ministry of Human Resource Development, which was in the
16 Kendriya Vidyalaya Sangathan – An autonomous body under Ministry of Education,
Government of India, which looks after the management of Central Schools throughout the
country.
form of a direction issued under Section 29 of the NCTE Act
which required NCTE to amend the eligibility criteria to include
B.Ed. qualified candidates as Primary Teachers. Complying with
the above directions, NCTE issued the impugned notification on
28.06.2018.
The minutes of the meeting dated 28.05.2018, disclose the
reason as to why B.Ed. should be included as a qualification.
These minutes state as under :-
2.The matter was considered in this Ministry and
HRM has approved the proposal of KVS to recruit
primary teacher with higher qualification (i.e. B.A./B.Sc.,
B.Ed.+ TET). Further, HRM has also directed that NCTE
may amend the qualification and make B.A./B.Sc.,
B.Ed. also eligible for teaching at Primary level with
provision of completing Pedagogical module in 2 years of
joining the service, these directions were conveyed to
NCTE on 12.04.2018, however, the action is still pending
at their part.
3.The matter was again discussed and deliberated in
detail in the meeting held today (28th May, 2018)
chaired by HRM and attended by Special Secretary,
and KVS Commissioner. KVS Commissioner raised the
issues of insufficient number of candidates applying for
the post of Primary teachers and candidates applying
from few states rather than across the country. It was
informed by MS, NCTE that approximately 7.5 lakh seat
are available for D.El.Ed across the country out of which
50% seats are filled. However, the TET pass D.El.Ed.
candidate would be much less as the result of TET
varies from 6% to 16%. This makes the availability of
eligible D.El.Ed. candidates much less than the desired.
HRM also pointed out the need for better equipped
teachers to ensure quality education in schools.
Recruitment of Teachers with higher qualifications will
ultimately be beneficial and in the interest of the
students.
4.In addition to above, NCTE will roll out four year
B.Ed. integrated course from next academic year,
therefore, the prevalent D.El.Ed./B.Ed. etc will phase out
in time bound manner. Further similar kind of request
has also been from the state of Uttrakhand.
5.In view of the above discussions, HRM directed
NCTE to change its regulations, Directions are required to
be given under section 29 of the NCTE Act, 1993. Section
29 of the NCTE Act is as follows:
(1) The Council shall in the discharge of its functions and
duties under this Act be bound by such directions on
questions of policy as the Central Government may give
in writing to it from time to time.
(2) The decision of the Central Government as to whether
a question is one of policy or not shall be final.
(6) We may request NCTE to submit draft notification to
amend NCTE regulations at the earliest. The draft letter
is attached for approval please. Once the draft
notification is received, the same will be sent to
Legislative Department for vetting with the approval of
Submitted.”
The minutes of the meeting dated 29.05.2018 state as
under :-
“Note dated 29.05.2018
Please place on file the letter from NCTE which was
handed over to the HRM by the MS, NCTE during the
meeting, the details of which have been referred to in the
draft reply. The meeting clearly took the decision that in
view of the facts presented by the Commissioner, KV and
since the NCTE did not have any objection to permit KV
schools to recruit primary teachers with higher
qualifications, then there should be no objection to
extending this to other schools, and therefore, this
Ministry could issue directions to the NCTE under
Section 29."
Letter dated 30.05.2018 from the Government to NCTE.
“Letter Dated 30.05.2018
Priority
F.No.11-15/2017-EE.10-Part (1)
Government of India
Ministry of Human Resource Development
Department of School Education & Literacy
Shastri Bhawan, New Delhi,
Dated the 30th May, 2018
The Chairperson NCTE,
Hans Bhawan,
Bahadur Shah Zafar Marg,
New Delhi – 110002.
Dear Madam,
Kindly refer to the letter of even no. dated
12.04.2018 regarding request of Kendriya Vidaylaya
Sangathan for recruiting primary teachers with higher
qualifications i.e. B.A./B.Sc., B.Ed. plus TET pass
and letter no. NCTE-REG1012/16/2018-
US(Regulation)-HQ dated 23.05.2018 received from
NCTE regarding the same.
2.The above request has been considered in this
Ministry. In order to safeguard the interest of the
students and ensure the quality of education, the
competent authority has decided to agree to the request
of KVS to recruit Primary Teachers with Higher
Qualifications . The insufficient number of eligible
D.EI.Ed. candidates due to low pass percentage of TET
examination has also become an issue for recruitment of
primary teachers. Further, with the roll out of four year
B.Ed. integrated course from next academic year, the
existing D.EI.Ed./B.Ed. courses will be phased out in
due course of time.
3.NCTE vide their letter No. NCTE-
REG1012/16/2018-US(Regulation)-HQ dated
23.05.2018 stated that “the MHRD may consider
implementing the direction in the detailed noting of
Hon’ble Minister of Human Resource Development,
Government of India”. Further, in view of the facts
presented by the Commissioner, KV and since the NCTE
did not have any objection to permit KV schools to recruit
primary teachers with higher qualifications, then there
should be no objection to extending this to other schools.
Therefore, considering the powers vested in MHRD under
Section 29 of the NCTE Act, 1993, the NCTE Regulation
25.08.2010 (Determining qualification of teacher to be
appointed at primary level Classes 1st to 5th) shall be
amended to include that any person who has acquired
the qualification of B.Ed. from any NCTE recognized
course will also be considered for appointment as a
teacher in classes 1st to 5th provided the person so
appointed as a teacher shall mandatorily undergo a 6
month bridge course, which is recognized by NCTE,
within two years of such appointment as primary
teacher.
4. It is therefore, requested that the draft notification to
amend the NCTE regulations may please be submitted to
this Ministry. This may please be treated as most
urgent.
With regards,
Yours Sincerely,
(Rashi Sharma)
Director(TE)”
This is followed by the notification dated 28.06.2018, issued
by NCTE, which has already been referred above.
31.The sequence of events show that what started as an
exercise for consideration of B.Ed. qualified candidates as
teachers for Primary classes in Central schools, was expanded to
include all primary schools throughout the country. The
apparent reasoning given is that B.Ed. qualified candidates are
better suited for appointment as teachers in Primary schools, as
they have ‘higher qualifications’, and as such they should be
appointed as teachers in all Primary schools. Another reason for
doing this is the dearth of qualified TET candidates. The figures
given in the meeting suggests that only 6% to 16% of the
candidates who appear in the TET examination qualify the test.
The suggestion appears to be that with the inclusion of B.Ed.
candidates the number of TET qualified candidates would
increase. But this logic does not hold good when B.Ed. as a
qualification has not passed the basic pedagogical threshold for
teaching primary classes.
We have already examined this aspect in great detail. B.Ed.
is not a qualification for teaching at Primary level of classes,
much less a better or higher qualification, in context of Primary
classes. This finding is self-evident in the very admission of NCTE
which mandates that all B.Ed. qualified teachers who are
appointed to teach Primary level classes must mandatorily
undergo a pedagogical course for elementary classes within two
years of their appointment.
32.In Society for Unaided Private Schools of Rajasthan v.
Union of India & Anr. (supra) this Court while upholding the
validity of the RTE Act, held that primary education, which is
now a part of fundamental right under Part III of the
Constitution, has to be a meaningful education, and not just a
formality. When Diploma in elementary education (D.El.Ed.), was
placed as an essential qualification for teachers in Primary
school, it was with a purpose, and the purpose was to declare
only such teachers as qualified who are trained to impart
education to children at ‘primary level’. The pedagogy for a child
who has just entered the school, is an important consideration. A
child has come to face a “teacher”, so to speak, for the first time
in a class room. It is the beginning of a journey for the child
student and therefore world over great care is taken in laying
down proper foundations in these formative years. Well qualified
and trained teacher in elementary school is an extremely vital
aspect. A teacher must be trained to teach students at “primary
level”, and this is precisely what the training of Diploma in
elementary education (D.El.Ed.) does; it trains a person to teach
children at primary level. B.Ed. is not a ‘higher qualification’, or a
better qualification, as is being canvassed in its favour, while
comparing it with ‘Diploma in elementary education’. B.Ed. is a
different qualification; a different training. Even assuming it is a
higher qualification, it would still not be a suitable qualification
for primary level of classes. Unlike Diploma in elementary
education (D.El.Ed.), B.Ed. does not equip a teacher to teach at
primary level. This fact is implicitly recognised in the Notification
as well (notification dated 28.06.2018), which still requires a
person, who is appointed as a teacher with B.Ed. qualification to
‘mandatorily undergo a six-month Bridge Course in Elementary
Education’. This defeats the very logic of including B.Ed. as a
qualification, as the very notification which pushes for the
inclusion of B.Ed., also recognises its inherent pedagogical
weakness in its relation to primary classes. It is to cover this
defect, that all such candidates, must undergo a mandatory six
months Bridge Course in elementary education! The irony here
is that all this is being done when the State of Rajasthan already
has more than the required number of Diploma qualified
candidates available. This is besides the fact that there is
presently no such “bridge course” available; at least there was
none till the disposal of the petition by the Rajasthan High Court.
33.Under these circumstances, we are unable to comprehend
as to what was the pressing need to include B.Ed. candidates,
who are admittedly not fully trained to take up Primary Classes!
Consequently, the decision of the NCTE to include B.Ed. as a
qualification for teachers in a primary school seems arbitrary,
unreasonable and in fact has no nexus with the object sought to
be achieved by the Act i.e. Right to Education Act, which is to give
to children not only free and compulsory but also ‘quality’
education.
34.In our considered opinion therefore NCTE was not justified
in including B.Ed. as a qualification for appointment to the post
of primary school teacher (Level-1), a qualification it had so far
consciously kept out of the eligibility requirement. The Rajasthan
High Court by way of the Impugned Judgement had rightly struck
down the notification dated 28.06.2018, on the following
grounds:-
“(i) The impugned notification dated 28.06.2018 is
unlawful because: -
(a) it is under the direction of the Central Government,
which power the Central Government under Subsection
(1) of Section 23 of the RTE Act did not have; and
(b) it is not in exercise of power of the Central
Government under Sub-section (2) of Section 23 of RTE
Act relaxing the eligibility criteria prescribed by the
NCTE, nor there has been any exercise for ascertaining
existence of the conditions precedent for exercising such
power.
(ii) The petitioners have locus standi to challenge the
notification dated 28.06.2018. Merely because an
additional qualification is recognized as one of the
eligibility criteria, the petitioners cannot be prevented
from challenging it.
(iii) Accepting a candidate with B.Ed. degree as eligible
for appointment and thereafter subjecting him to
complete the bridge course within two years of
appointment is in the nature of relaxing the existing
eligibility criteria, which the Central Government could
have done only within Sub-section (2) of Section 23 and
subject to existence of circumstances necessary for
exercise of such power.
(iv) The State Government could not have ignored the
notification of NCTE dated 28.06.2018 while issuing
advertisement for REET. However, when we have
declared that this notification is illegal and are in the
process of setting aside, the issue becomes one of
academic value.
35.One important aspect of the present case must now be dealt
with, on which much emphasis was laid by the counsel for the
appellant. The submission is that the Central Government in any
case is the final authority in deciding as to what qualification has
to be there for teachers and the NCTE is bound to follow the
directions of the Central Government in this regard. Reliance was
placed on two provisions of National Council for Teacher
Education Act, (NCTE Act), Section 12A and Section 29. We must
examine these provisions in the light of the submissions made
before us.
Section 12A of the Act, reads as under:
“12A. Power of Council to determine minimum
standards of education of school teachers. -- For the
purpose of maintaining standards of education in
schools, the Council may, by regulations, determine the
qualifications of persons for being recruited as teachers
in any pre-primary, primary, upper primary, secondary,
senior secondary or intermediate school or college, by
whatever name called, established, run, aided or
recognised by the Central Government or a State
Government or a local or other authority:
Provided that nothing in this section shall adversely
affect the continuance of any person recruited in any pre-
primary, primary, upper primary, secondary, senior
secondary or intermediate schools or colleges, under any
rule, regulation or order made by the Central
Government, a State Government, a local or other
authority, immediately before the commencement of the
National Council for Teacher Education (Amendment) Act,
2011 (18 of 2011) solely on the ground of non-fulfilment
of such qualifications as may be specified by the
Council:
Provided further that the minimum qualifications of a
teacher referred to in the first proviso shall be acquired
within the period specified in this Act or under the Right
of Children to Free and Compulsory Education Act, 2009
(35 of 2009).]”
Section 12A was inserted in the NCTE Act that is after the
enactment of Right to Education Act, 2009. Section 12A only
compliments Section 23 of the Right to Education Act, which we
have already discussed in the preceding paragraphs.
Next, we come to the Section 29 of the NCTE Act which is as
under:
“29. Directions by the Central Government : (1) The
Council shall, in the discharge of its functions and duties
under this Act be bound by such directions on questions
of policy as the Central Government may give in writing
to it from time to time.
(2) The decision of the Central Government as to whether
a question is one of policy or not shall be final.”
It was submitted that by a notification dated 28.06.2018,
NCTE has only followed the directions of the Central Government
which are in the nature of a policy. Further it is also evident from
the minutes of the meeting dated 28.05.2018 where it was
clarified that the direction of the Central Government to include
B.Ed. as a qualification is a direction under Section 29 of the Act.
The NCTE is bound to follow the directions of the Central
Government in this regard and the direction in the present case
was to include B.Ed. as a qualification for teachers in primary
school, which has been done by NCTE through notification dated
28.06.2018, are the submission of the learned counsel for the
appellants as well as that of the learned ASG Ms. Aishwarya
Bhati on behalf of the Union of India. Moreover, as per sub-
Section (2) of Section 29, the decision of the Central Government
as to what constitutes a policy decision will ultimately matter, is
also the argument.
36.The introduction of B.Ed. as a qualification by NCTE on the
directions of the Central Government is a policy decision of the
Government, as has been submitted before this Court, and is also
evident from the sequence of events, the minutes of the various
meeting and the order passed in this regard. Section 29 of NCTE
Act which mandates that NCTE must follow the directions of the
Central Government in discharging of its functions. It is a policy
decision which binds NCTE.
We have absolutely no doubt in our mind that policy
decisions of the Government should normally not be interfered
with, by a constitutional Court in exercise of its powers of judicial
review. At the same time if the policy decision itself is contrary to
the law and is arbitrary and irrational, powers of judicial review
must be exercised.
A policy decision which is totally arbitrary; contrary to the
law, or a decision which has been taken without proper
application of mind, or in total disregard of relevant factors is
liable to be interfered with, as that also is the mandate of law and
the Constitution. This aspect has been reiterated by this Court
time and again.
Judicial review becomes necessary where there is an
illegality, irrationality or procedural impropriety. These principles
were highlighted by Lord Diplock in Council of Civil Service
Unions v. Minister for the Civil Service17 (commonly known as
CCSU case). The above decision has been referred by this Court
in State of NCT of Delhi v. Sanjeev18. This view was reiterated
again by this Court in State of M.P. & Ors. v. Mala Banerjee19 :-
“6. We also find ourselves unable to
agree with the appellants' submission
that this is a policy matter and,
therefore, should not be interfered with
by the courts. In Federation of Railway
Officers Assn. v. Union of India [(2003) 4
SCC 289] , this Court has already
considered the scope of judicial review
17 (1984) 3 All ER 935 : 1985 AC 374 : (1984) 3 WLR 1174 (HL)
and has enumerated that where a policy
is contrary to law or is in violation of the
provisions of the Constitution or is
arbitrary or irrational, the courts must
perform their constitutional duties by
striking it down...”
In Brij Mohan Lal v. Union of India20 this Court reiterated
on this aspect and made out a distinction as to where an
interference to a decision is required, and whereas it is not :-
“100. Certain tests, whether this Court should
or not interfere in the policy decisions of the
State, as stated in other judgments, can be
summed up as:
(I)If the policy fails to satisfy the test of
reasonableness, it would be
unconstitutional.
(II)The change in policy must be made
fairly and should not give the
impression that it was so done
arbitrarily on any ulterior intention.
(III)The policy can be faulted on grounds
of mala fides, unreasonableness,
arbitrariness or unfairness, etc.
(IV)If the policy is found to be against any
statute or the Constitution or runs
counter to the philosophy behind these
provisions.
(V)It is dehors the provisions of the Act or
legislations.
(VI)If the delegate has acted beyond its
power of delegation.
101. Cases of this nature can be classified
into two main classes: one class being the
matters relating to general policy decisions of
the State and the second relating to fiscal
policies of the State. In the former class of
cases, the courts have expanded the scope of
judicial review when the actions are arbitrary,
mala fide or contrary to the law of the land;
while in the latter class of cases, the scope of
such judicial review is far narrower.
Nevertheless, unreasonableness,
arbitrariness, unfair actions or policies
contrary to the letter, intent and philosophy of
law and policies expanding beyond the
permissible limits of delegated power will be
instances where the courts will step in to
interfere with government policy.”
The decision whether to include or exclude B.Ed. as a
qualification for teachers in primary school is an academic
decision, which has to be taken after proper study by the
academic body i.e. NCTE and should be better left to this expert
body.
But as we have seen the decision to include B.Ed. as a
qualification is not an independent decision of NCTE, but it was
the decision of the Central Government and NCTE was simply
directed to carry it out for that being a direction under Section 29
of NCTE Act, a direction NCTE followed.
In the present case and in the larger context of the matter,
we cannot even see this as a policy decision. But without getting
into this argument, even presuming for the sake of argument that
the decision taken at the Government level to include B.Ed. as a
qualification for teachers at primary level is a policy decision, we
must say that this decision is not correct as it is contrary to the
purpose of the Act. In fact, it goes against the letter and spirit of
the Fundamental Right enshrined in the Constitution under
Article 21A. It is against the specific mandate of the Act, which
calls for a free, compulsory and meaningful primary education to
children. By including B.Ed. as a qualification for teachers for
primary school, the Central Government has acted against the
provisions of the Constitution and the laws. The only logic given
by the Central Government to include B.Ed. as a qualification is
that it is a ‘higher qualification’. This we have already seen is not
correct. Under these circumstances, we have no hesitation to say
that the notification has rightly been quashed and the decision of
the Division Bench of the Rajasthan High Court has to be upheld.
In our considered opinion therefore the direction of the
Central Government dated 30.05.2018 culminating in the
notification dated 28.06.2018 of NCTE are violative of the
principles as laid down in RTE Act. Not only this, the notification
goes against the purpose and the mandate of law, which is to
provide a meaningful and ‘quality’ primary education to children.
The entire exercise is also procedurally flawed. The
notification dated 28.06.2018 is not an independent decision of
NCTE taken after due deliberation, but it simply follows the
direction of the Central Government, a direction which fails to
take into consideration the objective realities of the day.
Having made the above determination we, all the same, are
also of the considered opinion that the State of Rajasthan was
clearly in error in not calling for applications from B.Ed. qualified
candidates, for the reasons that till that time when such an
advertisement was issued by the Rajasthan Government, B.Ed.
candidates were included as eligible candidates as per the
statutory notification of NCTE, which was binding on the
Rajasthan Government, till it was declared illegal or
unconstitutional by the Court. The Rajasthan High Court had
rightly observed as under :-
“..we are of the opinion that the State
Government could not have ignored the
notification while inviting applications for
REET. Even if the State Government was of
the opinion that such notification was
unconstitutional or for any reason illegal, the
same had to be stayed or set aside by a
competent court before it could be ignored.”
[Para 45 of the Impugned Judgement]
What the Rajasthan High Court had stated above is the
settled legal position. In a recent three Judge judgment of this
Court in State of Manipur & Ors. v. Surjakumar Okram &
Ors.21 this position that a statute which is made by a competent
legislature is valid till it is declared unconstitutional by a court
of law; has been reiterated.
37.Consequently, the Appeals are dismissed and the judgement
dated 25.11.2021 of the Rajasthan High Court is upheld. The
notification dated 28.06.2018 is hereby quashed and set aside.
The Writ Petitions and all pending applications stand disposed of
in light of the above order.
|
The Supreme Court on Friday ruled that Bachelor of Education (B.Ed) candidates are ineligible to hold primary school teacher posts. [Devesh Sharma v. Union of India and ors]
A Bench of Justices Aniruddha Bose and Sudhanshu Dhulia upheld a Rajasthan High Court decision to quash a 2018 National Council for Teacher Education (NCTE) notification allowing B.Ed candidates to be primary school teachers.
The Court made it clear that B.Ed is in no terms a qualification to teach at the primary level (classes I to V).
"The decision of the NCTE to include B.Ed. as a qualification for teachers in a primary school seems arbitrary, unreasonable and in fact has no nexus with the object sought to be achieved by the Act i.e. Right to Education Act, which is to give to children not only free and compulsory but also ‘quality’ education."
The top court further emphasised that elementary education is a fundamental right under Article 21A of the Constitution.
"Free and compulsory education for children becomes meaningless if we make compromise on its ‘quality’. We must recruit the best qualified teachers. A good teacher is the first assurance of ‘quality’ education in a school. Any compromise on the qualification of teachers would necessarily mean a compromise on the ‘quality’ of education," the judgment said.
After the High Court quashed the notification, the NCTE, certain B.Ed candidates, eligible diploma holders and the Union government moved the top court in appeal.
The Supreme Court noted that as per NCTE norms, the necessary qualification for primary teacher posts was a Diploma in Elementary Education (D.El.Ed.).
"A candidate who has a diploma in elementary education (D.El.Ed.) is trained to handle students at this level, as he has undergone a pedagogical course specifically designed for this purpose ... A person who has a B.Ed. qualification has been trained to impart teaching to secondary and higher secondary level of students. He is not expected to impart training to primary level students," the Bench explained.
It added that the NCTE notification was flawed since it relied on a communication from the Central government with respect to Kendriya Vidyalayas. The Central government had earlier written to the NCTE asking it to allow B.Ed teachers to hold primary teacher posts in view of a shortage in candidates.
The Court, however, stressed that B.Ed and diploma in education holders cannot be equated.
"B.Ed. is not a qualification for teaching at Primary level of classes, much less a better or higher qualification, in context of Primary classes. This finding is self-evident in the very admission of NCTE which mandates that all B.Ed. qualified teachers who are appointed to teach Primary level classes must mandatorily undergo a pedagogical course for elementary classes within two years of their appointment."
It added that "policy decisions" of the Central government that usually bind the NCTE can be reviewed if they are arbitrary and irrational.
"The decision to include B.Ed. as a qualification is not an independent decision of NCTE, but it was the decision of the Central Government and NCTE was simply directed to carry it out ... in the larger context of the matter, we cannot even see this as a policy decision ... we must say that this decision is not correct as it is contrary to the purpose of the (Right to Education) Act," the bench said.
The Central government's decision had failed to take into consideration 'objective realities', the Court added.
The appeals were accordingly dismissed.
Senior Advocates PS Patwalia and Meenakshi Arora appeared for the various B.Ed qualified candidates.
Senior Advocate Kapil Sibal represented the Diploma holders.
Senior Advocate Manish Singhvi represented the Rajasthan government.
Additional Solicitors General Aishwarya Bhati and Vikramjeet Banerjee represented the Central government.
|
Through: Ms. Petal Chandhok, Advocate.
versus
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Mr. Amit Mahajan,
Mr. Anil Soni, CGSC, Mr. Shriram
Tiwary, Mr. Amit Gupta, Mr. Akshay
Gadeock, Mr. Sahaj Garg, Mr. Vinay
Yadav, Mr. Rajat Nair, Advocates.
Mr. Rahul Mehra, Senior Advocate
with Mr. Satyakam, ASC Mr. Gautam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC and Mr. Chaitanya Gosain,
Advocate for GNCTD.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Curiae) and Mr. Anandh
Venkataramani, Ms. Mansi Sood, Ms.
Sonal Sarda and Mr. Areeb
Amanullah, Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
+ W.P.(C) 3031/2020 & C.M. No. 15227/2021, C.M. No. 15228/2021
C.M. No. 15229/2021, C.M. No. 15 358/2021, C.M. No. 15 359/2021
C.M. No. 15 360/2021, C.M. No. 15 361/2021,C. M. No. 15 362/2021
C.M. No. 15 363/2021
..... Petitioner
Through: Petitioner in person.
versus
..... Respondent
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Ms . Monika Arora,
Mr. Anil Soni, CGSC, Mr. Anurag
Ahluwalia,CGSC Mr. Shriram
Tiwary, Mr. Amit Gupta, Mr. Akshay
Gadeock, Mr. Sahaj Garg, Mr. Vinay
Yadav, Advocates.
Mr. Rahul Mehra, Senior Advocate
with Mr. Satyakam, ASC Mr. Ga utam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC , Mr. Santosh Tripathi, ASC, Mr.
Aditya P. Khanna and Mr. Chaitanya
Gosain, Advocate s for GNCTD.
Ms. Malvika Trivedi , Sr. Advocate
Mr. Tanmay Y adav, Ms. Eysha
Marysha, Mr. Abhisree Sujanya Ms.
Nihaarika Jauhari , Advocates.
Ms. Garima Prashad, Sr. Advocate
with Mr. Abhinav Agrawal,
Advocate.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Curiae) and Mr. Anandh
Venkataramani, Ms. Mansi Sood, Ms.
Sonal Sarda and Mr. Areeb
Amanullah, Advocates.
Mr. Ankur Mahindro & Ms Sanjoli
Mehrotra, Advocates for intervener
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
Through: Mr.Mahesh Agarwal with Mr.Rishi
Agrawala, Mr.Karan Luthra,
Mr.Ankit Banati, Adv s.
Mr. Ajay Kohli, Ms. Priyanka
Ghorawat, Mr. Raghav Marwaha,
Advocates for Delhi Heart and Lung
Institute.
versus
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Amit Mahajan, CGSC
Ms. Monika Arora, CGSC, Mr. Anil
Soni, CGSC, Mr. Shriram Tiwary,
Mr. Amit Gupta, Mr. Aks hay
Gadeock, Mr. Sahaj Garg, Mr. Vinay
Yadav, Advocates.
Mr. Rahul Mehra, Senior Advocate
with Mr. Satyakam, ASC Mr. Gautam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC and Mr. Chaitanya Gosain,
Advocate for GNCTD.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Curi ae) and Mr. Anandh
Venkataramani, Ms. Mansi Sood, Ms.
Sonal Sarda and Mr. Areeb
Amanullah, Advocates.
Mr. Anil Grover, Sr. Additional
Advocate General for Haryana with
Ms. Bansuri Swaraj, Additional
Advocate General for Haryana with
Mr. Siddhesh Kotwal, Ms . Manya
Hasija, Ms. Ana Upadhyay,
Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
..... Petitioner
Through: Ms. Prabhsahay Kaur, Advocate.
versus
..... Respondent
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Mr. Amit Mahajan,
Mr. Anil Soni, CGSC, Mr. Shriram
Tiwary, Mr. Amit Gupta, Mr. Akshay
Gadeock, Mr. Sahaj Garg, Mr. Vinay
Yadav, Advocates.
Mr. Rahul Mehra, Senior Advocate
with Mr. Satyakam, ASC Mr. Gautam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC and Mr. Chaitanya Gosain,
Advocate for GNCTD.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Curiae) and Mr. Anandh
Venkataramani, Ms. Mansi Sood, Ms.
Sonal Sarda and Mr. Areeb
Amanullah, Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
Through: Mr. Priyadarshi Manish with Mrs.
Anjal i J. Manish, Advocates.
Mr. Ajay Kohli, Ms. Priyanka
Ghorawat, Mr. Raghav Marwaha,
Advocates for Delhi Heart and Lung
Institute
versus
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Mr. Amit Mahajan,
Mr. Anil Soni, CGSC, Mr. Shriram
Tiwary, Mr. Amit Gupta, Mr. Akshay
Gadeock, Mr. Sahaj Garg, Mr. Vinay
Yadav, Advocates.
Mr. Rahul Mehra, Senior Advocate
with Mr. Satyakam, ASC Mr. Gautam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC and Mr. Chaitanya Gosain,
Advocate for GNCTD.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Curiae) and Mr. Anandh
Venkataramani, Ms. Mansi Sood, Ms.
Sonal Sarda and Mr. Areeb
Amanullah, Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
..... Petitioner
Through: Mr. Sidharth Dave, Sr. Advocate with
Ms. Varuna Bhandari with Ms. Bhakti
Vardhan, Mr. Tushar Thareja,
Advocates.
versus
..... Respondent
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Ms. Monika Arora,
Mr. Anil Soni, CGSC, Mr. Shriram
Tiwary, Mr. Amit Gupta, Mr. Akshay
Gadeock, Mr. Sahaj Garg, Mr. Vinay
Yadav, Advocates.
Mr. Rahul Mehra, Se nior Advocate
with Mr. Satyakam, ASC Mr. Gautam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC and Mr. Chaitanya Gosain,
Advocate for GNCTD.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Curiae) and Mr. Anandh
Venkataramani, Ms. Mansi Sood, Ms.
Sonal Sarda and Mr. Ar eeb
Amanullah, Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
..... Petitioner
Through: Mr. Alok Kr. Aggarwal, Adv. Ms.
Anushruti, Adv. Ms. Supreet Bimbra,
Adv and Ms. Simran Arora,
Advocate.
versus
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Ms. Monika Arora,
Mr. Anil Soni, CGSC, Mr. Shriram
Tiwary, Mr. Amit Gupta, Mr. Ak shay
Gadeock, Mr. Sahaj Garg, Mr. Vinay
Yadav, Advocates.
Mr. Rahul Mehra, Senior Advocate
with Mr. Satyakam, ASC Mr. Gautam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC and Mr. Chaitanya Gosain,
Advocate for GNCTD.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Cu riae) and Mr. Anandh
Venkataramani, Ms. Mansi Sood, Ms.
Sonal Sarda and Mr. Areeb
Amanullah, Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
Through: Mr, Sach in Datta, Sr. Advocate , Mr.
G. Tushar Rao, Sr. Advocate with
Ms. Ritika Jhurani
Mr. Dinesh Sharma, Ms. Ritika
Jhurani, Ms. Jipsa Rawat, Advocates
Mr. Ajay Kohli, Ms. Priyanka
Ghorawat, Mr. Raghav Marwaha,
Advocates for Delhi Heart and Lung
Institute
versus
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Ms. Monika Arora,
Mr. Anil Soni, CGSC, Mr. Shriram
Tiwary, Mr. Amit Gupta, Mr. Akshay
Gadeock, Mr. Sahaj Garg, M r. Vinay
Yadav, Advocates.
Mr. Rahul Mehra, Senior Advocate
with Mr. Satyakam, ASC Mr. Gautam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC and Mr. Chaitanya Gosain,
Advocate for GNCTD.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Curiae) and Mr. Anandh
Venkataram ani, Ms. Mansi Sood, Ms.
Sonal Sarda and Mr. Areeb
Amanullah, Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
Through: Mr, Sachin Datta, Sr. Advocate with
Mr. Dinesh Sharma, Ms. Ritika
Jhurani, Ms. Jipsa Rawat, Advocates
with Mr. D.K. Baluja, Medical
Director, Jaipur Golden Hospital
Mr. Ajay Kohli, Ms. Priyanka
Ghorawat, Mr. Raghav Marwaha,
Advocates for Delhi Heart and Lung
Institute.
versus
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Ms. Monika Arora,
Mr. Anil Soni, CGSC, Mr. Shriram
Tiwary, Mr. Amit Gupta, Mr. Akshay
Gadeock, Mr. Sahaj Garg, Mr. Vinay
Yadav, A dvocates.
Mr. Rahul Mehra, Senior Advocate
with Mr. Satyakam, ASC Mr. Gautam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC and Mr. Chaitanya Gosain,
Advocate for GNCTD.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Curiae) and Mr. Anandh
Venkataramani, Ms. Mansi So od, Ms.
Sonal Sarda and Mr. Areeb
Amanullah, Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
Through: Mr. Maninder Singh, Sr. Advocate,
and Mr. Aarush Bhatia, Adv ocate.
versus
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Ms. Monika Arora,
Mr. Anil Soni, CGSC, Mr. Shriram
Tiwary, Mr. Amit Gupta, Mr. Akshay
Gadeock, Mr. Sahaj Garg, Mr. Vinay
Yadav, Advocates.
Mr. Rahul Mehra, Senior Advocate
with Mr. Satyakam, ASC Mr. Gautam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC and Mr. Chaitanya Gosain,
Advocate for GNCTD.
Mr.Sacchin Puri, Sr.Adv. with
Mr.Sudhir Mishra, Mr.Ritwika
Nanda, Ms.Petal Ch andhok,
Ms.Rupali Gupta, Mr.Raghav Sethi,
Advs for Venkateshwar Hospital.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Curiae) and Mr. Anandh
Venkataramani, Ms. Mansi Sood, Ms.
Sonal Sarda and Mr. Areeb
Amanullah, Advocates.
Mr. Neeraj, Sahaj Garg, GP and M r.
Vedansh Anand, Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
+ W.P.(C) 5050/2021 & CM No. 15464/2021, CM No. 15465/2021
CM No. 15466/2021
Through: Mr. Krishnan Venugopal, Sr.Adv.,
Mr. Manan Verma, Adv., Mr. Aditya
N Prasad, Adv., Mr. Kaushik Mishra,
Adv.
versus
Through: Mr. Tushar Mehta, SGI, Mr. Chetan
Sharma, ASG, Ms. Monika Arora,
Anil Soni, CGS C, Mr. Shriram
Tiwary, Mr. Amit Gupta, Mr. Akshay
Gadeock, Mr. Sahaj Garg, Mr. Vinay
Yadav, Advocates.
Mr. Rahul Mehra, Senior Advocate
with Mr. Satyakam, ASC Mr. Gautam
Narayan, ASC, Mr. Anuj Aggarwal,
ASC and Mr. Chaitanya Gosain,
Advocate for GNCTD.
Mr. Rajshekhar Rao, Senior Advocate
(Amicus Curiae) and Mr. Anandh
Venkataramani, Ms. Mansi Sood, Ms.
Sonal Sarda and Mr. Areeb
Amanullah, Advocates.
Mr. Aseem Chaturvedi with Mr. Ajay
Bhargav, Advocates for INOX.
C.M. No . 15603/2021 in WP.(C) No. 4970/ 2021
1. Issue notice. Notice is accepted by Mr. Satyakam on behalf of the
GNCTD. This application has been moved on behalf of the State of
Haryana to seek cla rification in respec t of our order dated 27.04.2021
whereby we have, inter alia, directed taking over of the operations of Seth
Air Products at Palwal, Haryana whereat Seth Air Products was undertaking
gasification of liquid Oxygen, and supplying to Delhi . It is pointed out that
Seth Air Products undertakes the said process not only to supply Oxygen to
Delhi, but also to State of Haryana. It is stated in the application that as per
the allocation made by the Government of India, 21 MT of liquid Oxygen is
to be gassified in favour of the State of Haryana, and for the NCT of Delhi it
is 38.05 MT. We make it clear that the directions to take over the
supervision of the plant of Seth Air Products situated at Palwal, Haryana by
the officers of the GNCTD should not adversely affect the supply of Oxygen
to the State of Haryana in terms of the allocation made by the Central
Government.
2. The application stands disposed of.
3. Mr.Mehra, learned senior counsel for the GNCTD has projected
before us on the screen the hospital beds position both at ICU and non -ICU
beds in the NCT of Delhi. He submits that these figures have been uploaded
on the mobile application and website of the GNCTD, which is used to
reflect the availability of beds. As per the said dat a, there are 16,272 non-
ICU beds in the large hospitals in Delhi with over 100 beds. By applying
the formula worke d out by the Central Government – in consultation with
the ICMR , the requirement of oxygen for the said 16,272 beds per day is
304 MT. There are a large number of other hospitals and nursing homes
with less than 100 beds and their requirement put together is estimated at
120 MT of liquid oxygen per day .
4. Mr.Mehra submits that looking to the surge of cases and the
intimation that the pandemic may peak around 15th of May, the GNCTD is
making arrangemen ts to add another 15,000 non -ICU beds, which would
require 280MT of liquid oxygen per day .
5. As at present , there are 4,866 ICU beds and they are planned to be
augmented by another 1200 beds by 10.05.2021. T he existing requirement
of liquid oxygen for the 4,866 ICU beds is 272 MT. Mr.Mehta submits on
the basis of the existing hospital bed situation, the existing demand itself is
704 MT per day. This does not take into account the oxygen requirement to
treat patients at home, since there is severe sca rcity of COVID beds in the
hospitals . He points out that from the beginning , the demand raised by the
GNCTD from the Central Government for liquid oxygen has been 700 MT
per day , whereas allocation made was initially 480 MT, and the same was
revised to 490 MT. The demand of liquid oxygen after the aforesaid
augmentation of the bed capacity would be 976 MT, say 1000 MT. The
grievance of Mr.Mehra is that the allocation of 480 MT or 490 MT of liquid
oxygen per day to Delhi is far less than its requirement.
6. The learned Amicus Mr.Rao has drawn our attention to the allocation
made by the Central Government as on 20.04.2021. He submits that while
Delhi was allocated 480 MT – when its demand was 700 MT per day , there
are other instances, where the allocation wa s higher than the demand . Tw o
such instances are the States of Madhya Pradesh and Maharashtra . The
demand raised by the Madhya Pradesh was 445 MT per day and the
allocation was 543 MT per day, and in the case of Maharashtra demand
raised was 1500 MT per day, and the allocation was 1661 MT per day .
7. We have been shown the projected demands raised by other States
and the actual allotment made to them vide order dated 20.04.2021 . From
the same, it is pointed out that similar is the position with regard to
allotment of liquid oxygen to several other states , as opposed to their
projected demand.
8. Mr.Mehra states that the aforesaid figures in relation to the other
States have been picked up from the allocation order issued by the Central
Government on 20.04.2021.
9. At this stage itself, w e may make it clear that by no means we are
interested in securing, for NCT of Delhi, Oxygen more than what is
required, and that too at the cost of any other State, or Union Territory.
However, if the submissions of the learned Amicus and Mr. Mehra are t o be
accepted, it would appear that the Central Government needs to explain the
aforesaid aspect, for which we are granting time. Mr.Mehta wishes to take
instructions and file reply/affidavit in this regard. Let the reply/ affidavit be
broug ht on record before the hearing tomorrow. We would consider the
same tomorrow in view of the extremely urgent need of more medical
oxygen for the residents of the NCT of Delhi.
10. It goes without saying that the aforesaid reflect the arguments
advanced by lea rned Amicus, and Mr. Mehra, and our finding would be
premised on the affidavit/ response that the Central Government may file,
and the submissions advanced on this aspect.
11. With regard to the 8 PSA Plants which were sanctioned by the Central
Government to be set up in Hospitals in Delhi, the position informed to us is
that 2 Plants are already installed, and 2 Plants would be made operational
by tomorrow i.e. 30.04.2021. In respect of the remaining 4 Plants,
Mr.Mehra submits that there were certain amendme nts in the specifications
by the vendor of the Central Government, who is to install the said Plants,
and these changes have been carried out and communicated to all concerns.
Looking to the critical situation being faced by the NCT of Delhi, the
Central G overnment should instruct the vendor to expedite the installation of
the remaining 4 PSA Plants at the earliest. A status report clearly stating by
when the said 4 plaints would be installed and made operational be filed by
01.05.2021.
12. Mr. Tushar Rao, Senior Advocate, and Mr. M alhotra have pointed
that the U.P. State Government has requisitioned certain equipment called
“On Board Oxygen Generation System ”, which produces 1,000 Litres of
Oxygen per minute , from the DRDO. He submits that similarly the GNCTD
should make requisition of the said equipment/ Plant from the DRDO so that
the same could be installed at the earliest. We direct the GNCTD to take
immediate steps in this regard, and raise a similar request, as was raised by
the State of UP to the DRDO and all the concerned authoritie s. All the
concerned authorities are expected to respond with immediate dispatch
looking to the urgent and emergent need of Medical Oxygen in Delhi at this
point of time.
13. During the hearing, our attention has been drawn to the order passed
by the learne d Single Judge in W.P.(C) No. 5026/2021 and W.P.(C) No.
5066/2021 on 28.02.2021. It is submitted by all the counsels before us that
the issues being considered in those writ petitions by the learned Single
Judge are overlapping with the issued being consi dered by this Court in
these batch of petitions. We have gone through the said order an d it appears
to us that the issues dealt with by the learned Single Judge in the said order
are some of the issues that we are considering. Learned counsels submit that
to avoid any incongruent orders or conflicting and divergent orders, the said
proceedings may be called for by this Court.
14. Normally, such a request would be made before Hon’ble the Chief
Justice. However, since Hon’ble the Chief Justice is not ho lding Court
today, the said request has been made to one of us ( Vipin Sanghi, J ). Having
considered the order dated 28.04.2021 passed in the aforesaid writ petitions,
and submissions of learned counsels, and the fact that the said petition is
listed befor e the learned single judge today itself, it is directed that the said
writ petitions may be placed before this Court today itself, and be clubbed
with the batch of petitions that we are dealing with.
15. Mr. Aggarwal submits that a writ petition, namely W.P.( C) No. 5096/
2021 is listed before the learned Single Judge today at 02: 30 P.M, wherein
issue with regard to allocation of beds at Maharaja Agrasen Hospital is
being considered. Let the said writ petition be also placed before this Court.
16. Mr. Kawal Jeet Arora, learned Secretary, DSLSA is present. He
states that the Delhi Police has made seizure s of Remdesivir Drug, as well as
Oxygen Cylinders upon their conducting raids on premises of persons
alleged to be hoarding, and selling these essentials in b lack market . He
submits that as on 27.04.2021 , about 200 Oxygen Cylinders and 279 vials of
Remdesivir have been seized.
17. Mr. Arora submits that when there is huge shortage of the medicines,
the same should not be retained as case property, and the same s hould be
released for use by the patients after ensuring that the same is in usable
condition and is genuine. Similarly, for the cylinders, he submits that the
same should be put back in circulation for use by the needy patients. He
submits that an appli cation was moved before the concerned CMM for
release of the said case property. However that application has been rejected
on the ground that the District Commissioner is empowered to pass the order
under the Essential Commodities Act. Mr. Satyakam poin ts out that while
CMM, North has rejected the application for release of the said case
property, other CMMs have been passing orders for release. In any event ,
since the power to pass release orders lie with the District Commissioner s,
we direct the Distr ict Commissioner to pass orders for release of both – the
Oxygen Cylinders and the medicines , at the earliest . The released medicines
and Oxygen cylinders be made available for use by the Hospitals of the
GNCTD as allocated by the Secretary, Health.
18. Whenever any seizure is made of the medicine s/ Oxygen cylinders , ,
the IOs should immediate ly inform the concerned District Commissioner
about the same, and they should also proceed , without waiting for any
further orders , to ascertain the genuineness of the said medicine s. They
should also ensure that the said case property is kept in refrigera ted
environment , so that the same does not lose its efficacy and become non -
usable. The Dist rict Commissioners should proceed to pass orders for
release of the same without any delay.
19. We also direct the Delhi Police to immediately release the seize d
Remdesivir or other Drug used for treating COVID -19, or any Oxygen
cylinders , which are seized from the possession of the p atients or their
attendants, since they would have procured the same only out of desperation ,
and in need. However, the Delhi Police would be bound to conduct the
investigation in the case with the assistance and cooperation of all
concerned, which shall be rendered by the public at large. While releasing
the case property, it shall be ensured by the Delhi Police that photographs/
copies of the relevant documents are retained , so that the case could proceed
before the court concerned.
20. During the course of hearing, the Executive Director –Batra Hospital
has appeared and raised a grievance that in terms of the allocation order
dated 27.04.2021, the said hospital has not been supplied gas. He states that
two vendors have been allocated for supply of gas to th e said hospital
namely INOX and Goyal Gases. Whereas INOX has made the supplies,
Goyal Gases has not made the supplies.
21. Endeavors have been made to contact the representative of Goyal
Gases. However, his mobile phone is not answered, and he has not been
contacted. Mr.Mehra submits that all the suppliers of LMO should be called
upon to remain present on the next date of hearing and it should be
emphasized that they bound to comply with the allocation order dated
27.04.2021.
22. Let notice be issued to all the s uppliers of liquid medical oxygen to
the NCT of Delhi. Notice be served through Nodal Officers of the GNCTD.
When the suppliers present themselves, they should also keep available the
data with regard to the supplies made by them hospital -wise; quantity -wise
and time -wise since 27.04.2021.
23. It is pointed out by Mr.Tushar Rao that the allocation order qua
supply to hospitals/ nursing homes in cylinders needs correction. Insofar as
the Vinayak Oxygen is concerned, the allocation made against their name is
far in excess of their obligation to supply. Mr.Mehra states that the said
allocation order will be again examined and necessary changes be made
therein.
24. It is pointed by Mr.Sacchin Puri as well by Mr.Aditya Prasad that
there are several individuals and org anizations of NRIs and others abroad,
who are keen to provide aid and assistance for battling the COVID 19
pandemic by gifting medical equipment, such as, oxygen concentrators and
other equipment. They submit that there is no mechanism created by the
GNCT D to accept such imports. Let the GNCTD create a portal on their
website for the said purpose so that any person located abroad, desirous of
making the import of medical equipments to GNCTD , is in a position to
provide details and ship the equipment to India in the name of GNCTD.
Status report in this regard be filed by tomorrow i.e. 30.04.2021.
25. Mr.Chetan Sharma, learned ASG brought to our notice that the
Central Board of Indirect Taxes and Customs(CBIC) has taken the following
steps to encourage and smo othen the import of medicines and medical
equipment into India.
“A. All directions issued for facilitating import of all materials
related to Covid 19 Since 20th April ;-
1. CBIC has issued instructed all the field formations vide
letter dated 22.04.2021 t o clear all the RT -PCR Equipments and
other covid related materials on priority.
2. CBIC has issued Instruction No. 07/2021 – Customs dated
24.04.21 directing all Customs formations for urgent clearances
of COVID related imports.
3. CBIC has nominated Sh. Gaurav Masaldan, Joint
Secretary(Customs) as nodal officer for expeditious clearance of
covid related imports and handholding trade.
4. CBIC has nominated nodal offices at the local level to co -
ordinate the clearances and also published the same on the CBI C
Website.
5. Dedicated Helpdesk comprising of Toll free Helpline and
email ID has been set up on 25th April 2021 to handhold the trade
and handle grievances of the trade across the country .
B. Waiver of any duty/ cess for material related Covid 19
managem ent
1. CBIC has issued Notification No. 27/2021 -Customs (NT)
dated 20.04.2021 to exempt customs duty on import of Remdesivir
injection, Remdesivir API and Beta Cyclodextrin (SBEBCD) used
in the manufacture of Remdesivir, up to 31st October, 2021.
2. CBIC h as issued Notification No.28/2021 -Customs (NT)
dated 24.04.2021 to grant full exemption from Basic Customs
Duty and health cess on import of the following items related to
Oxygen and Oxygen related equipment for a period of three
months with immediate effe ct:
1. Medical grade Oxygen
2. Oxygen concentrator along with flow meter, regulator,
connectors and tubing
3. Vacuum Pressure Swing Absorption (VPSA) and
Pressure Swing Absorption (PSA) oxygen plants,
Cryogenic Oxygen Air Separation Units (ASUs)
producin g liquid/ gaseous oxygen
4. Oxygen Cannister
5. Oxygen Filling Systems
6. Oxygen Storage tanks, Oxygen cylinders including
cryogenic cylinders and tanks
7. Oxygen Generators
8. ISO Containers for Shipping Oxygen
9. Cryogenic Road transport tanks for O xygen
10. Parts of the above to be used for the manufacturer of
equipment for production, transportation, distribution or
storage of Oxygen
11. Any other device from which Oxygen can be
generated
12. Ventilators (capable of functioning as high -flow
devices ) with nasal canula; Compressors including all
accessories and tubing; humidifiers and Viral filters
13. High flow nasal canula device with all attachments
14. Helmets for use with non -invasive ventilation
15. Non -invasive ventilation oronasal masks for
ICU ventilators
16. Non -invasive ventilation nasal masks for ICU
ventilators
Apart from the above, it was also decided that Basic Customs Duty on
import of Covid vaccines be also exempted with immediate effect for a
period of 3 months. ”
26. He further submi ts that for general queries an email link has been set
up at Icegate Help Desk @ icegate.gov.in , as also a TOLL FREE No.i.e.
27. Let the said notifications and directives issued by the CBIC be placed
on record. Mr.Sharma states that the status repor t with regard to the cargos,
which are waiting clearance on customs ports – in relation to the COVID
detection and treatment, shall be placed on record by tomorrow i.e.
30.04.2021 in a sealed cover.
28. With regard to the development of a portal for bringing in
transparency in the matter of distribution of medicines, such as Remdesivir,
and other medicines, Professor Sanjay Dhir from IIT Delhi & Mr. Rajiv
Chauhan and Mr. Ravi Omar from NIC are present . Professor Dhir has
explained that the port al developed by the NIC has one shortcoming, namely
it does not have last stage disclosure about the identity of the patients to
whom medication would be administered. He states that he has already
communicated it to the NIC and suggested the modifications required in the
portal . He states that the NIC has agreed to carry out the necessary
modifications. Mr. Ravi Omar and Mr. Chauhan from the NIC state that the
Health Department of the GNCTD has to now provide their inputs so that
final shape to the portal could be given. We direct that this exercise should
be completed between NIC, GNCTD and Professor Dhir from IIT within the
next one day. The said portal shall be made operational by 01.05.2021.
29. List on 30.04.2021.
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While clarifying that it was not seeking more oxygen for the national capital at the cost of other States, the Delhi High Court today asked the Central government to explain how States of Madhya Pradesh and Maharashtra were getting more than their demand. (Rakesh Malhotra vs GNCTD)
In view of the submissions by Senior Advocate Rahul Mehra for Delhi government and the Amicus Curiae, Senior Advocate Rajshekhar Rao, a Division Bench of Justices Vipin Sanghi and Rekha Palli noted that while the projected demand of Delhi was 700MT per day, its allocation was only 480-490 MT per day.
At the same time, as opposed to the demands of Madhya Pradesh's 445MT and Maharashtra's 1500 MT, the allocation was 543 MT and 1661 MT, respectively, the Court recorded.
"We make it clear that by no means are we interested in securing for Delhi oxygen more than what is required and that too at the cost of any State or UT. However, if submissions of Mehra and Amicus are accepted, it would appear that centre needs to explain this aspect.", the Court observed.
"Point is.. projected demand for Delhi was 700. You gave 480. It doesn't appear to be falling in line.", the Court remarked as it stated that it "cannot accept" Solicitor General Tushar Mehta's submission that the incoming quantity of 340-370 MT to Delhi was "sufficient".
SG Mehta urged the Court to not get into pan-India allocation or "comparison", or "create panic" and argued,
"System is working. It is a dynamic situation. Court may consider trusting the system..Kitty is being rationalised."
The Court, however, remarked that panic was not on account of what was being said in court but what was happening on the ground.
Speaking to one of the Central government officers, the Court added,
"We've already had loss of lives in Delhi due to oxygen. You may have to look at it (allocation).. it has fallen on you to resolve it."
During the course of the hearing, as SG Mehta asked the officer to "cut from MP and give it to Delhi" even "at the lives of some in MP", the Court strongly responded,
"Don't project it like this. We don't appreciate. Let's not get emotional about it. These are facts and figures. You have to meet this head-on. You can't duck it."
Solicitor General said that he would file an affidavit on the issue of allocation.
The Court clarified that it would base its findings on Centre's affidavit and arguments advanced before it.
Delhi government also sought that "some responsibility" be fixed on the Centre with respect to supply of oxygen in the wake of its efforts to augment beds to deal with the surge which is expected around May 15.
"There is complete apathy for citizens of Delhi. Court will now have to pass an order.. no more of this should continue..If court would now direct them to provide us 1K MT otherwise we will just keep adding paper orders.. the beds will not have the only life-saving drug for COVID, oxygen:", Senior Advocate Mehra argued.
The matter would be heard tomorrow.
Read complete account of the hearing below:
Don't want oxygen at cost of others but explain how are Madhya Pradesh, Maharashtra getting more than demand: Delhi High Court to CentreReport by @aditi2118#COVID19India #OxygenShortage#OxygenCylinders @CMOMaharashtra @CMODelhi @OfficeofSSChttps://t.co/XD0yR90Ufm
Read the order:
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Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 1
% Reserved on : 7th October, 2022
Decided on : 19th January , 2023
Through: Mr. M. Sufian Siddiqui , Mr.
Rakesh Bhugra and
Ms. Alya Vero nica, Advocate s
Through: Mr. Sanja y Jain, ASG with
Mr. Nishant Tripathi , Mr. Aka sh
Kishore, Ms. Harshita Sukhija and
Ms. Tanya Aggarwal , Advocates
for respondents along with
Insp. Suhash Chand Yadav,
P.S Jamia Nagar
Ms. Nandita Rao, ASC (Criminal)
1. The petitioner/Amanatullah Khan (hereinafter referred to as “the
petitioner” ) filed the present petition under Article 226 of the Constitution
read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as “ the Code ”) for judicial review to seek quashing of the
„History Sheet‟ opened apropos the petitioner and the purported proposal
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 2
declaring him as „Bad Character‟ a nd the entry of the name of the petitioner
in the Surveillance „Register -X, P art- II, Bundle „A‟ at P.S . Jamia Nagar,
South -East and also for seeking directions to initiate legal/department al
action against the delinquent police officials for exercising powers under
Punjab Police Rules, 1934 (hereinafter referred to as the Rules ) in a mala
fide and perver se manner with material irregularities and impropriety .
2. In a social welfare State like India large number of administrative/local
authorities are being created to carry out welfare activities and these
authorities are vested with discretion. The discret ion when coupled with
word „Administrative‟ reflects that choosing from various available
alternatives but with reference to the rules of reasons and justice and not
according to personal whims and exercise of discretion should not be
arbitrary, vague or fanciful. The administrative discretion is latitude given to
the governmental agencies to interpret and implement the public policies .
The suitable control over exercise of discretion is necessary otherwise,
administrative authority may abuse or misuse the conferred power and may
convert in arbitrary body. The discretionary power conferred on an
administrative authority is not absolute and must be exercised within the
legal parameters.
2.1 The judicial review is a tool by which legality or lack of it can be
examined in exercise of administrative discretionary power or any
administrative action. The judicial review ensures that an individual is given
fair treatment by the authority and is designed to prevent excess and abuse
of power by any administrative aut hority and any probability of favouritism.
Judicial review is a suitable tool within the powers of the judiciary to set
aside any action taken by any public or administrative authority stated to be
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 3
inconsistent or in conflict with law. It was held in the case of Chief
Constable of North Wales Police V Evans, (1982) 3 All E R141 that the
purpose of judicial review is to ensure that the individual receives fair
treatment. In Laker Airways Ltd. V Department of Trade , (1977) 2 All E
R 182, it was observed that discretionary power is to be exercised for the
public good and this e xercise can be examined by the C ourts. Lord Diplock
in Council of Civil Service Unions V Minister for the Civil Service,
(1984) 3 WLR 1174 , observed that administrative action is subject to
judicial r eview on the grounds which are “Illegalit y”, “Irrationality” and
“Procedural Impropriety” .
2.2 In India, negation of arbitrariness in exercise of public power is
considered a cardinal component of the Rule of Law. The Courts in India
have inva lidated arbitrary exercise of administrative power. Article 14 of the
Constitution strikes at arbitrariness in State action and ensures fairness and
equality of treatment. The decision making process should be reasonable
and rational and should not be arbi trary and violative of Article 14 of the
Constitution. The Supreme Court i n E. P. Royappa V State of Tamil
Nadu, AIR 1978 SC 555 observed that Article 14 of the Constitution
embodied a guarantee against arbitrariness. The Supreme Court in Maneka
Gandhi V Union of India, AIR 1978 SC 597 observed that Article 14 of
the Constitution strikes at arbitrariness in State action and ensure fairness
and equality of treatment. The power of judicial review is considered to be
an integral part of constitutional system a nd is described as basic and
essential feature of the Constitution of India. It was also observed in S. R.
Bommai V Union of India , AIR 1994 SC 1917 that the purpose of judicial
review is to ensure that the individual is given fair treatment by the author ity
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 4
and is basic feature of the Constitution.
2.3 The power of judicial review has certain inherent limitation s and is not
without restrictions . Judicial review is concerned with legality rather than
merit s of the case. The Courts cannot substitute its own view in exercise of
power of judicial review. The judicial review is not an appeal against the
decision taken by the concerned authority. Judicial review is stated to be a
protection and not a weapon. The power of judicial review cannot be
exercised to ad minister law but to ensure that the government carries its
function in accordance with legal and constitutional principles. The
Supreme Court i n State of Punjab V Gurdial Singh, (1980) 2 SCC 471
observed as under: -
The Court is handcuffed in this jurisdict ion and cannot raise its
hand against what it thinks is a foolish choice. Wisdom in
administrative action is the property of the Executive and judicial
circumspection keeps the court lock -jawed save where power has
been polluted by oblique ends or is other wise void on well -
established grounds. The constitutional balance cannot be upset.
The Supreme Court i n Tata Cellular V Union of India, (1994)
6SCC651 observed that judicial review is concerned with reviewing and not
with the merits of the d ecision. It was observed as under: -
The judicial power of review is exercised to rein in any unbridled
executive functioning. The restraint has two contemporary
manifestations. One is the ambit of judicial intervention; the other
covers the scope of the co urt's ability to quash an administrative
decision on its merits. These restraints bear the hallmarks of
judicial control over administrative action.
Judicial review is concerned with reviewing not the merits of the
decision in support of which the applicat ion for judicial review is
made, but the decision -making process itself.
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 5
The Supreme Court in State of N.C.T. of Delhi & another V
Sanjeev @ Bittoo, Criminal Appeal bearing no . 498/2005 decided on
04.04.2005 also observed that the scope of judicial review of administrative
orders is limited to the legality of decision making process and not legality
of the order and mere possibility of another view cannot be a ground for
interference.
3. The facts as mentioned in the present petition are tha t the petitioner is a
Member of the Delhi Legislative Assembly from Okhla Constituency and as
such, he is representing the will of the people of his Constituency. The
petitioner is a popular leader of the masses and is enjoying his second term as
Member of Legislative Assembly (MLA). The petitioner has been the
Chairman of Minority Welfare Committee, Delhi Legislative Assembly and
is holding third term as Chairman of the Delhi Waqf Board. The petitioner in
the capacity of Chairman of Delhi Waqf Board is doing various charitable
functions including financial aid for medical treatment , education, house
construction, marriage , etc. to the needy and destitute persons across the
religions. The petitioner is also very active in providing shelter and
provisions to the victims of riots and natural calamities/pandemic.
3.1 The respondent no.1 being the Commissioner of Police is responsible for
the acts of his subordinate officers and to initiate legal/departmental action
against his delinquent subordinate police of ficials as contemplated in Delhi
Police Act, 1978.
3.2 The South Delhi Municipal Corporation (SDMC) on 12.05.2022 has
brought bulldozers/JCB Machines to tear down houses of the poor. The
petitioner being elected MLA from Okhla Constituency on 12.05.2022 a nd in
the capacity of the elected representative of the peop le and also in exercise of
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 6
his Fundamental Rights g uaranteed under Article s 19(1)(a), 19(1 )(b) and 21
of the Constitution was protesting in peaceful manner and without arms at
Kanchan Kunj falling within the jurisdiction of Police Station (PS), Kalindi
Kunj against the demolition drive undertaken by SDMC in that area. The
petitioner being representative of will of the people has taken stand that no
house of any poor should be demolished. The righ t to protest being covered
under Article 19 of the Constitution has a special place in a democracy and
the Supreme Court of India has held that the right to as sembly and peaceful
agitations are basic feature of a democratic system . The impo sition of Sectio n
144 of the Code is falling within the amb it of reasonable restriction but the
concerned authority on 12.05.2022 has not imposed prohibitory order s under
Section 144 of the Code . The protest of the petitioner on 12.05.2022 was only
in the interest of the local public .
3.3 The Delhi Police led by Additional Commissioner of Police (ACP) , Sarita
Vihar and accompanied by the personnel from Para Military Armed Forces
without any provocation and without giving any prior notice resorted to the
baton charge on th e protestors. The ACP, Sarita Vihar punched and pushed
the petitioner but the petitioner was protected by his unarmed bodyguards.
The petitioner was detained by the p olice along with ot her persons and was
taken to PS, Kalkaji at about 02:15 pm where he was unlawfully detained till
late in the evening. The police registered FIR bearing no 246/2022 under
sections 147/1 48/149/186/353/332/153 IPC against the petitioner and 4 -5
persons including his unarmed bodyguards. The petitioner was remanded to
the judicial remand till 13.05.2022 . The Police has brazenly trampled upon
the fundamental, human and statutory r ights of the petitioner and also flouted
the guidel ines as laid down by the Supreme Court in Dilip K. Basu V State
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 7
of West Bengal & others , (1997) 7 SCC 16 9 and did not follow the
directions given by the Supreme Court in Arnesh Kumar V State of Bihar ,
(2014) 8 SCC 273 at the time of registration of FIR bearing no.246/2022 . The
petitioner was arrested by the Delhi Police in violation of direction s given by
the Supreme Court in Arnesh Kumar . The respondent no.2 did not take any
action to protect the precious righ ts of the petitioner despite an e-mail sent to
the respondent no.2 by the Former Vice Chairman of Delhi Bar Council .
3.4 The petitioner on 13.05.2022 was to be produced before the Metropolitan
Magistrate and his bail application was to be considered. The petit ioner on
13.05.2022 had learnt from social media that SHO , PS Jamia Nagar i.e. the
respondent no .4 on 28.03.2022 had submitted a dossier to th e Assistant
Commissioner of Police (ACP) , New Friends Colony /respondent no . 3
(hereinafter referred to as “the respondent no . 3”) and Deputy
Commissioner of Police (DCP) , South East i.e. the respondent no.2
(hereinafter referred to as “the respondent no .2”) along with proposal of
opening History Sheet of the petitioner and to place his name as „Bad
Character‟ (BC) in „Register -X, Part -II, Bundle A‟ to keep a close
surveillance on his activities and said proposal also accompanied a list of
total 18 cases stated to be pending/registered against the petitioner. The
petitioner has already been discharged /acquitted /offence s compounded/FIR
quashed in 14 cases. The said proposal besides referring the petitioner as Bad
Character ( BC) also alleged that the petitioner has made a group consisting
of persons from his village and neighbo uring villages and is indulging in land
grabbing and illegal constructions besides creating t error in general ; most of
the cases against the petitioner are related to intimidation, threaten ing, hurt,
riots, causing hindrance and discharge of duties of public servants and
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 8
causing enmities between two groups/communities; and the petitioner has
become a habitual and desperate criminal of the area with no respect for the
law and he is repeatedly indulging in serious criminal activities. It was also
alleged that the petitioner has failed to deter him self from criminal activities
as such his activities need to be kept under surveillance . However , there was
no material to support these allegations.
3.5 The ap proval was sought from the respondent no. 3 and the respondent
no.2 on basis of above -mentioned allegations for opening of criminal hist ory
of the petitio ner. The respondent no .3 has approved the proposal o n
29.03.2022 and the respondent no .2 has also approved the proposal on
30.03.2022 in mechanical manner without recording definite reasons and
application of mind, which is in contravention of the Rule 23 of the Punjab
Police Rules, 1934. The Surveillance Register no. X is provided in Volume
III, Chapter XXIII of the Rules . The Rule 23.5 deals with entries in and
cancellation from Surveillance Register which clearly stipulates that
ordinarily before the name of any person is entered in Part II of the
surveillance register, a History Sheet shall be opened for such person. The
said Rule further stipulates that if from the entries in the History Sheet , the
Superintendent is of the opinion that such person should be subjected to
surveillance, he shall enter his name in Part II of the Surveillance Regis ter
but provided that the names of persons who have never been convicted or
placed on security for good behavior shall not be entered until the
Superintendent has recorded definite reasons for doing so. The said Rule
further provides that t he record of suc h reasons shall be treated as
confidential and the person concerned shall not be entitled to a copy thereof .
However n o definite reasons have been provided by the respondent no . 2
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 9
prior to according approval on the purported dossier and the proposal of the
petitioner. The Surveillance Register has to be written b y the Officer In -
charge of the police s tation and entry in Part -I can only be made by the order
of the Gazetted Officer. The Superintendent has further to record reasons for
doing so before entering the name of a person in Part II of the Register. The
History Sheet can be prepared under Rule 23.8 and said Rule clearly
prescribes that it requires great c are in doing so. The aforesaid R ules have
been enacted to ensure that the bad character or suspects thereto a re kept
under surveillance and check. The Circular dated 21.09.2000 issued by the
Deputy Commissioner of Police (Hqrs.) provides that the Deputy
Commissioner of Police must record reasons to keep the person‟s name in a
Surveillance Register .
3.6 The Supreme Court in Malak Singh V State of Punjab , AIR 1981 SC
760 held that the police do not have the license to enter the name of
whosoever they like in the Surveillance Register . The Deputy Commissioner
of Police under Rule 23.5 is not bound to open the History Sheet of an
offender. The expression “Ordinarily” used in said Rule leaves discretion
with the concerned officer to apply his mind and look at the conduct of the
accused in this regard.
3.7 The purported dossier along with the proposal and the offic ial noting at
the foot of the aforesaid proposal was supposed to be confidential as pe r Rule
23.5 of the Rules but it was circulated in a pre -planned manner o n
13.05.2022 at around 12.30 pm i.e. before the consideration of bail
application of the pe titioner at Saket Courts . The copies of the said dossier
were deliberately leaked by the Delhi Police to the print and social media.
The reputation of the petitioner was deserved to be preserved by the
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 10
concerned authorities and cannot be allowed to be sull ied with the passage of
time. The dossier and the proposal have been leaked by the police
deliberately in a public domain as the same has not been placed before the
concerned Metropo litan Magistrate who heard the Bail Application on
13.05.2022.
3.8 There was no proximate cause or immediate ostensible justifiable reason
which triggered SHO, PS Jamia Nagar /respondent no .4 (hereinafter referred
to as “the respondent no .4”) to prepare the purported dossier and proposal
of the petitioner on 28.03.2022 as the la st case which was stated to be
registered against the petitioner in 2021 whereas the purported proposal was
sent for approval on 28.03.2022 which was c onsequently approved by the
respondent no 2 on 30.03.2022 withou t recording the special reasons and
appli cation of mind . The mala fide conduct of the Delhi Police is also
manifestly apparent from the fact that the entire dossier and the purported
proposal has been d eliberately leaked in the media. The petitioner was also
subjected to inhuman and deg raded trea tment by ACP, Kalkaji without any
provocation on 12.05. 2022 during the demolition drive in contravention to
his fundamental rights as guarantee d under Article 21 of the Constitution .
The petitioner sent a legal notice dated 21.05.2022 whereby to call upon
respondent no.1 to revoke the proceedings in question but no response or
action was taken on the said legal notice.
3.9 The petitioner sought quashing of opening/approval of the History Sheet
declaring him as bad character and consequential entries in the Surveillance
Register being exercised by the respondent nos.2 to 4 on the grounds that it
was being exercised with irregularity and impropriety in a mala fide manner
and in contravention of the Rules as applicable to NCT of Delhi. The
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 11
proposed exercise of powers by the respondent nos.2 to 4 was devoid of any
application of mind and in brazen defiance of the Rules. The purported
approval accorded on petitioner ‟s proposal of „History Sheet‟ and „Bad
Character‟ by the respondent no s.3 and 4 was done in a mecha nical manner
and without recording any special or definite reasons. The respondents have
acted in a perverse and mala fide manner and without applying their minds as
no reasons were given by them and was in violation of circular dated
21.09.2000 issued by the DCP (Hqrs.) . The last case was registere d against
the petitioner on 03.04.2021 vide FIR bearing no.59/2021 and was also a
counterblast to the FIR lodged by the petitioner. The petition er has already
been discharged/ acquitted/ the cases have been compou nded in 14 cases out
of the 18 cases and the remaining 04 cases are pending for the
investigation /trial. The petitioner also raised other grounds as detailed in the
petition. The petitioner feeling aggrieved prayed as under: -
a. Quash the „History Sheet‟ o pened apropos the petitioner, the
purported proposal declaring him as „Bad Character‟, and the
Entry in the name of the petitioner, if any, in the Surveillance
„Register -X, Part -II, Bundle A‟ at P.S. Jamia Nagar, District:
South -East; and
b. Direct the res pondent no.1/Commissioner of Police to initiate
apposite legal/departmental action against the delinquent police
officials, viz. DCP -South East/respondent no.2 herein, ACP -
NFC/respondent no.3 herein, and SHO, P.S. Jamia
Nagar/respondent no.4 herein for exe rcising their powers under
the Punjab Police Rules, 1934 as applicable to the NCT of Delhi,
in a malafide and perverse manner with material irregularity and
impropriety, a nd
c. Grant any further relief, which this Hon‟ble Court may deem fit
and proper in t he facts and circumstances of the present case.
4. The respondent no.1 filed Status Report dated 27.07.2022 under the
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 12
signature of the respondent no 4 (hereinafter referred to as “Status Report” ).
It is stated in the Status Rep ort that the petitioner is involved in 22 criminal
cases and out of which 03 cases which were registered at Police Stations
Usmanpur, Anti -Corruption Bureau , Delhi and Parliament Street are under
investigation and the final reports in these cases shall be filed in the
concerned cour ts shortly. The 04 cases registered at PS Shaheen Bagh,
Kalindi Kunj, Civil Lines and Jamia Nagar are pending for trial before the
concerned courts . The investigating agency filed the supplemen tary charge
sheet in FIR bearing no. 302/2017 registered at PS Jamia Nagar before the
concerned c ourt on 15.07.2022 after further investigation, recording of
statement of witnesses and collecting other material witnesses for the
offences punishable under sections 147/148/149/323/341/356/379/506/34
IPC & 27 of the Arm s Act . The petitioner along with other persons has also
assaulted the then Chief Secretary, Delhi for which FIR bearing no. 54/2018
was also registered as P.S. Civil Lines and the charges have already been
framed by the trial c ourt against the petitione r on 11.08.2021. The cases at
PS Shaheen Bagh and PS Kalindi Kunj, were also registered against the
petitioner in the month of May 202 2 for assaulting , causing h urt and
obstructing public servants.
4.1 The De lhi Police at the level of ACP after consideri ng and appraisal of
the material/information available against th e petitioner regarding his
activities forwarded a proposal for keeping the petitioner under surveillance
for necessary approval and it was decided to maintain s urveillance of the
petitioner after following the due procedure under the Rules .
4.2 The respondent no . 4 throug h the respondent no .3 sent a formal proposal
to the respondent no .2 on 28.03.2022 for opening History Sheet of the
Neutral Citation Number:2023/DHC/000409
W.P.(CRL)1326/2022 Page 13
petitioner under the Rules. The respondent no .4 has approve d the opening of
the History Sheet of the petitioner on 30.03.2022 and entry of name of the
petitioner in Surveillance Register No. X Part -II after careful review based
on the pertinent information and justificat ion specified in the proposal, t he
name of the petitioner was entered in Register No. X, Part -II under Rule 23.4
after following the due procedure was subjected to the Surveillanc e. The
petitioner is not entitled to any information as to the Surveillance as per Rule
4.3 The petitioner and hi s supporter s on 09.05.2022 has obstructed the
SDMC staff from discharging their official duty during an Anti
Encroachment Removal Programme on Road Number 13, Shaheen Bagh for
which an FIR bearing no. 182/2022 under sections 186/353/34 IPC was got
register ed at P.S. Shaheen Bagh against the petitioner and other persons and
the case is pending before the Trial Court . The SDMC also conducted a
demolition program me in the vicinity of PS Kalandi Kunj on 12.05.2022 and
the p etitioner and his supporters arrived a nd attempted to impede the SDMC
workers from conducting the demolition and also pelted stones at the SDMC
staff and police officials. A ccordingly, FIR bearing no. 246/2022, under
sections 147/148/149/186/353/332/153 IPC, was got registered at P.S.
Kalandi Kunj. The petitioner along with his supporters was taken into
custody and arrested after following due process of law.
4.4 The petitioner was found to b e involved in 22 criminal cases for offences
such as hurt, molestation, assault on public servants, obs tructing police
officials from discharging their duties, criminal intimidation and corruption.
The Delhi Police has not circulated the History Sheet pertaining to the
petitione r on social media on 13.05.2022. I t is prayed that the present petition
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W.P.(CRL)1326/2022 Page 14
be dismi ssed.
5. Sh. M. Sufian Siddiqui, Advocate , the learned counsel for the petitioner
and Sh. Sanjay Jain, the learned Additional Solicitor General of India for the
respondents heard. Record and File bearing H.S.No 89A produced from
office of DCP, South East / the respondent no 2 are perused.
6. The learned counsel for the petitioner advanced oral arguments and also
submitted the written arguments. He argued t hat the approval accorded by
DCP was devoid of recording of definite reasons and Status Report is silen t
on this legal issue. The Delhi Police has leaked the confidential documents
pertaining to the petitioner to the rival political party and the spoke person of
the rival political part has circulated entire file pertaining History Sheet of the
petitioner t o the social media . The purported order of the respondent no 2 was
not part of the entire file pertaining to the History Sheet of the petitioner and
there was no whisper about the approval being gran ted by the respondent no
2 after recording definite reaso ns or that vide separate order, definite reasons
have been recorded .
6.1 The case of the p etitioner does not fall under clauses (a), (c) and (d) of
Sub-rule (3) of Rule 23.4. The clause (b) would be applicable to the
petitioner . The Rule 23.5(1) lays down that no entry shall be made in Part II
except by the order of the Superintendent, who is strictly prohibited from
delegating his authority. The Rule 23.5(2) provides for opening of History
Sheets prior to a person‟s name being put on the Surveillance Reg ister. The
Rule 23.8 provides that History Sheet may be opened under the written
orders of a Police Officer who is not below the rank of the Inspector.
6.2 He further argued that the questions of law which requires the
adjudication by this Court are that i) whether the police a uthority who has
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W.P.(CRL)1326/2022 Page 15
initiated action had reasonable ground or sufficient material for believing that
the petitioner is a desperate character, a habitual offender or a person
habitually addicted to the crime , ii) whether the involvement o f petitioner in
18 cases out of which he has been discharged/compounded/acquitted in 14
cases, 02 cases are pending for the investigation and charge sheet s have not
been filed , and 02 cases are pending for trial, could be construed as a
reasonable ground o r sufficient material for pr eparing the History Sheet by
the respondent no 4 , and according to approval by the respondent no 2 under
the Rules, iii) whether the statutory provisions as envisaged in Rules have
been strictly followed while preparing the Hi story Sheet and gran ting
purported approval thereon, iv) whether the purported opinion of the Police
Authority is based on evidence on record or on reasonable grounds or
formulated its opinion on the basis of conjectures , surmises and predilections,
v) whether the Delhi Police ha s acted in a mala fide manner by deliberately
leaking confidential documents and thereafter , no action was taken by the
Police on the leakage of s trictly confidential documents besides raising other
legal and factual issues.
6.3 The concerned authorities have violated Rule s 23.8 (3) & (4) in
preparation of the purported History Sheet which was required to be prepared
with great care but was prepared in fragrant disregard of the dictum of the
law laid down by the Division Bench of th is Court in Sarjeet Singh V
Commissioner of Police & Others , 2022 (62) DRJ 644 (DB) case as well as
the law laid down by the Supreme Court. The powers under the Rules are
required to be exercised with great care and caution and in conformity with
law as laid down in various judgments passed by this Court as well as by the
Supreme Court.
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W.P.(CRL)1326/2022 Page 16
6.4 He further argued that proposed History Sheet is an example of the
non-application of mind and mala fide exercise of powers. There was no
proximate cause f or opening the purported History Sheet and according
appro val thereon by the respondent no 2 . The Delhi Police never initiated any
proceedings as per Section 110 of the Code. The counsel for the petitioner
argued that the proposed action in opening the His tory Sheet and subsequent
approval by the DCP be quashed and the writ petition be allowed. The
learned counsel for the petitioner relied on Amarendra Kumar Pandey V
Union of India & Others , 2022 Live Law (SC) 600; Deepak Solanki @
Sansar V The State & Othe rs, Writ Petition (Crl,) 14/2005 decided on
03.07.2009; Amrik Singh V Commissioner of Police , Criminal Writ
Petition No. 300/1985 decided on 06.04.1987; Mohd. Anis V The
Commissioner of Police and Others , 1993(25) DRJ (DB); Peter Samuel
Wallace V Inspector General of Police New Delhi & Others , (1981) 20
DLT 333 and Sarjeet Singh V Commissioner of Police & Others , 2022
7. The learned Additional Solicitor General of India assisted by Ms. Nandita
Rao, Additional Standing Counsel for the res pondent s advanced oral
arguments and written arguments have also been submitted on behalf of the
respondent s. It is argued that the petitioner can be reasonably believed to be
the habitual offenders whether he has been convicted or not and the non -
convicti on of the petitioner is not a disqualification for entering his name in
the Surveillance Register. The Rule 23.5 further provides the procedure for
making entries in the Surveillance Reg ister and the record produced from the
office of DCP, South East befor e this Court reflects that there was a complete
procedural compliance in this regard.
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7.1 It is further argued that a s per Rule 23.5(2) before the name of any
person is entered in Part II of the Surveillance Register, a History Sheet
should be opened f or such person and if from the entries in the History Sheet,
the Superintendent of Police is of the opinion that such person should be
subjected to Surveillance, he shall enter his name in P art II of the
Surveillance Register provided that he shall record the definite reasons for
doing so , if the person so proposed to be entered in the Register, has never
been convicted nor placed on security for good behavio ur. The Competent
Officer has recorded the definite reasons regarding the justification of the
petitio ner‟s name being placed in Part II of the Register.
7.2 It is further argued that the Rule 23.8 deals with the preparation of
History Sheets and submitted that the History Sheet qua the petitioner was
prepared in accordance with the letter and spirit of Ru le 23.8. The learned
Additional Solicito r General of India after referring the list of 21 cases
registered against the petitioner during the period from 2016 to 2022 argued
that most of the cases registered against the petitioner are in and around
Jamia Na gar from where the petitioner is an elected representative and mere
compounding of few cases, discharge in few other cases and acquittal in a
couple of other cases can not dilute factor s required in the assessment of the
element of habitual offender.
7.3 There is no violation of Rules 23.8(4) or any provisions of the Code and
every decision was taken on careful analysis of the cogent material which
comprised of the complaints made against the petitioner and lodging of
several FIRs etc. It is argued that the present petition be dismissed . The
learned Additional Solicitor General of India for the respondents also relied
upon case law as referred by the learned counsel for the petitioner
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8. It is reflecting from the combined reading of the petition filed by th e
petitioner and the Status Report submitted on behalf of the respondent s that
the petitioner is Member of Legislative Assembly of Delhi from Okhla
Constituency and is enjoying second term as Member of the Legislative
Assembly (MLA). The petitioner was arr ested on 12.05.2022 in pursuance of
FIR bearing no.246/2022 registered under sections
147/1 48/149/186/353/332/153 IPC at P.S. Kalkaji and was produced before
the concerned Metropolitan Magistrate on 13.05.2022. The petitioner on
13.05.2022 came to know abo ut submissions of dossier on 28.03.2022 by the
respondent no 4 to the respondent no 3 who has approved the proposal on
29.03.2022 and subsequent according of approval by the respondent no 4 on
30.03.2022 for opening History Sheet of the petitioner and to p lace his name
as Bad Character (BC) in R „Register -X, P art- II, Bundle „A‟ for keeping
close surveillance on the activities of the petitioner. The petitioner was stated
to be involved in 18 cases out of which the petitioner was discharged /
acquitted /offence s were compounded etc. in 14 cases and 18 cases stated to
be related to intimidation, threatening, hu rt, riots , causing hindrance in
discharge of the duties of the public servants and causing enmities between
two groups/community . As per the Status Report , the petitioner was found to
be involved in 22 criminal cases out of which 3 cas es pertaining to Police
Station, Usmanpur, Anti Corruption Bureau, Delhi and Parliament Street are
under investigation and 04 cases registered at P.S. Saheen Bagh, Kalindi
Kunj, Civil Line and Jamia Nagar were pend ing trial before the concerned
courts.
9. The main allegation of the petitioner and as argued by the learned counsel
for the petitioner is that the name of the petitioner was entered in Register -X,
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Part- II, Bundle „ A‟ without follow ing due process of law and the R ules and
in mechanical manner and without recording definite reasons and application
of mind in contravention of the Rule 23 of the Rules and there was no
proximate cause or immediate ostensible, justifiable reasons to prepare the
dossier and proposal of the petitioner on 28.03.2022 and consequent a pproval
accorded by the respondent no 2 on 30.03.2022 was without recording
special reasons and application of mind. As per the respondent s and as argued
by the learned Additional Solicitor General , the respondent no 4 through the
respondent no 3 sent a proposal to the respondent no 2 on 28.03.2022 for
opening History Sheet of the petitioner under the Rules and on the basis of
subjective satisfaction and after givin g proper reasons, the respondent no 2
has approved the opening of the History Sheet qua the peti tioner and also the
entry of his name in Register -X, P art- II, Bundle „A‟ after following due
process of law.
10. It is necessary to refer Chapter XXIII of the Rules which are applicable to
Delhi to understand and appreciate the real controversy between the
petitioner and the respondent s. Chapter XX111 of the Rules deals with
prevention of offences. The Rule 23.4 deals with Surveillance Register
No. X. The Rule 23.5 deals with entries in and cancellation from surveillance
register. The Rule 23.8 deals with preparation of History Sheets. The relevant
Rules read as under: -
23.4. Surveillance Register No. X. - (1) In every police station, other
than those of t he railway police, a Surveillance Register shall be
maintained in Form 23.4(1). (2) In part I of such register shall be
entered the names of persons commonly resident within or
commonly frequenting the local jurisdiction of the police station
concerned, wh o belong to one or more of the following classes: -
(a) All persons who have been proclaimed under section 87, Code
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of Criminal Procedure.
(b) All released convicts in regard to whom an order under section
565, Criminal Procedure Code, has been made.
(c) All convicts the execution of whose sentence is suspended in the
whole, or any part of whose punishment has been remitted
conditionally under section 401, Criminal Procedure Code.
(d) All persons restricted under Rules of Government made under
section 16 of the Restriction of Habitual Offenders (Punjab) Act,
(3) In Part II of such register may be entered at the discretion of the
Superintendent –
(a) persons who have been convicted twice, or more than twice, of
offences mentioned in rule 27.29;
(b) persons who are reasonably believed to be habitual offenders
or receivers of stole property whether they have been convicted or
not;
(c) persons under security under sections 109 or 110, Code of
Criminal Procedure;
(d) convicts released before the expi ration of their sentences under
the Prisons Act and Remission Rules without the imposition of
any conditions
Note. - This rule must be strictly construed, and entries must be
confined to the names of persons falling in the four classes named
therein.
23.5. Entries in and cancellations from surveillance register. - (1) The
surveillance register shall be written up by the officer in charge of the
police station personally or by an assistant sub -inspector in a clear and
neat script. No entry shall be made in Part II except by the orders of the
Superintendent, who is strictly prohibited from delegating this
authority. No entry shall be made in part I except by the order of
gazetted officer. Entries shall be made either under the personal
direction of, or on re ceipt of a written order from, an officer authorized
by this rule to make them. In the latter case, original orders shall be
attached to the register until the entry has been attested and dated by a
gazetted officer. (2) Ordinarily, before the name of any person is
entered in Part II of the surveillance register, a history sheet shall be
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opened for such person. If, from the entries in the history sheet, the
Superintendent of opinion that such person should be subjected to
surveillance he shall enter his nam e in Part II of the surveillance
register; provided that the names of persons who have never been
convicted or placed on security for good behaviour shall not be entered
until the Superintendent has recorded definite reasons for doing so.
The record of su ch reasons shall be treated as confidential and the
person concerned shall not be entitled to a copy thereof.
23.8 P reparation of history sheets. - The initial preparation of a history
sheet requires great care, and should invariably be done by the office r
in charge of the police station himself or by a thoroughly experienced
assistant sub -inspector under specific orders.
(1) The description of the criminal should be such as will enable the
person reading it to form for himself a picture of the individual
described, special attention being given to peculiarities of
appearance, gait, speech, etc., by means of which the man may be
distinguished.
(2) The space for „„relations and connections‟‟ should be filled in
with a view to affording clues to those perso ns with whom the
criminal is likely to harbour when wanted by the police, including
relations or friends loving at distances from his home, and his
associates in crime, abettors and receivers. The particular nature of
each person‟s connection should be not ed against each, and, when
persons shown as connections themselves have history sheets, a
cross reference with those sheets should be given.
(3) Under property, and mode of earning livelihood, such
particulars should be entered as will facilitate a judgme nt as to
whether the criminal is at any time living beyond his means;
whether he is capable of furnishing a personal recognisance of any
value; whether he is an owner of property, a tenant or a wage
earner, and so on.
(4) The „„description of crime to whi ch addicted‟‟ should be in some
detail, showing not merely the class of crime, but the particular type
of that crime, methods followed, localities chiefly frequented,
weapons or instruments, used etc.
When these particulars have been carefully and concis ely entered,
the initial entry on the reverse side of the form should be made in
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the form of a summary of the individual‟s criminal career up to the
date of his history sheet being prepared, and should include the
particular reasons and authority for its b eing prepared. Copies of
history sheets prepared and published by the Criminal Investigation
Department and published in the Criminal Intelligence Gazette
shall be filed with the history sheets of the persons concerned in
their home police stations. The po lice station history sheets in all
such cases will be endorsed wit the letters C.I.D. and the criminal‟s
provincial numbers in red ink. The activities of all such criminals
subsequent to the publication of their provincial history sheets must
be communicat ed promptly to the Criminal Investigation
Department though the District Central Investigating Agency.
Duplicate of the sheets of criminal known or suspected to operate on
the railway shall be supplied to the nearest railway police station
and the original s of such sheets shall be endorsed with the letter „R‟
in red ink. The District Police shall also supply the Railway Police
Station with copies of all subsequent entries made in such History
Sheets, so that the Railway Police copies may be kept strictly up to
date.
11. The combined reading of the above Rules reflects that the following facts
are required to be considered before entering name of a person in „Register -
X, Part- II, Bundle „A‟ as provided under Rule 23.4: -
(i) In every Police Station other th an Railway Police , a
Surveillance Register shall be maintained in Form 23.4 (1 ).
(ii) The name of the persons in Part -II of Surveillance Register
may be entered at the discre tion of the Superintendent (DCP in
case of Delhi ) who are reasonably believed to b e habitual
offender s.
(iii) The Surveillance Register shall be written up by the Officer
In-charge of the Police Station personally or by an Assistant Sub
Inspector in a clear and neat script.
(iv) The entry in Part -II can only be made by the orders of
Superintendent (DCP in case of Delhi) who is strictly prohibited
from delegating his authority.
(v) Ordinarily a History Sheet is required to be open ed in respect
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of the person before his name is entered in Part -II of the
Surveillance Register.
(vi) The name s of persons who have never been convicted or
placed on security for good behaviour shall not be entered until
the Superintendent has recorded definite reasons for doing so.
The record of such reasons shall be treated as confidential and the
person concern ed shall not be entitled to a copy thereof.
(vi) The History Sheet initially required to be prepared with great
care and s hould invariably be done by the Officer In -charge ,
Police Station himself or by a through experienced Assistant Sub
Inspector under sp ecific orders.
12. The Rules have been enacted to prevent commission of offence but these
Rules must be exercised with utmost care and caution as these Rules have
impact o n curtailing liberty of effected person. These Rules cannot be
invoked on fancy and surmises of concerned police officer. The Supreme
Court in Dhanji Ram Sharma V Superintendent of Police, North District,
Delhi Police and others , AIR1966SC1766 observed that the provisions
under R ules have been enacted to prevent commission of off ences and collect
intelligence a ffecting the public peace. For the efficient discharge of their
duties, the police officers have been empowered by the Punjab Police Rules
to open the history sheets of the suspects. The powers have to be exercised
with caution a nd in strict conformity to the R ules and that a police officer
must satisfy that the condition precedent has been satisfied. The Supreme
Court in Malak Singh V State of Punjab, AIR 1981 SC 760 observed that
the principle that a person must be given an opportun ity of being heard will
not be applicable in case of history sheeters and surveillance register. The
enquiry was held to be confidential and the said principle of natural justice is
clearly e xcluded. The observance of the principles of natural justice may
defeat the very object of the rule providing for surveillance. It was reiterated
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that these provisions relate to maintenance of history sheets and surveillance
register for purposes of prevention of crimes. It is purely an administrative
and non -judicial a ct.
12.1 The Supreme Court in Malak Singh also held that the police does not
have the license to enter the name of whosoever they like in the surveillance
register and if names of the persons are entered in the register in violation of
Rule 23.4 of the Pu njab Police Rules indeed that would be mala fide. In other
words, the High Court would be well within its powers to quash such an
order. It was observed as under: -
9. But all this does not mean that the police have a license to enter
the names of whoever t hey like (dislike?) in the surveillance
register; nor can the surveillance be such as to squeeze the
fundamental freedoms guaranteed to all citizens or to obstruct the
free exercise and enjoyment of those freedoms; nor can the
surveillance so intrude as to offend the dignity of the individual.
Surveillance of persons who do not fall within the categories
mentioned in Rule 23.4 or for reasons unconnected with the
prevention of crime, or excessive surveillance falling beyond the
limits prescribed by the rules , will entitle a citizen to the court's
protection which the court will not hesitate to give. The very rules
which prescribe the conditions for making entries in the
surveillance register and the mode of surveillance appear to
recognise the caution and car e with which the police officers are
required to proceed. The note following R. 23.4 is instructive. It
enjoins a duty upon the police officer to construe the rule strictly
and confine the entries in the surveillance register to the class of
persons mentio ned in the rule. Similarly Rule 23.7 demands that
there should be no illegal interference in the guise of surveillance.
Surveillance, therefore, has to be unobtrusive and within bounds.
12.2 The Division Bench of this Court in Sarjeet Singh V Commissioner of
Police & others, 2002(62) DRJ 644 DB and also referred by the counsel for
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W.P.(CRL)1326/2022 Page 25
the petitioner also referred above referred decisions of the Supreme Court.
13. The History Sheet file pertaining to the petitioner bearing HS N o.89A
was produced from the Office of the respondent no 2 was carefully perused.
The perusal of History Sheet file bearing HS N o.89A reflects that 22 cases
were got registered against the petitioner vide different FIRs and out of which
18 cases were got registered against the petitioner be fore preparation of the
dossier and proposal by the respondent no . 4 on 28.03.2022. The details of
these cases as submitted by the respondents are reproduced as under: -
& Date Section of law & Police
Station Present Status of Case
(Decided/ PI/PT (In case
of P.T., Name of court &
Next Date of Hearing be
mentioned/updated)
09.01.95 U/s147/148/149/323/324/34 IPC
PS: Sri Niwas Puri Acquitted on 22.03.06 by
Ravinder Bedi, MM,
Patiala House Court, ND
18.10.08 U/s 323/341/427/ 34 IPC
PS: Jamia Nagar
D.O.A: - 18.10.2008 Discharged on 30.06.10
by Sh. Naveen Arora, MM
Patiala House Court, New
Delhi.
27.10.08 U/s 3 West Bengal Act
P.S. Jamia Nagar
D.O.A.: - 21.12.08 Court observed that
merely installing banner at
electric pole does not
cover in the definition of
defacement. Hence,
Discharged on 12.02.13
by Smt. Somya Chauhan,
MM, Patiala House Court,
4. 380/10 U/s 353/363/186/506/34 IPC &
23/26 J.J. Act, Discharged on 03.05 .18
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PS: Jamia Nagar
D.O.A.: - 05.01.11 Vishal, Patiala House
Court, ND
Grounds for discharged:
Cognizance, declined for
offence u/s 186 IPC in the
absence of complaint u/s
The children were
employee of the accused
hence 363 IPC not made
out.
Section 186/35 3/506 IPC
time barred
U/s 308/195A/509/506/34 IPC
PS: Jamia Nagar
D.O.A.: - 24.07.16 Discharged on 16.01.19
Bhardwaj, New Delhi
Court, ND
Grounds for discharged :
Contradictory statements
of the complaint in the FIR
and statement u/s 164
Cr.P.C. Don‟t even make
it a case of suspicion for
framing the charge the
accused.
28.07.2016 U/s 506 IPC
Case is compounded as the
matter is settled between
the parties vide order
dated 23.01.2019
04.18.16 U/s 186/353/153 IPC
PS: Jamia Nagar
Charge -sheet (Without arrest) Application of
condonation of delay was
not allowed by the Court.
Cognizance by ACMM
Shri Same r Vishal Court
Rouse Ave nue, New Delhi
8. 879/16 U/s 307/323/341/506/34 IPC &
27 Arms Act, 1959 Charge Sheet has been
filed against Wazid Khan
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25.08.2016
which is pending at Saket
Court. Charges not framed
yet.
Case is pending trial.
10.09.16 U/s 354/509/506/498A & 120B
PS: Jamia Nagar
D.O.A.: - 21.09.16 FIR quashed by Delhi
High Cou rt
On 25.09.2019 on
settlement between the
parties
25.10.16 U/s 325/341/506/34 IPC
PS: Jamia Nagar
(Without arrest) Acquitted by the Court of
Sh. Samar Vishal ACMM -
II, Patiala House Court on
23.03.2019
Grounds
Complainant turned partly
hostile and public
witnesses turned
completely hostile during
trial.
05.17.19 U/s 323/342/354/354A(1)/509/34
PS: Civil Line
(Without arrerst) Contradiction in the
complaint and statement
u/s-164 Cr.P.C. of the
complainant.
Contradiction in the
complaint and statement
u/s 161 Cr.P.C. of public
witness.
Court found no grave
suspicion. Hence,
Discharged on 19.01.2021
by the Hon‟ble Court of
CMM Rouse Avenue,
New Delhi
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19.04.17 U/s323/341/506/379/356/34 IPC
PS: Jamia Nagar
(Witho ut arrest) Case is pending trial
27.01.18 U/s 141/142/147/323/341/506/34
PS: Jamia Nagar (Without
arrest) Discharge/Compounded
by the Court of Sh. Samar
Vishal, ACMM -II, Patiala
House Court on 17.01.19
Grounds of Acquittal :
Section
not made out and
mere threat does not
constitute offence
u/s 506 IPC
Section 323/341
IPC made out.
Compounded,
Hence acquitted.
(Court Order
attached)
20.02.18 U/s186/332/353/120B/504/
PS: Civil Line
(D.O.A 21.0 2.2018) Pending Trial
Conditional Bail
by Delhi High
Court vide order
Dt. 12.03.2018
7 (c). the above
noted FIR being the
third FIR against the
petitioner for assault
on a public servant,
in case the
petitioner indulges
in any such illegal
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act in future, the
bail granted to the
petitioner would be
liable to be
cancelled.
11 out of 13 accused
persons have been
discharged. Court
observed that the
case is made out
against the
petitioner and
Prakash Jarwal vide
order dated
11.08.2021.
Complainant had
moved an
application for
revision of order of
discharge of co -
accused persons.
10.08.18 U/s 323/341/504/506 IPC,
(Without arrest) Compounded DT
10.09.2020 by ACMM Sh.
Vishal Pahuja, Rouse
Avenue Court
06.11.18 U/s 308/32 3/341/506/34 IPC
PS: New Usmanpur New Delhi
(begin investigated by STAR -2
Crime Br . Shakarpur) Pending Investigation
17. 88/19 U/s 323/341/50/6/34 IPC Settlement between the
parties and he nce
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12.05.19 PS: Jamia Nagar
Bound down U/s 41A
Cr.P.C.: -19.05.2019 Compounded on DT
22.10.2020 by ACMM Sh.
Vishal Pahuja, Rouse
Avenue Court
22.12.19 U/s155/295A/298/505(1)B/120B IPC
& 16 IT Act, PS. Kotwali
(Ghaziabad UP) Final Report prepared
on 09.02.2022. Pending
with CO, Ghaziabad UP
19. 05/2020 U/s 7 Prevention of Corruption
PS Anti -Corruption Bureau
Delhi Pending Investigation
06.04.2021 U/s 153A/506 IPC
PS: Parliament Street Pending Investigation
09.05.2022 U/s 186/353/34 IPC
PS: Shaheen Bagh Pendin g Investigation
12.05.22 U/s 147/146/149/186/353/332/153
PS: Kalindi Kunj Pending Investigation
The petitioner
arrested on
12.05.2022. Granted
bail by Court on
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13.1 It is further reflected that i n the proposal dated 28.03.20 22 the name of
the petitioner and his parenta ge, native village, number of cases are
mentioned as per requirement of Form N o. 23.4(1 ) beside reference of his
family history and his involvement in land grabbing and illegal constructions.
It is also mentione d that most of the cases out of the 18 cases are related to
threatening, hu rt, riots, causing hindrance in of duties of public servants etc.
and he was found to be the habitual criminal of the area. It was recommended
for approval by the respondent no 4 after considering re quirement of
surveillance of activities of the petitioner that a History Sheet may be opened
and his name be entered in „Register -X, Part- II, Bundle „A‟ . The respondent
no 3 vide proceedings 29.03.2022 s crutinised the crimina l record and career
history of the petitioner who is found to be involved in 18 cases including
attempt to murder, riots, hu rting religious sentiments, causing hurt, eve
teasing, threat, obstructing government servants etc. The respondent no 3 was
convinced that the p etitioner needs c ontinuance surveillance by the police
and recommended according of approval for opening of the History Sheet in
respect of the petitioner in Bundle „A‟ . The respondent no 2 after perusing
the record and the reports given by the respondent no 4 and the respondent no
3 was convinced that the petitioner is a habitual criminal and his activities
must be kept under surveillance and thereafter he accorded approval for
entering name of the petitioner in „Register -X, Part- II and History Sheet be
placed in Bundle „A‟.
14. The learned counsel for the petitioner primarily argued that the
respondent no 2 has accorded the approval on 30.03.2022 without giving
definite and justifiable reasons and without application of mind . The learned
Additional Solic itor General for the respondents argued to the contrary. The
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administrative authority which is vested with power to determine questions
affecting the rights of individuals must exercise power in conformity with
the rules of natural Justice requirement of p assing reasoned orders by the
administrative authorities is one of the important aspects of natural justice.
Due to expanding horizon of judicial review, requirement to give reasons
has become an indispensable part of judicial review. The Privy Council in
Minister of Natural Revenue V Wright‟s Vanadian Ropes Ltd., (1947)
AC 109 held that a Minister who had failed to give reasons for a special tax
assessment had not shown that it was correct and that the tax payer's appeal
must be allowed. In R V Civil Servic e Appeal Board exp Cunningham ,
(1991) 4 A AIIER 310 an award of abnormally low compensation to an
unfairly dismissed prison officer by the Civil Service Appeal Board, which
made it a rule not to give reasons was quashed by the court of Appeal by
holding th at natural justice demanded the giving of reasons both in deciding
whether dismissal was unfair and in assessing compensation . In England, in
a series of cases it has been held that statutory tribunals must give
satisfactory reasons in order that the losin g party may know whether he
should exercise his right of appeal on a point of law. (See also Nortan Tool
Co. Ltd. V Tewson , [1973] WLR 234.
14.1 It is suitably established i n India that an adjudicatory authority is
required to give reasons for its decision . The Supreme Court i n Siemens
Engineer and Manufacturing Co. V Union of India, AIR 1976 SC 1785
reiterated the principle with an em phasis that the rule requiring reasons to be
given in support of an order is a basic principle of natural justice, which
must inform the quasi -judicial process. It should be observed in its proper
spirit and "mere pretence of compliance with it would not satisfy the
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requirement of law". It was observed i n Maneka Gandhi V Union of India,
AIR 1990 SC 1984 that giving of reasons i s a healthy check against abuse or
misuse of power. The requirement of duty to give reasons was further
crystallized in S.N. Mukherjee V Union of India , AIR 1990 SC 1984 and
reasons due to which a reasoned decision must be passed were discussed . It
was obs erved that reasoned decision: (i) guarantee consideration by the
authority; (ii) introduce clarity in decisions; and (iii ) minimize chances of
arbitrariness in decision -making thereby ensuring fairness in the process . It
was observed as under:
In our opin ion, therefore, the requirement that reason must
be recorded must be recorded should govern the decisions of
govern the an administrative authority exercising quasi -
judicial functions irrespective of fact whether the decision is
subject to appeal, revision or judicial review. It may,
however, be added that it is not required that the reasons
should be as elaborate as in the decision of a court of law. The
extent and nature of the reasons would depend on particular
facts and circumstances. What is necessary is that the reasons
are clean and explicit so as to indicate that the authority has
given due consideration to the points in controversy.
14.2 The Supreme Court in Rani Lakshmi Bai Kshetriya Gramin Bank V
Jagdish Sharan Varshney & others, (2009)4SCC496 held that the purpose
of disclosure of reasons is that people should have confidence in judicial and
quasi -judicial authorities and minimize chances of arbitrariness. It was held
as under: -
The purpose of disclosure of reasons, as held by a Constitution
Benc h of this Court in the case of S.N.Mukherjee vs. Union of
India reported in (1990) 4 SCC 594, is that people must have
confidence in the judicial or quasi -judicial authorities. Unless
reasons are disclos ed, how can a person know whether the
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authority has applied its mind or not? Also, giving of reasons
minimizes chances of arbitrariness. Hence, it is an essential
requirement of the rule of law that some reasons, at least in brief,
must be disclosed in a j udicial or quasi -judicial order, even if it is
an order of affirmation.
14.3 The Supreme Court in The Supreme Court in the case of Namit
Sharma V Union of India , (2013) (1) SCC 745 regarding duty to gi ve
reasons held as under: -
It is not only appropriate but is a solemn duty of every
adjudicatory body, including the tribunals, to state the reasons in
support of its decisions. Reasoning is the soul of a judgment and
embodies one of the three pillars on w hich the very foundation of
natural justice jurisprudence rests. It is informative to the
claimant of the basis for rejection of his claim, as well as provides
the grounds for challenging the order before the higher
authority/constitutional court. The reas ons, therefore, enable the
authorities, before whom an order is challenged, to test the
veracity and correctness of the impugned order. In the present
times, since the fine line of distinction between the functioning of
the administrative and quasi - judici al bodies is gradually
becoming faint, even the administrative bodies are required to
pass reasoned orders. In this regard, reference can be made to the
judgments of this Court in the cases of Siemens En gineering &
Manufacturing Co. of India Ltd. v. Union of India &Anr . [(1976)
2 SCC 981]; and Assistant Commissioner, Commercial Tax
Department Works Contract and Leasing, Kota v. Shukla &
Brothers [(2010) 4 SCC 785].
14.4 Any authority when conferred with a discretionary power must exercise
that power after applying its mind to the facts and circumstances of the case .
The authority should not act mechanically in exercise of discretion. The
Supreme Court in East Coast Railway V Mahadev Appa Rao, (2010) 7
SCC 2794 observed that every order passed by a public authority must
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disclose due and proper application of mind by the person making the order.
15. The petitioner is not convicted in any criminal case registered against
him vide different FIR s as such i t was mandatory for the respondent no 2 to
give adequate reasons before according approval on 30.03.2022. The
Division Bench of this Court in Sarjeet Singh observed as under: -
Consequently it is not necessary therefore for the court to
consider whether the pe rson as such has been convicted or not but
there necessarily has to be a proper satisfaction of the concerned
officer before the name of a person is entered in the history sheet.
This is for the reason that under Rule 23.5 (2) if from the entries
in the hi story the Superintendent of the Police is of the opinion
that such person should be subjected to surveillance he shall enter
his name in Part II of the register provided that name of the
person who has never been convicted or placed on security for
goods b ehaviors shall not be entered until the Superintendent has
recorded the definite reasons for doing so. In this process before
making a departure in cases where there is no conviction recorded
special reasons has to be recorded.
15.1 In Jarnail Singh V Sta te of Haryana and another, 1997 (2) All India
Criminal Law Reporter 834 name of the person was entered in the
surveillance register but he was already acquitted from charge of criminal
conspiracy and was not a habitual offender. There was no warrant for
showing along wi th him history sheeters and as such order was quashed.
In Kanwarjit Singh V State of Haryana and others, 1997 (3) All India
Criminal Reporter 494 the Superintendent of Police had not recorded any
reason nor the petitioner in that case was sho wn to be a previous convict for
offences contemplated under Rule 23.9 of the Rules. The Punjab and
Haryana High Court had set aside the said order by holding that there was
no reason recorded by the Superintendent of Police nor was the petitioner
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shown to be convicted twice for offences contemplated under Rule 27.29 of
the Rules as such there was no justification in the said order.
16. The perusal of the History Sheet file pertaining to the petitioner bearing
no.89A reflects that initially the respondent no . 4 has applied his mind before
making proposal and lastly the respondent no . 2 after con sidering the report
of the respondent no 4 and the respondent no . 3 has accorded the approval
after due application of mind. The perusal of History Sheet file N o. 89A
further reflects that the concerned authorities have given definite, appropriate
and adequate reasons before processing and according approval for entering
the name of the petitioner in „Register -X, Part- II, Bundle „A‟ . It cannot be
said that the approval which was given by the respondent no 4 on 30.03.2022
was without application of mind and any reasons . The approval was accorded
by the respondent no2 on recommendation of the respondent no 4 and the
respondent no 3 after due compliance of the Rules. There is no force in the
argument advanced by the learned counsel for the petitioner that the approval
was accorded by the respondent no 2 without giving definite, justifiable and
adequate reasons .
17. The learned counsel for the petitioner argued that the pet itioner was
never convicted in any criminal case and 14 cases out of 18 cases stated to be
registered against the petitioner were resulted in
acquittal/compounding/discharge/quashing and as such there was no occasion
for the respondent no 2 to accord appro val on 30.03.2022. He further argued
that the petitioner is not a habitual offender and there was no reason to
believe that the petitioner is a habitual offender and referred Sarjeet Singh .
The learned Additional Solicitor General for the respondents argue d that
cases which were registered against the petitioner were got registered in years
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from 2016 to 2022 and pertains to area of Jamia Nagar from where the
petitioner is an elected representative. He argued that the petitioner is
habitual offender.
17.1 A habitual criminal offender can be refer to a person who has been
previously convicted of one or more crimes in the past and is currently
facing new charges. A c oordinate Bench of this court in Amrik Singh V
Commissioner of Police, 1987 (13) DRJ 206 in respect of expression
habitual offender observed as under: -
15. A habitual offender or a person habitually addicted to crime
is one who is a criminal by habit or b y disposition formed by
repetition of crimes. Reasonable belief of the Police Officer that
the suspect is a habitual offender or is a person habitually
addicted to crime is sufficient to justify action under these rules.
However, mere belief is not suffici ent. The belief must be
reasonable and based on reasonable grounds ( Dhanji Ram
Sharma v. Superintendent of Police, North District, Delhi Police
and ors . , 1766).
16. Applying the said principles to the facts of the present case it
can safely be said that the respondents acted in haste and slipped
badly in bringing the name of the petitioner on bundle 'A' and in
the Surveillance Register. Along with the counter affidavit, the
respondent has filed the list of 15 cases in which the petitioner was
involved. These cases relate to the period from 2 -4-1962 to 19 -8-
1985. In the first 12 cases, the petitioner has either been
discharged or acquitted after trial. Except in one case of 1977
where on his confession he was directed to pay a fine of Rs. 100
under Section 114 Ir Act, the remaining four cases are pending
trial. At this stage, it will be relevant to note that in between the
first two cases there is a gap of more than 5 years and in
succeeding three cases, t here is another gap of 3 years preceding
every case. Till March, 1975, he faced charges in 8 cases which
resulted in his discharge in six cases and acquittal in the
remaining two.
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17.2 A Division Bench of this court in Mohd. Anis V Commissioner of
Police a nd others, 1993(1) Chandigarh Criminal Case 545 which is also
referred in Sarjeet Singh concluded that order of opening of a History Sheet
and surveillance is precautionary measure and has to be based on the past
conduct in the light of the surrounding cir cumstances. The past conduct
must be of such a nature that inference can be drawn that person concerned
is habitually addicted to crime. The expression 'habitual' was held to be
meaning repeatedly or persistently creating any of such ingredients were not
satisfied. The order was q uashed by observing as under: -
We fail to see how one solitary case registered almost six years
before the passing of the impugned order could possible persuade
any reasonable person to reach the satisfaction that the petitioner
was habitually addicted to crime. There being no material to show
that the petitioner was persistently engaged in a series of criminal
acts and the cases in which he was involved being too remote in
matter of time and having ended in acquittal or discharge, no
inference of h abit can be justifiably raised.
17.3 Another Division Bench of this Court in Sarjeet Singh after drawing
conclusions observed that it is not necessary that person concerned must be
convicted of certain offences but in that event reason mus t be recorded
specifically to bring the name of such a person in the registers .
17.4 The learned counsel for the petitioner also referred Deepak Solanki @
Sansar V The State & Others , Writ Petition (Crl.) 14/2005 decided on
03.07.2009 by the coordinate Bench of this Court wherein it was held as
under :-
It is easy to label a person a "habitual offender" or a person
"addicted" to crime but when such a decision is challenged in
court, the authorities will have to satisfy the court that such
decision was based on relevant materials and that any such
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relevant material was not excluded from consideration when such
a decision was taken. The following observations of the Supreme
Court in Gopalan Chari v. State of Kerala (1981) 1 SCR 1271
though in the context of Section 110 CrPC are relevant in this
context:
6....... We have not the slightest doubt that expressions like 'by
habit', 'habitual', 'desperate', 'dang erous', 'hazardous' cannot
be flung in the face of a man with laxity of semantics. The Court
must insist on specificity of facts and be satisfied that one
swallow does not make a summer and a consistent course of
conduct convincing enough to draw the rigor ous inference that
by confirmed habit, which is second nature, the counter -
petitioner is sure to commit the offences mentioned if he is not
kept captive. Preventive sections privative of freedom, if
incautiously proved by indolent judicial processes, may do
deeper injury. They will have the effect of detention of one who
has not been held guilty of a crime and carry with it the judicial
imprimatur, to boot. To call a man dangerous is itself
dangerous; to call a man desperate is to affix a desperate
adjecti ve to stigmatise a person as hazardous to the community
is itself a judicial hazard unless compulsive testimony carrying
credence is abundantly available. A sociologist may pardonably
take the view that it is the poor man, the man without political
clout t he person without economic stamina, who in practice gets
caught in the coils of Section 110 of the Code, although, we as
court, cannot subscribe to any such proposition on mere
assertion without copious substantiation. Even so, the court
cannot be unmindful of social realities and be careful to require
strict proof when personal liberty may possibly be the casualty.
After all the judicial process must not fail functionally as the
protector of personal li berty.
17.5 It is correct that the petitioner is not a previous convict and in most of
the cases registered against him, the petitioner is
discharged/acquitted/offences are compounded/FIR is quashed. However
perusal of recommendation dated 28.03.2022 propo sed by the respondent no
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4 and dated 29.03.2022 made by the respondent no 3 are duly and
appropriately coupled with adequate and sufficient reasons. Subsequently
the respondent no 2 accorded approval on 30.03.2022 after proper
application of mind. There is no legal and factual force in arguments
advanced by the learned counsel for the petitioner that the petitioner is not a
previous convict and due to this reason, the petitioner cannot be put under
surveillance after entering his name in Register X, Part II , Bundle „A‟.
18. The learned counsel for the petitioner also argued that the petitioner
pleaded that he was arrested on 12.05.2022 by the Police in pursuance of
FIR bearing no.246/2022 registered under section s
147/148/149/186/353/332/153 IPC registered at P.S. Kalkaji and he was to
be produced before the concerned Court of Metropolitan Magistrate on
13.05.2022 and on that day his bail application was fixed for hearing. The
petitioner on 13.05.2022 came to know from social media that the
respondent no.4 o n 28.03.2022 has already subm itted a dossier to the
respondent nos.3 and 4 along with proposal for opening History Sheet qua
the petitioner and to place his name in Register X, Part II, Bundle „A‟ for
keeping close surveillance on his activities. The propo sal on the basis of
dossier dated 28.03.2022 was required to be confidential as per Rule 23.5
but it was circulated and leaked in pre -planned manner on 13.05.2022 before
consideration of his bail application in FIR bearing no. 246/2022 to the print
and soc ial media and the spokesperson from the rival political party also
referred the dossier dated 28.03.2022 on social media. The respondents in
the Status Report have refuted these allegations as levelled by the petitioner.
18.1 The learned counsel for the p etitioner also argued that the reputation of
the petitioner was deserved to preserved by the police and the police has
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pleaded the dossier and proposal deliberately in public domain as the said
facts were not placed before the Court of concerned Metropolit an Magistrate
at the time of consideration of bail application on 13.05.2022 in FI R bearing
no.246/2022. The learned counsel for the petitioner relied upon Peter
Samuel Wallace V Inspector General of Police New Delhi & Others ,
(1981) 20 DLT 333 wherein a c oordinate Bench of this Court observed as
under:
The complaint of the petitioner that the police has leaked out the
information of his being a bad character which has also been
published by the press (vide news -item, Annexure „A‟) which
allegations is unr ebutted, leads me to the conclusion that
continuation of petitioner‟s history sheet is also improper.
18.2 Rule 23.5 deals with entries to be made in surveillance register it
further provides that ordinarily a History Sheet shall be open for such person
before his name is entered in Part II of the Surveillance Register. The
Superintendent of Police is required to record definite reasons once a person
is subject to surveillance on the basis of the entries made in the history sheet
if such person is not convi cted in the past. It further provides that the record
of the reason shall be treated as confidential and concerned person shall not
be entitled to a copy of the reasons. Rule 23.5 mandates confidentiality in
recording of the reasons for subjecting a perso n to surveillance. It may be
true that the dossier and recommendation/proposal dated 28.03.2022 and
subsequent approval accorded by the respondent no.2 may not be placed
before the Court of concerned Metropolitan Magistrate on 23.05.2022 at the
time of the consideration of the bail application of the petitioner in FI R
bearing no.246/2022 and these might be leaked in public domain but there is
no evidence or material on record which can indicate that the dossier and the
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subsequent approval was leaked by the Delhi Police or through Delhi Police.
The arguments advanced by the learned counsel for the petitioner as referred
hereinabove are without factual basis.
19. It was observed by the Division Bench of this Court in Sarjeet Singh
that the principle of judici al review is one of the basic structures of the
Constitution. If the order is violative of the Rules and the Act is without
application of mind or mala fide, the court would not hesitate to set aside
such an order . The Supreme Court in Amarendra Kumar Pand ey V Union
of India & Others , 2022 Live Law (SC) 600 and also referred by the
learned counsel for the petitioner observed as under: -
29. The action based on the subjective opinion or satisfaction, in
our opinion, can judicially be reviewed first to find ou t the
existence of the facts or circumstances on the basis of which the
authority is alleged to have formed the opinion. It is true that
ordinarily the court should not inquire into the correctness or
otherwise of the facts found except in a case where it is alleged
that the facts which have been found existing were not supported
by any evidence at all or that the finding in regard to
circumstances or material is so perverse that no reasonable man
would say that the facts and circumstances exist. The courts will
not readily defer to the conclusiveness of the authority‟s opinion
as to the existence of matter of law or fact upon which the validity
of the exercise of the power is predicated.
30. The doctrine of reasonableness thus may be invoked. Where
there ar e no reasonable grounds for the formation of the
authority‟s opinion, judicial review in such a case is permissible.
[See Director of Public Prosecutions v. Head , (1959) AC 83 (Lord
Denning).
31. When we say that where the circumstances or material or state
of affairs does not at all exist to form an opinion and the action
based on such opinion can be quashed by the courts, we mean that
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in effect there is no evidence whatsoever to form or support the
opinion.
19.1 It is apparent from the record that the respondent no.4 at the time of
making the recommendation for opening of the History Sheet, making entry
of the name of the petitioner in „Register -X, P art- II, Bundle „A‟ and
keeping surveillance on his a ctivities has followed the Rules and have given
sufficient reasons in support of his recommendation. The respondent no.3
also forwarded the recommendation made by the respondent no.4 to the
respondent no.2 for approval after applying his mind and consideri ng the
necessary facts. The respondent no.2 also considered and recorded sufficient
and adequate reasons before according approval for entering the name of the
petitioner in Register X Part II and to place his History Sheet in Bundle „A‟.
The concerned aut horities have followed due procedure of law and have
complied with the mandatory requirements of the Rules in a reasonable
manner . The approval was accorded by the respondent no.2 on the basis of
material provided by the History Sheet . The approval given b y the
respondent no.2 was just, fair and reasonable and was not based on any
personal prejudice or predilections. The opening of the History Sheet qua
the petitioner and subsequent according of approval by the respondent no.2
was not based on conjecture or surmises but was accorded on application of
mind and was not contrary to the strict provisions of the Rule. There was no
mala fide exercise of discretion on the part of the respondent no.2 while
according the approval on 30.03.2022 .
20. The petition filed by the petitioner and the Status Report submitted by
the respondents and the arguments advanced on behalf of the petitioner and
the respondents along with referred case law were considered in right
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prospective. The present petition is devoid of any merit, hence dismissed.
However, the petitioner shall be at liberty to make a representation for
deletion/cancellation of his name from Surveillance Register X in
accordance with Rules and Law which shall be decided by the respondents
in accordance with law with out any delay.
21. The present petition along with pending applications, if any, stands
disposed of.
|
The Delhi High Court on Thursday dismissed a plea by Aam Aadmi Party (AAP) MLA Amanatullah Khan challenging the Delhi Police's decision to list him as 'bad character' after opening the 'history sheet' against him.
However, Justice Sudhir Kumar Jain dismissed the plea after having reserved the judgement on October 7.
In a detailed order, Justice Jain said that it is apparent from the record that the authorities followed the rules and gave sufficient reasons to open history sheet against Khan and entering his name in the surveillance register.
"The opening of the History Sheet qua the petitioner and subsequent according of approval by the respondent no.2 (DCP South East) was not based on conjecture or surmises but was accorded on application of mind and was not contrary to the strict provisions of the Rule. There was no mala fide exercise of discretion on the part of the respondent no.2 while according the approval on 30.03.2022," the court said.
It, therefore, concluded that Khan's petition is devoid of any merit deserved to be dismissed.
"However, the petitioner shall be at liberty to make a representation for deletion/cancellation of his name from Surveillance Register X in accordance with Rules and Law which shall be decided by the respondents in accordance with law without any delay."
Khan, who represents the Okhla constituency of Delhi, approached the High Court seeking quashing of the history sheet on the grounds that it was issued in violation of the Punjab Police Rules. These rules are applicable to Delhi Police as well, the Court was told.
Advocate M Sufian Siddiqui, appearing for Khan, had argued that even though the concerned police officer has to accord reasons whenever a history sheet is opened and a person is listed as 'bad character', but the procedure for the same as provided under the Rules, was not followed.
He added details of the development have to be kept secret but it was leaked to the media.
"On the face of it their conduct is mala fide. They leaked it to the media before it was sent to me. It has been published in all the newspapers. This is in complete violation of my Article 21 rights," it was argued.
However, the counsel appearing for Delhi Police stated that details were not leaked by the Police.
"He is a political person. He may have leaked it himself. We have not leaked anything. He has 16 FIRs against him," the counsel said.
Siddiqui challenged the assertion stating that Khan has been discharged or is on bail in 14 of these FIRs.
Advocates Sufian Siddiqui, Rakesh Bhugra and Alya Veronica appeared for Khan.
ASG Sanjay Jain, ASC Nandita Rao and advocates Nishant Tripathi, Akash Kishore, Harshita Sukhija and Tanya Aggarwal appeared for the respondents.
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ITEM NO.7+29+30 Court 11 (Video Conferencing) SECTION X
Writ Petition(s)(Civil) No(s). 623/2021
Item No. 29
Writ Petition(s)(Civil) No(s). 631/2021
Item No. 30
Writ Petition(s)(Civil) No(s). 632/2021
Date : 11-06-2021 These petitions were called on for hearing today.
For Petitioner(s) Ms. Pallavi Pratap, AOR
Mr. Sanjay R. Hegde, Sr. Adv.
Mr. Chandrashekhar A. Chakalabbi, Adv.
Mr. Awanish Kumar, Adv.
Mr. Shiv Kumar Pandey, adv.
Mr. Anshul Rai, Adv.
Mr. Shikha Bharadwaj, Adv.
Mr. Abhinav Garg, Adv.
M/S. Dharmaprabhas Law Associates, AOR
Mr. Arvind P Datar, Sr. Adv.
Ms. Sonia Mathur, Sr. Adv.
Dr. Charu Mathur, AOR
Mr. Sanjay Kumar Dubey, Adv
Ms. Tanvi Dubey, Adv.
Mr. Puneet Pathak, Adv.
For Respondent(s) Mr. Dushyant Parashar, AOR
UPON hearing the counsel the Court made the following
IN W. P.(Civil) No(s). 623 & 632 of 2021
These Writ Petitions have been filed by doctors with an
MBBS degree, aspiring to appear for the Institute of National
Importance Combined Admission Test (INI CET) for admission to the
Post Graduate courses for the July 2021 session in the units of
AIIMS (All India Institute of Medical Sciences), PGIMER Chandigarh,
JIPMER Puducherry and NIMHANS Bengaluru. The Writ Petitions are
directed against Notice No. 81/2021 dated 27.05.2021 issued by the
AIIMS Examination Centre, rescheduling the INI CET for the July,
2021 session to 16th June, 2021.
It is submitted that the hasty decision taken by AIIMS to
conduct INI CET 2021 on 16th June, 2021 has seriously prejudiced
innumerable aspirants for admission to Post Graduate courses of the
institutions of national importance, who are serving in Covid
hospitals in various parts of the country. Many of them have been
rendering services at Covid Centres located far away from the
examination centres for which they have opted.
The Petitioners contend that conducting the INI CET at
such short notice is arbitrary, unfair on the aspirants for the INI
CET and will cause gross injustice, as the aspirants have got very
short time to prepare. According to the petitioners the concerned
doctors had been assured that they would be given sufficient time,
atleast a month, to prepare for the admission test.
Mr. Datar, learned senior counsel appearing on behalf of
the Petitioners pointed out that the INI CET is being conducted to
fill up 850 MD and MS seats in 6 units of AIIMS, PGIMER Chandigarh,
JIPMER Puducherry and NIMHANS Bengalure. About 80,000 doctors with
the MBBS degree are expected to take the INI CET. Post Graduate
courses of medical colleges, other than those mentioned above are
through the NEET-PG, which according to the Petitioners has been
postponed beyond 31st August, 2021.
Mr. Datar argued that different examination have been
postponed on account of the pandemic including the Civil Services
Examination. It is not clear whether some examinations including
Board examinations for this year, will at all be held.
The attention of the court has also been drawn to news
reports of extensions of lock down, in many States. It is reported
that in Odisha lock down has been extended till 16th June, 2021. In
Maharashtra and Andhra Pradesh and also in Kolkata, the lock down
has been extended till 15th June, 2021. It would be extremely
difficult, if not virtually impossible for many candidates for the
INI CET to reach their examination centres from their places of
duty. Many of the doctors are exposed to and are running the risk
of contracting Covid 19 and they may have to isolate and/or
quarantine themselves. Even otherwise holding the INICET on 16th
June, 2021 will result in spread of the virus and increase in Covid
19 cases.
Having regard to the circumstances, pleaded, fixing of
the INI CET on 16.06.2021 is arbitrary and discriminatory, more so
since other important examinations including Joint Entrance
Examinations, Board Examinations etc. have been postponed.
The impugned notice is, therefore, set aside.
The INI CET is directed to be postponed by at least a month from
16th June, 2021.
The AIIMS shall fix a convenient date for the INI CET
at least one month after 16th June, 2021.
With the aforesaid observations, the Writ Petitions are
disposed of.
Pending application, if any, stands disposed of.
IN W. P.(Civil) No(s). 631 of 2021
Mr. Sanjay R. Hegde, learned senior counsel, on instructions,
submits that the Petitioners shall not press the first prayer i.e.
Prayer No.1.
Issue Notice to the Union of India and to the Medical Council,
returnable by 18th June, 2021.
Dasti service, in addition, is permitted.
Union of India may be served through the office of the
Solicitor General of India.
|
The Supreme Court on Friday ordered All India Institute of Medical Sciences (AIIMS) to postpone the INI CET Examination, 2021 by one month (Poulami Mondal v. All India Institute of Medical Sciences).
The exam which was scheduled to be held on June 16, can be held any time after expiry of a month, the Court clarified.
"The fixing of the INI CET on 16.06.2021 is arbitrary and discriminatory, more so since other important examinations including Joint Entrance Examinations, Board Examinations etc. have been postponed. The impugned notice is, therefore, set aside. The INI CET is directed to be postponed by at least a month from 16th June, 2021. The AIIMS shall fix a convenient date for the INI CET at least one month after 16th June, 2021," the Court ordered
The order was passed by a Bench of Justices Indira Banerjee and MR Shah on a petition filed by twenty-six doctors and the Indian Medical Association (Chattisgarh Chapter).
The INI CET Exam is conducted for admissions to higher studies in the field of medicine/post graduate studies.
The petition by twenty-six doctors, filed through advocate Pallavi Pratap, and the IMA plea by Advocates Tanvi Dubey and Charu Mathur said that holding the examination on June 16 would be in utter disregard to the assurance with respect to postponement of PG Examinations, given by the Prime Minister’s Office (PMO) while postponing the NEET PG Examination, 2021 by four months.
It was also stated in the said communication by PMO that the students will be given at least one month’s time in order to prepare for the said examination.
"In the instant case, only 19 days prior notice is given. Also centres for examination are in different states or far from the aspirants’ place of working which may require travelling and thereby facing travel restrictions," the petition said.
The petitioners also cited how holding the examination in the midst of the pandemic will pile up pressure on graduate doctors and highlighted how board exams were cancelled.
"In the prevailing circumstances due to COVID-19, the conducting of this examination is resulting in building up pressure on the graduate doctors from across India to sit for the examination on 16th June, 2021, when under the present circumstances the Board examinations (Central Board of Secondary Education 10th and 12th Grade) and other professional examinations have been either cancelled or postponed," the petition stated.
Moreover, many doctors are not fully vaccinated and many have not even received the first dose of COVID vaccine. Therefore, holding the examination could endanger their lives, it was contended.
When the matter was taken up as item 7, the Court asked AIIMS why the exam cannot be postponed for a month.
"Situation in Delhi has improved but in other places figures are high. cant this postponed by a month," asked Justice Banerjee.
Advocate Dushyant Parashar, appearing for AIIMS, submitted that if the exam is stayed then there will be an unprecedented crisis.
"Staying the exam will create an unprecedented crisis. 1000 doctors will be recruited by this exam. these petitoners can apply in the next September session exam. If stay is granted there will be no doctors," said Parashar.
"These doctors are on COVID duty. How will they appear for exam," Justice Shah demanded.
The Court then asked AIIMS counsel to take instructions on postponement of exam and kept the case for hearing at 12.30.
When the matter was taken up after 12.30, the Court ordered postponement of exam for a month.
Senior Advocate Arvind Datar appeared for the petitioners (IMA).
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1 of 5 17 & 20-aba-94 & 97-24
Ms. Nandita Saha ..Applicant
Versus
State of Maharashtra ..Respondent
Ms. Raadhika Nanda ..Applicant
Versus
State of Maharashtra ..Respondent
Mr. Abhishek Yende a/w. Surbhi Agrawal a/w. Vishal Dhasade for
Applicants in both ABAs.
Ms. Mahalakshmi Ganapathy, APP for State/Respondent in both
Mr. Pratik Deore i/b. Dinesh Kadam a/w. Amar Thakur for
Intervenor in both ABAs.
1.In both these applications, today a common order is
passed because the Applicants seek protection from arrest in
connection with the same F .I.R.
2.The Applicants are seeking anticipatory bail inGokhale
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2 of 5 17 & 20-aba-94 & 97-24
connection with C.R.No. 434 of 2023, registered at M.I.D.C. Police
Station, Mumbai, under Sections 406, 409 and 420 r/w. 34 of the
Indian Penal Code.
3.Heard Mr. Abhishek Yende, learned counsel for the
applicants, Ms. Mahalakshmi Ganapathy, learned APP for
State/Respondent and Mr. Pratik Deore, learned counsel for the
Intervenor.
4.Mr. Pratik Deore, learned counsel states that, he has
instructions to appear for the first informant. He seeks time to file
an intervention application. At his instance, today I am adjourning
the matter. Since the matter is being adjourned, I have heard the
parties for consideration of ad-interim relief.
5.The F .I.R. is lodged by one Deven Bafna. He was a
Chartered Accountant. He has lodged the F .I.R. on behalf of Shri.
Vivek Oberoi. It is mentioned in the F .I.R. that, Shri. Vivek Oberoi
and Smt. Priyanka Oberoi had formed a firm which was an LLP by
the name Oberoi Organic LLP . It was established on 24.02.2017.
The main business of the firm was production of organic products
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3 of 5 17 & 20-aba-94 & 97-24
and to market it throughout India. However, since there was not
much demand, they decided to diversify into the film business
because they had experience in that field. Shri. Vivek Oberoi got
acquainted with one Sanjay Saha. The F .I.R. mentions that, they
met in a hotel in February 2020 and decided to establish a firm.
Both of them agreed on certain clauses. Accordingly, Shri. Oberoi
invested Rs.27 lakhs. He was to get 33.33% of shares. The
applicant Nandita Saha is mother of Sanjay Saha. Both of them
were to get 33.34% shares and balance 33.33% shares were to be
given to the applicant Raadhika Nanda. Accordingly, a separate
firm by the name Anandita Entertainment LLP was formed. The
F .I.R. goes on to mention various instances where according to the
first informant, Shri. Oberoi was cheated of his money. According
to the F .I.R., the misappropriation was to the tune of
Rs.1,55,72,814/-.
6.Learned counsel for the applicants submitted that the
F .I.R. itself shows that, all the decisions were taken by Shri. Sanjay
Saha. The main allegations against the present applicants are that,
Rs.5 lakhs were invested in the Tata AIG Life Insurance in the
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4 of 5 17 & 20-aba-94 & 97-24
name of applicant Nandita Saha and Rs.10 lakhs were taken by the
applicant Raadhika Nanda by way of her salary. Learned counsel
submitted that the clauses in the agreement make provision for
such payment. The agreement is dated 01.12.2020. The clause
No.21 mentions that all the partners were to have rights, title and
interest in all the assets and properties in proportion of their profit
sharing ratio. The partners could draw remuneration subject to
profit of the LLP and approval of all the partners. The agreement
also provided for welfare of the partners as mentioned in Clause
38(m). Thus, the allegations attributed against the present
applicants are covered under these clauses. In any case, at the
highest, this dispute is between the partners interse and for that
criminal offenec is not made out.
7.Considering these submissions, learned counsel for the
applicants has made out a case for grant of ad-interim relief.
8.Hence, the following order.
i)In the event of their arrest in connection with
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5 of 5 17 & 20-aba-94 & 97-24
C.R.No. 434 of 2023, registered at M.I.D.C.
Police Station, Mumbai, till the next date, the
Applicants be released on bail on their executing
P . R. bonds in the sum of Rs.30,000/- each
(Rupees Thirty Thousand each Only) with one or
two sureties each in the like amount.
ii)This order shall operate till 22/02/2024.
iii)The Applicants shall attend the concerned Police
Station from 29/01/2024 to 31/01/2024
between 1.00p.m. to 4.00p.m. and thereafter as
and when called. The applicants shall cooperate
with the investigation.
iv)Stand over to 22/02/2024.
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The Bombay High Court on January 15 granted interim protection from arrest to two women (applicants/ accused) booked for allegedly defrauding Bollywood actor Vivek Oberoi of ₹1.55 crores [Nandita Saha v. State of Maharashtra and connected matter].
Single-judge Justice SV Kotwal granted protection till February 22 to Nandita Saha and Raadhika Pratap Nanda, partners of Anandita Entertainment LLP, a partnership firm which also includes Oberoi and his wife.
The judge observed that no criminal offence was made out and it seemed to be a dispute between business partners.
“The allegations attributed against the present applicants are covered under the clauses of the partnership agreement of December 1, 2020. In any case, at the highest, this dispute is between the partners inter se and for that criminal offence is not made out,” the Court held.
The case arose from a complaint by Oberoi’s company, Oberoi Mega Entertainment LLP through its authorised representative Chartered Accountant Deven Bafna.
As per the first information report (FIR), Vivek Oberoi had gotten acquainted with one Sanjay Saha in February 2020 and decided to establish a firm. Both of them agreed on certain clauses. Oberoi invested ₹27 lakh and was to get 33.33% of shares.
The applicant-accused Nandita Saha is mother of Sanjay Saha. Both of them were to get 33.34% shares and balance 33.33% shares were to be given to the applicant Raadhika Nanda.
A separate firm by the name Anandita Entertainment LLP was then formed. However, as per the FIR, Oberoi was cheated of his money to the tune of ₹1.55 crore.
The main allegation against the two accused women was that ₹5 lakh was invested in Tata AIG Life Insurance in Nandita Saha’s name and ₹10 lakh was taken by Raadhika for her salary.
While Sanjay Saha is presently in judicial custody the two accused Nandita and Raadhika approached the sessions court for anticipatory bail.
After sessions court rejected the application, the two women approached High Court.
The applicants contended that the FIR clearly indicated that all decisions were taken by Sanjay Saha.
They argued that the agreement contained clauses for welfare of partners, as per which all partners had rights, title and interests in all assets and properties in proportion to their profit sharing ratio.
They could draw remuneration subject to profit of the firm and approval of all partners. In view of this, the allegations attributed against the present applicants were covered under the agreement, the applicants argued.
Justice Kotwal agreed with the submission and posted the matter for further hearing on February 22, 2024 after granting the two women interim relief.
Advocates Abhishek Yende, Surbhi Agrawal and Vishal Dhasade appeared for the applicants.
Additional public prosecutor Mahalakshmi Ganapathy appeared for State.
|
ivil Appeal No. 1810 of 1982.
From the Judgment and Order dated 30.3.1982 of the Delhi High Court in S.A.O. No. 204 of 1980.
Ram Panjwani and Vijay Panjwani for the Appellant.
Avadh Behari Rohtagi and P.N. Gupta for the Respondent.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
The tenant is the appellant.
The re spondent landlord filed a petition under section 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act ') for an order of eviction of the appellant tenant for a shop bearing No. 361 (Old No. 467 25 A) Azadpur, G.T. Road, Delhi, on the ground that the tenant Duli Chand has sub:let or parted with the possession of the said shop after 9th day of June, 1952 to M/s Hira Lal Sri Bhagwan illegally and without the written consent of the landlord.
The main contention of the tenant was that there was no sub letting or parting with the possession of the shop, that Hira Lal was a relative of the tenant who died some time prior to 1958, that Sri Bhagwan is the son of the tenant, and that the name of the business was given as M/s Hira Lal Sri Bhagwan in memory of the deceased relative Hira Lal.
He further pleaded that the possession of the shop is with the tenant.
Some other defences like the Respondent petitioner was not a landlord, that he had no locus standi to file the petition for eviction, and that the notice of termination of tenancy was not valid, were taken in the written statement and they were overruled and do not survive for consideration in this appeal.
On the main contention, the tenant has taken up the defence that Sri Bhagwan is the son of the respondent and the name of the business M/s Hira Lal Sri Bhagwan is given only in memory of the deceased relative Hira Lal.
A reply statement was filed by the land lord to the effect that though Sri Bhagwan was the natural son of the tenant Duli Chand, he had been given in adoption to Hira Lal, that on such adoption Sri Bhagwan had gone out of the family of the respondent and that it was a clear case of sub letting or parting with the possession of the shop.
On the facts and circumstances of the case, the question of subletting did not arise but the case was considered on the dispute whether the tenant had parted with possession of the shop.
The tenant never pleaded that he had obtained any written consent from the landlord for parting with posses sion.
The only question, therefore, for consideration in this case is as to whether the tenant had parted with pos session of the whole or part of the tenanted premises.
The learned Rent Controller held that the landlord had not proved parting with possession of the tenanted shop by the tenant.
On appeal by the landlord the Rent Control Tribunal held that the tenant had parted with the legal possession of the tenanted premises and in that view ordered the eviction of the tenant under section 14(1)(b) of the Act.
The second appeal filed by the tenant to the High Court was dismissed confirming the finding of the Rent Control Tribunal that the tenant had parted with possession of the tenanted shop.
Section 14(1)(b) of the Act provides that the Rent Controller may on an application made to him in the pre scribed manner make an order for recovery of possession of the premises on the ground 468 "(b) that the tenant has, on or after the 9th day of June, 1952, sub let, assigned or other wise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.
" The parametric content and the meaning of the words "parted with possession of the whole or any part of the premises" had come up for consideration in a quite number of cases including some of the decisions of this Court.
It is enough if we refer to the latest judgment of this Court on this point.
In Jagan Nath (deceased) through L.Rs.
vs Chander Bhan and Others, ; , Mukharji, J. speaking for the Court held that: "parting with possession meant giving posses sion to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the fight to possession.
So long as the tenant retains the fight to possession there is no parting with possession in terms of clause (b) of section 14(1) of the Act.
" The facts in this case as found by the Rent Control Tribunal which was accepted by the High Court are that the concern M/s Hira Lal Sri Bhagwan is the sole proprietary concern of Sri Bhagwan, that Sri Bhagwan has been carrying on that business in the premises in dispute, that Duli Chand tenant had no interest in the business, that Sri Bhagwan is in exclusive possession of the property, that tenant Duli Chand works at another Shop, M/s Aggarwal Hard ware and Mills Stores with his younger son, that there was no plea of concurrent user of the premises by the tenant nor there is any plea that Sri Bhagwan is a licensee, that occasionally the tenant Duli Chand was seen sitting in the shop and that the tenant had not retained any control over the same.
These facts clearly support the finding of Appel late Tribunal and High Court that the tenant had parted with legal possession of the shop to the said Sri Bhagwan.
The learned counsel for the appellant, however, contend ed that Sri Bhagwan was not the adopted son of Hira Lal and that by permitting the son to carry on business it could not be stated that he had 469 parted with the legal possession of the premises.
In this connection, he drew our attention to the decision of this Court in Lakshman Singh Kothari vs Smt.
Rup Kanwar, ; wherein this Court had held that in order that an adoption may be valid under Hindu Law there must be a formal ceremony of giving and taking by the natural parent and the adopted parent after exercising their volition to give and take the boy in adoption and that such an evidence of a valid adoption is not available in this case.
The Appellate Tribunal and the High Court have dealt with the evidence available in this case in detail and came to the conclusion that Sri Bhagwan was adopted by Hira Lal.
It is not neces sary for us to rely on the evidence available or the find ings as proof of a valid adoption under Hindu Law but the evidence and the findings are enough to show that though Duli Chand and Sri Bhagwan are father and natural son, it is not possible to invoke any presumption that they constituted a Joint Hindu Family.
It may also be mentioned that in the written statement the tenant had not pleaded specifically that he and Sri Bhagwan, constituted a Hindu Joint Family, that they are in joint possession, that either the business is joint family business or Sri Bhagwan was permitted to use the premises for carrying on any business as licensee re maining in joint possession.
The evidence on adoption is thus to be treated only relevant for the purpose of consid ering the question whether the tenant has not retained any control over the premises and that he has parted with the possession, and we do not think that the Courts below erred in relying on the same for this purpose.
At this stage we may dispose of another point raised by the learned counsel in connection with the admissibility of certain evidence in this case.
In support of the case of the landlord that Sri Bhagwan was adopted by Hira Lal he exam ined three witnesses, AW 2, AW 3, and AW 4.
The first wit ness was an Inspector of House Tax According to this witness in the House Tax assessment register Sri Bhagwan was shown as the son of Hira Lal and residing at 26 Sarai Peepal Thalla, which was the residence of Hira Lal and not that of tenant Duli Chand.
The next witness was an Upper Division Clerk of the Excise Department.
His evidence was to the effect that in the licence issued under the Central Excise Act the father 's name of Sri Bhagwan was shown as Hira Lal.
The other witness was Upper Division Clerk in the Sales Tax Department and his evidence was that Sri Bhagwan was an assessee of the Department and as per the records in his office the father 's name of Sri Bhagwan was Hira Lal.
The learned counsel contended that these evidences were inadmis sible under Section 91 of the Evidence Act.
Section 91 of the Evidence Act provides 470 that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such con tract, grant or other disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of Evidence Act.
This Court has considered the scope of section 91 in Bai Hira Devi and Others vs The Official Assignee of Bombay, ; it was held therein: "The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original.
Section 91 is based on which is sometimes de scribed as the "best evidence rule".
The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents.
In a sense, the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act.
" The evidence in this case is not with reference to the terms of contract or grant or any other disposition of property which has been reduced to the form of a document or a case in which the matter is required by law to be reduced in the form of a document but the evidence is to the effect that Sri Bhagwan has given his father 's name as Hira Lal while claiming ownership to the House No. 26, Sarai Peepal Thalla to the Municipality and similarly the evidence of the other witnesses were that while applying for a licence he had given his name as son of Hira Lal.
The evidence may be worth nothing without production of the extracts from the property register or the other books maintained by the departments.
However, that does not make the evidence itself inadmissible.
The learned counsel for the appellant then contended that Sri Bhagwan had been carrying on business right from 1958 to the knowledge of the landlord and that therefore, the landlord shall be deemed to have waived his right to get order of eviction on the ground of parting with the posses sion under section 14(1)(b) of the Act.
In this connection, the learned counsel for the appellant relied on the 471 evidence of the landlord and some of his witnesses.
The landlord in his evidence as AW 1 has stated that Sri Bhag wan has been to his knowledge sitting at the shop since the year 1968 that he has seen the board of M/s Hira Lal Sri Bhagwan since 1972, and that he was residing in the same building behind the shop in dispute.
AW 5 who is the Uncle of the landlord who came to depose on behalf of the landlord in his evidence had stated that the firm M/s Hira Lal Sri Bhagwan is doing the business in premises since 1960 61.
The tenant in his evidence has stated that the firm M/s Hira Lal Sri Bhagwan is functioning in the disputed premises for the last 18 years.
The Rent Controller found that Shri Bhagwan was doing business in the said premises since 1962, i.e., after the death of Hira Lal.
On the basis of this evidence the learned counsel contended that the landlord was aware that Shri Bhagwan was carrying on business for at least 16 years prior to the filing of the petition for eviction and in the circumstance he shall be deemed to have waived his claim for eviction under section 14(1)(b).
The learned counsel for the landlord, however, contended that the land lord had not received the rent after he came to know of the parting with the possession by the tenant that he was col lecting rent till about 1972 only from the tenant Duli Chand, that the tenant defaulted in payment of the rent subsequent to 1972, and the petition for eviction was filed thereafter in 1976 and in such circumstances there could be no question of waiving of his right with knowledge of part ing with possession by tenant could arise in this case.
He also contended legally no such waiver could be pleaded on the language used in section 14(1)(b) of the Act.
In Associated Hotels of India Ltd. Delhi vs S.B. Sardar Ranjit Singh, ; this Court held that, a waiver is an intentional relinquishment of a known right.
There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his right and of facts enabling him to take effectual action for the enforce ment of such right.
In the present case, though there is some evidence to show that the sign board M/s Hira Lal Sri Bhagwan was seen in the premises since 1972 and the landlord had seen Sri Bhagwan sitting in the shop since the year 1968, there is no positive evidence to show when the landlord had came to know of Sri Bhagwan getting the exclusive possession and doing business in the premises.
In fact, since the question of waiver has not been raised in this form in the courts below there is no definite finding as to when the landlord came to know of such parting with possession and Sri Bhagwan doing business in the pre 472 mises as the sole proprietor of M/s Hira Lal Sri Bhagwan and whether he had received rent after such knowledge.
We can not, therefore, permit this point to be raised for the first time in this Court nor can we go into this question of fact.
That apart section 14(1)(b) requires a "consent in writing" of the landlord in order to avoid an eviction on the ground of sub letting, assigning or otherwise parting with the possession of the whole or any part of the premises.
This Court considering the need for obtaining a consent in writ ing under the provision, in M/s. Shalimar Tar Products Ltd. vs
H.C. Sharma and Others, ; quoted with ap proval the following passage from the judgment of the High Court in Delhi Vanaspati Syndicate vs M/s. Bhagwan Dass, Faquir Chand: "Section 16 of the Act of 1958 holds the key to the interpretation of provisions of clause (b) of sub section (1) of section 14 of this Act as well as of clause (b) of sub section (1) of section 13 of the Act of 1952.
It deals with restrictions on sub letting.
Sub section (1) of section 16 makes sub letting lawful though it was without the consent of the landlord provided that the sub letting has taken place before June 9, 1952 and the sub tenant is in occupation of the premises at the time when the Act of 1958 came into force.
Sub section (2) of section 16 reiterates the provisions of clause (b) of sub section (1) of section 13 of the Act of 1952 and lays down that the sub letting after June 9, 1952 with out obtaining the consent in writing of the landlord shall not be deemed to be lawful.
It does not say that the requisite consent should be obtained before sub letting the premises and the consent obtained after sub letting will not enure for the benefit of the tenant.
However, sub section (3) of Section 16 prohib its subletting of the premises after commence ment of Act of 1958 without the 'previous ' consent in writing of the landlord.
The use of the word 'previous ' in this sub section shows that where it was the intention of the legis lature that the consent in writing should be obtained before sub letting it said so specif ically.
The absence of the word 'previous ' in sub section (2) shows that it was not the intention of the legislature that the consent in writing could be obtained before sub letting.
Before the Act of 1952 a tenant could successfully show acquiescence of the landlord in subletting of escape forfeiture of tenancy.
Since the absence of 473 consent in writing by a landlord for sub letting gave rise to Unnecessary litigation between a landlord and a tenant, the Act of 1952 required the consent of the landlord in writing after its commencement.
The purpose seemed to be that the consent of the landlord evidenced by a writing would cut out litiga tion on this ground.
After all a landlord could always agree to sub letting either before or after sub letting of the premises.
For that reason no condition was laid down that such consent should be obtained before sub letting the premises.
" In the aforesaid view it was held that it was necessary for the tenant to obtain the consent in writing to sub letting the premises.
The mere permission or acquiescence will not do.
The consent shall also be to the specific sub letting or parting with possession.
This Court further observed that the requirement of consent to be in writing was to serve a public purpose, i.e., to avoid dispute as to whether there was consent or not and that, therefore, mere permission or acquiescence will not do.
While noting that everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protec tion of the individual in his individual capacity, in the context of the statutory provision of the Delhi Rent Control Act, this Court further held that the requirement as to the consent being in writing was in the public interest and that, therefore, there cannot be any question of waiver of a right, dealing with the rights of the tenants or landlord.
The words used in the section are "without obtaining the consent in writing of the landlord.
" If the words were "without consent of the landlord" it might mean without consent, express or implied and in that sense question of waiver may arise.
The question of implied consent will not arise, if the consent is to be in writing.
The learned counsel for the appellant referred to a number of decisions of the English Courts in support of his contention.
We do not think it necessary to refer to them in view of the direct decision of this Court on this point.
In the circumstances, there are no grounds to interfere with the decisions of the courts below.
This appeal is accordingly dismissed with costs.
Y. Lal Appeal dis missed.
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The Respondent landlord filed a petition under section 14(1)(b) of the Delhi Rent Control Act 1958 for an order of eviction of the appellant tenant from a shop situate at G.T. Road, Delhi on the ground that the tenant Duli Chand had sub let or parted with the possession of the said shop after the 9th of June 1952 to M/s Hira Lal Sri Bhagwan illegally and without the written consent of respondent landlord.
The contention of the appellant tenant was that he had not sub let or parted with the possession of the shop in ques tion.
According to him Hiralal was his relative who died sometime prior to 1958 and that Sri Bhagwan was his son and the name of the business as M/s Hiralal Sri Bhagwan & Compa ny was given in memory of the deceased Hira Lal.
In reply, the Landlord respondent had contended that it was true that Sri Bhagwan was the natural son of Duli Chand but since he had given him in adoption to Hiralal, he had gone out of the family of the appellant and as such it was a clear case of sub letting and parting with the possession of the rented premises.
The Rent Controller, held that the land lord had failed to prove parting with possession of the tenanted shop.
On appeal by the landlord, the Rent Control Tribunal held that the tenant had parted with the legal possession of the premises and in that view ordered the eviction of the appel lant tenant under section 14( 1 )(b) of the Act.
Thereupon the appellant tenant preferred second appeal before the High Court.
The High Court having affirmed the finding of the Tribunal that the appellant tenant had parted with the possession of the premises in dispute, dismissed the appeal.
Hence this appeal by the tenant.
Dismissing the appeal, this Court, HELD: Section 14(1)(b) requires a "Consent in Writing" of the landlord in order to avoid an eviction on the ground of sub letting, 466 assigning or otherwise parting with the possession of the whole or any part of the premises.
[472B] Mere permission or acquiescence will not do.
The consent shah also be to the specific sub letting or parting with possession.
The requirement of consent to be in writing was to serve a public purpose i.e., to avoid dispute as to whether there was consent or not.
[473C] If the words were "without consent of the landlord" it might mean without consent, express or implied and in that sense question of waiver may arise.
The question of implied consent will not arise, if the consent is to be in writing.
[473E] In the instant case, though there is some evidence to show that the sign board M/s Hira Lal Sri Bhagwan was seen in the premises since 1972 and the landlord had seen Shri Bhagwan sitting in the shop since the year 1968, there is no positive evidence to show when the landlord had come to know of Sri Bhagwan getting the exclusive possession and doing business in the premises.
[471G] Jagan Nath (deceased) through L. Rs. vs Chander Bhan & Ors., ; ; Lakshman Singh Kothari vs Smt.
Rup Kanwar, ; ; Bai Hira Devi & Ors.
vs The Official Assign ee of Bombay; , ; Associated Hotels of India Ltd., Delhi vs S.B. Sardar Ranjit Singh, ; and M/s Shalimar Tar Products L,d.
vs H.C. Sharma & Ors.
, ; , referred to.
|
Reportable
Miscellaneous Application No. 2157 of 2023
Writ Petition (Civil) No. 1137 of 2023
X … Petitioner
Versus
Union of India and Anr. …Respondents
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents
A. Facts and procedural history
1. The Registry is directed to anonymize the name of the petitioner in this
judgment, all orders that have been passed as well as in the records which are
publicly available.
2. The petitioner is a married woman of twenty -seven years. She and her
husband have t wo children, the younger of which is about one year old. She filed
the petition under Article 32 for directions to the respondents to permit a medical
termination of her ongoing pregnancy. The petitioner states that she did not
discover that she was pregnant until after twenty weeks of the pregnancy had
elapsed because she had lactational amenorrhea. As a result of lactational
amenorrhea, women who are breastfeeding do not menstruate. She therefore did not realize that the absence of menstruation was indicative of pregnancy. The
petitioner states that she visited the gynaecologist for the first time after the
delivery of her second child because she was feeling weak, nauseous, dizzy and
experiencing abdominal discomfort. She underwent an ultrasound scan, upon
which she realized that she was pregnant. The pregnancy was estimated to be
around twenty -four weeks at that time.
3. The petitioner avers that she and her husband attempted to medically
terminate the pregnancy at various hospitals but that they were unabl e to because
of the Medical Termination of Pregnancy Act 1971
1 read with the Medical
Termination of Pregnancy Rules 20032 (as amended in 2021). She therefore
approached this Court by invoking its writ jurisdiction. She sought permission for
the medical t ermination of her pregnancy on the following grounds:
a. She suffers from post -partum depression and her mental condition does
not permit her to raise another child; and
b. Her husband is the only earning member of their family and they already
have two children to care for. Additionally, they have other family
members who depend on them .
4. The matter was listed before a two- Judge Bench comprising Hima Kohli, J.
and B V Nagarathna, J. on 5 October 2023. On the same day, the Bench directed
the petitioner to appear before a Medical Board constituted by the All India Institute
of Medical Sciences, New Delhi.3 The report submitted to this Court by the Medical
Board is extracted below:
“Details of the woman seeking termination of pregnancy:
2. Age : 27 years.
3. Registration/Case Number: UHID – 107060237.
4. Additional review done at AIIMS:
S.No. Investigations done Key finding
1 Ultrasound done at
20.09.2023 Ultrasonography suggest: Single
live intra uterine fetus of 25
weeks 5 days POG. Estimated
Fetal Weight – 886
gm. Placenta upper segment.
5. Opinion by Medical Board for termination of pregnancy:
(a) Allowed (X)
(b) Denied ( )
Justification for the decision:
The case has been reviewed by the medical board. The weight of the baby by the
scan done on 06/10/2023 is 886gm with gestational age of 25 weeks 5 days.
As per the current status, the baby is viable and has a reasonable chance of
survival.
The chances of post partum psychosis of which the couple is worried of, are present
even at this gestation following delivery.
The mother is a previous 2 LSCS and the chances of complications due to hysterotomy
are there at this gestation.
In such a scenario, the termination of pregnancy may be reconsidered.
The option of antenatal care and delivery at AIIMS, New Delhi has been discussed with
the couple.
6. Physical fitness of the woman for the termination of pregnancy:
By its order dated 9 October 2023, this Court allowed the petition and permitted
the medical termination of the pregnancy on the ground that continuing with the
pregnancy could seriously imperil the mental health of the petitioner. The order was pronounced in Court and the reasons were to follow later.
5. On 10 October 2023, a doctor from AIIMS (who was a member of the
Medical Board which examined the petitioner) emailed Ms. Aishwarya Bhati,
learned ASG, stating that the foetus has a strong chance of survival and seeking
directions from this Court as to whether the foetal heartbeat ought to be stopped.
The email also stated that if the foetal heartbeat was not stopped, the baby would
be placed in an intensive care unit and that there was a high possibility of immediate and long -term physical and mental disability. AIIMS sought a direction
from the Court as to whether a foeticide should be car ried out. The email is
extracted below:
This is regarding the S upreme Court order dated 9.10.2023, regarding
termination of pregnancy of Ms .... Before proceeding for termination, we would
request the following clarifications from the Hon Supreme Cour t:
As the baby is currently viable (will show signs of life and have a strong
possibility of survival), w e will need a directive from the Supreme court on
whether a feticide (stopping the fetal heart) can be done before termination. We
perform this proced ure for a fetus which has abnormal development, but
generally not done i n a normal fetus.
If fetecide i s not performed, this Is not a termination, but a preterm delivery
where the baby born will be provided treatment and care. A baby who Is born
preterm and also of such low birth weight will have a long stay in intensive care
unit, with a high possibility of i mmediate and long term physical and mental
disability which will seriously jeopardise the quality of life of the child. In such a scenario, a direct ive needs to be given as to what is to be done with the baby?
If the parents agree to keep the child this will take a major physical, mental,
emotional and financial toll on the couple. If it is to go for adoption, the process needs to be spelt out clear ly as to needs
to clear that baby who comes i nto the world will have a better chance at life if
the delivery happens after at least 8 weeks.
It Is also to be kept In mind that the consequences of delivery which have
happened in the previous two babies can happen at this time also, with a
delivery now at this time.
We would be obliged if a directive on these is given by the Hon Supreme Court
to ease out the process.
6. Ms. Bhati mentioned the case at 4 pm on 10 October 2023 before the Bench
presided over by the Chief Justice. Ms Bhati informed this Court that in view of the
email extracted above and the ensuing urgency , she mentioned the matter before
Kohli, J (Nagarathna J was presiding over another Bench) and requested t hat it be
listed. Kohli, J. orally informed Ms. Bhati that she was functus officio after passing
the order dated 9 October 2023 and that the matter ought to be mentioned before
the Chief Justice of India so that he may exercise his powers on the administrative
side and constitute a bench to hear the matter. As stated above, Ms. Bhati
mentioned the matter before the Bench presided over by the Chief Justice. The
ASG stated that she would move a recall application, before the same bench
which had heard the petition earlier the urgency arising as a result of the fact that
the Court had direc ted an MTP to be carried out immediately upon the petitioner
reporting to AIIMS. This was the appropriate course on the part of the ASG to
follow since the Judges who had heard the petition (Justices Kohli and
Nagarathna) were not sitting as a Bench thereafter and a special Bench had to be
constituted. This lay within the powers of the Chief Justice on the administrative
side. The Chief Justice constituted the same two-Judge Bench comprising of Kohli,
J. and Nagarathna, J. to hear the application for recall of the order dated 9 October 2023 and the case was directed to be notified on the next day in the sitting list of
11 October 2023.
7. The two- Judge Bench heard the counsel for the petitioners as well as the
ASG. At this juncture, the petitioner filed an affidavit which stated , “I have made a
wilful and conscious decision to medically terminate my pregnancy and don’t want
to keep the baby even if survives .”
8. The judges were unable to agree when the application moved by the ASG
was heard and delivered a split verdict . In her judgment, Kohli, J . held that her
judicial conscience prevent ed her from allowing the prayer in view of the email sent
to Ms. Bhati. Nagarathna, J., on the other hand, held that the order dated 9 October
2023 ought not to be overturned for the following reasons:
a. The interest of the mother, who already had two children and would
deliver a third child within a year of delivering the second, must be given
preference;
b. The socio- economic conditions and the mental state of the petitioner
must be considered by this Court;
c. The decision of the petitioner ought to be respected and must not be
substituted by the decision of this Court ; and
d. A foetus is dependent on the mother and cannot be recognized as a
personality apart from that of the mother as its very existence is owed to
the mother.
9. Following the split verdict, t he petition was directed to be listed before the
present three judge Bench, in view of the difference of opinion between the two
judges on the application for recall of the order dated 9 October 2023. On 13
October 2023, this Court passed an order calling for a further report from AIIMS
on certain specific issues. They were formulated thus :
“(i) Whether the fetus is suffering from any abnormality as provided by
subsection 2(b) of Section 3 of the Act. Though the earlier report mentions that
the fetus is normal, nonetheless, in order to place the matter beyon d doubt, we
request a further report to be submitted on t he above aspect;
(ii) Whether the continuance of the pregnancy of the petitioner to full term would
be jeopardised by the drugs which may be prescribed for the alleged condition
from which the petitioner is stated to be suffering; and
(iii) The medical p rofessionals at AIIMS would be at liberty to carry out their own
diagnosis in regard to the alleged medical condition and to indicate their own
independent evaluation of the mental and physical condition of the petitioner.
Upon doing so, we request the doc tors to apprise this Court if the petitioner is
found to be suffering from post partum psychosis and whether any alternate
administration of medication consistent with the pregnancy would be available
so as to neither jeopardise the well -being of the petit ioner or the fetus in that
regard. This exercise shall be carried out during the course of the day.”
10. The Medical Board constituted by AIIMS comprised of nine doctors,
including in the fields of obstetrics and gynaecology, paediatrics, and psychiatry.
The conclusions in the report submitted by the Medical Board to this Court are
extracted below:
“1. As assessed by USG and Fetal Echo, the fetus does not have any structural
anomaly at the present time.(Report attached).Here the board would also like
to put on record that all abnormalities cannot be picked up on USG scans.
2. The continuation of pregnancy to full term while the woman is on the revised medications (as advised by the psychiatrist on the board) is not likely to
significantly increase the risk of adverse outcomes for the mother and fetus as
compared to other pregnant woman.
3. On a psychiatric assessment the board is of the opinion that she has a past
history of postpartum psychosis, currently controlled on medications. Her
medications have been r eviewed and revised for an optimal management. It is
felt that with proper care and treatment under appropriate medical supervision,
the mother and baby can be managed well during pregnancy and postpartum
as has been previously evidenced by her response to medications in case of
worsening of symptoms, she may be admitted and treated.”
11. Hence, the points put to the Medical Board for determination were answered
in the following terms:
a. No abnormality has been detected in the foetus;
b. The continuation of the pregnancy would not be jeopardised by the
medication which the petitioner is currently taking; and
c. The petitioner has a history of postpartum psychosis which is currently
being contr olled on medication.
A revised medication regime was prescribed for optimal management of the
postpartum psychosis.
12. The issues which arise for the consideration of this Court are:
a. What is the nature of the jurisdiction under which this Court is
adjudicat ing this case; and
b. Can the relief sought in the writ petition be granted?
B. Medical termination of pregnancies
13. The termination of pregnancies is governed by the MTP Act and the rules
framed under it. The MTP Act is a progressive legislation which regulates the
manner in which pregnancies may be terminated. Section 3 spells out c ertain
conditions which must be satis fied before a pregnancy can be terminated.4 The
4 “Section 3 - When pregnancies may be terminated by registered medical practitioners
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical
practitioner shall not be guilty of any offence under that code or under any other law for the time being
in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
2[(2) Subject to the provisions of sub- section (4), a pregnancy may be terminated by a registered
medical practitioner, --
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical prac titioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty -four weeks
in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that - -
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave
injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suff er from any serious physical or
mental abnormality.
Explanation 1. --For the purposes of clause (a), where any pregnancy occurs as a result of failure of any
device or method used by any woman or her partner for the purpose
of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may
be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2. --For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant
woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to
constitute a grave injury to the mental health of the pregnant woman.
(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this
Act.
(2B) The provisions of sub -section (2) r elating to the length of the pregnancy shall not apply to the
termination of pregnancy by the medical practitioner where such termination is necessitated by the
diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.
(2C) Ev ery State Government or Union territory, as the case may be, shall, by notification in the Official
Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such
powers and functions as may be prescribed by rules made under this Act.
(2D) The Medical Board shall consist of the following, namely: -- (a) a Gynaecologist; (b) a Paediatrician;
(c) a Radiologist or Sonologist; and (d) such other number of members as may be notified in the Official
Gazette by the State Gov ernment or Union territory, as the case may be.
conditions depend upon the length of the pregnancy. Where the length of the
pregnancy does not exceed twenty weeks, one Registered Medical Practitioner5
must be of the opinion, formed in good faith, that:6
a. The continuance of the pregnancy would involve a risk to the life of the
pregnant woman or of grave injury to her physical or mental health.7 The
anguish caused by a pregnancy which occurs due to the failure of a
contraceptive method is presumed to const itute a grave injury to the
mental health of the woman;8 or
b. There is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
Where any pregnancy is alleged by the pregnant woman to have been caused by
rape, the anguish caused by the pregnancy is presumed to constitute a grave injury
to the mental health of the woman.10 The presumption adverted to in (a) above
makes it evident that the MTP Act recognizes the autonomy of the pregnant woman and r espects her right to choose the course of her life.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health
as is mentioned in sub- section (2), account may be taken of the pregnant woman’s actual or reasonably
foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who having
attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent
in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent
of the pregnant woman.”
5 “RMP” as defined under Section 2(d) of the MTP Act
6 Section 3(2)(a), MTP Act
7 Section 3(2) (b)(i), MTP Act
8 Explanation 1 to Section 3(2), MTP Act
9 Section 3(2) (b)(ii), MTP Act
10 Explanation 2 to Section 3(2), MTP Act
14. Where the length of the pregnancy exceeds twenty weeks but does not
exceed twenty -four weeks, two RMPs must be of the opinion discussed in the
preceding paragraph.11 The c ategories of women where a pregna ncy beyond 20
weeks and up to 24 weeks may be terminated are permitted to be prescribed by
rules made by the delegate of the legislature. Rule 3B of the MTP Rules (as
amended in 2021) provides grounds for the termination of a pregnancy up to
twenty -four weeks. The termination may be allowed in the following cases or for
the following persons:
a. Survivors of sexual assault or rape or incest;
b. Minors;
c. Change of marital status during the ongoing pregnancy (widowhood and
divorce);
d. Women with physical disabilities with a major disability in terms of the
criteria laid down under the Rights of Persons with Disabilities Act 2016;
e. Mentally ill women including mental retardation;
f. Foetal malformation that has a substantial risk of being incompatible
with life or where in the event of birth, the child may suffer from physical
or mental abnormalities and be seriously handicapped; and
11 Section 3(2)(b), MTP Act
g. Women with pregnancy in humanitarian settings or disaster or
emergency situations as may be declared by the Government.12
In X v. Principal Secretary, Department of Health and Family Welfare,
GNCTD,13 this Court held that the benefits of Rule 3B(c) extend equally to
both single and married women and that the benefits of Rule 3B extend to all
women who undergo a change in their material circumstances.
15. Significantly, if in the opinion of an RMP, the termination of a pregnancy is
immediately necessary to save the life of a pregnant woman, the provisions of
Section 3 which relate to the length of the pregnancy and the opinion of two RMPs
shall not apply.14 Section 4 (which concerns the place at which a pregnancy may
be terminated) shall not apply to such cases as well. The design of the statute
makes it evident that saving the life of the pregnant woman is of paramount
importance, notwithstanding the length of the pregnancy .
12 Rule 3B, MTP Rules : 3-B. Women eligible for termination of pregnancy up to twenty -four weeks. —
The following categories of women shall be considered eligible for termination of pregnancy under
clause ( b) of sub- section (2) Section 3 of the Act, for a period of up to twenty -four weeks, namely —
(a) survivors of sexual assault or rape or incest; ( b) minors;
(c) change of marita l status during the ongoing pregnancy (widowhood and divorce);
(d) women with physical disabilities [major disability as per criteria laid down under the Rights of
Persons with Disabilities Act, 2016 (49 of 2016)];
(e) mentally ill women including mental retardation;
(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born
it may suffer from such physical or mental abnormalities to be seriously handicapped; and
(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be
declared by the Government.
13 2022 SCC OnLine SC 1321
14 Section 5, MTP Act : 5. Sections 3 and 4 when not to apply. —(1) The provisions of Section 4, and so
much of the provisions of sub- section (2) of Section 3 as relate to the length of the pregnancy and the
opinion of not less than two registered medical practitioners, shall not apply to the termination of a
pregnancy by a registered medical practitioner in a case where he is of opi nion, formed in good faith,
that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
16. Further, the provisions of Section 3(2) relating to the length of the pregnancy
shall not apply to the termination of a pregnancy by an RMP, where such
termination is necessitated by the diagnosis of any of the substantial foetal
abnorm alities diagnosed by a Medical Board.15 The Medical Board has the power
to allow or deny the termination of a pregnancy the length of which is beyond twenty -four weeks.
16 It may do so only after ensuring that the procedure would be
safe for the woman at that gestation age and after considering whether the foetal malformation leads to a substantial risk of the foetus being incompatible with life,
or where the child (if it is born) may suffer from such physical or mental
abnormalities as to be seriously handi capped.
17 Therefore, the outer temporal limit
within which a pregnancy may be terminated is lifted in some cases.
17. The position of law can therefore be summarized as follows:
Length of the pregnancy Requirements for termination
Up to twenty weeks Opinion of one RMP in terms of
Section 3(2)
Between twenty and twenty -four
weeks Opinion of two RMPs in terms of
Section 3(2) read with Rule 3B .
Beyond twenty -four weeks If the termination is required to save
the life of the pregnant woman, the
opinion of one RMP in terms of Section
If there are substantial foetal
abnormalities, with the approval of the
15 Section 3(2B), MTP Act
16 Rule 3A(a)(i), MTP Rules
17 Ibid
Medical Board in terms of Section
3(2B) read with Rule 3A(a)(i)
C. Analysis
i. The jurisdiction of this Court to hear this case
18. Having described the factual background, the procedural history, and the
framework of law, we turn to the issues raised in this case. As noticed in the first
segment of this judgment, the Union of India filed an application for the recall of
the order dated 9 October 2023 passed by a two- Judge Bench of this Court on the
ground that one of the doctors on the Medical Board emailed the lear ned ASG,
seeking a clarification of that o rder.
19. It is trite law that once a judgment or order attains finality, a party seeking to
challenge the decision rendered may do so only by taking recourse to one of the
following :
a. Invoking the jurisdiction of the court to review the judgment or order ;
b. Preferring an appeal against the judgment or order (where an appeal
lies); or
c. In the case of the Supreme Court, filing a curative petition;
The reason for the availability of a limited number of routes by which a
judgment can be challenged is that there must be quietus to a dispute.
Unlimited modes by which judgments or orders can be challenged would
result in chaos, uncertainty, and unpredictability. This is also the reason why
an application for recall of an order or judgment cannot be entertained by this
Court , save and except in exceptional circumstances such as where a party
which is directly affected was not served with notice of the proceedings .
Otherwise, the hearing and disposal of an application for recall may even
have the effect of creating an intra- court appeal, which is impermissible and
wholly unknown to this Court. Indeed, this Court has repeatedly deprecated
the practice of filing applications for recall and noted that they may sometimes
be an abuse of the process of the law .18
20. In the present case, the Union of India filed an application for recall because
certain aspects of the situation at hand were brought to its attention after the
petition was disposed of by the order dated 9 October 2023. We have no doubt that there was no intention to abuse the process of the law. However, the
appropriate procedure which it ought to have followed would be to file a Review
Petition, accompanied by an application for urgent listing and an application for hearing in open court, given the urgency of the matter. The Bench consisting of
Kohli and Nagarathna , JJ agreed to hear the matter. The immense urgency at that
time did not permit this Court to address the reasons for doing so. The reasons are
addressed presently.
21. Under Article 142 of the Constitution, this Court has the power to pass such
decree or make such order as is necessary for doing complete justice in any cause
18 Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296; Order dated 3 September 2020 in M.A.
No.1434 of 2020 in Misc. Application Diary No.15272 of 2020 in Suo Moto Contempt Petition (Criminal)
No. 2 of 2019
or matter pending before it. In State v. Kalyan Singh ,19 this Court observed that
Article 142 permitted it to relax the application of law depending upon the particular
facts and circumstances of the case:
“22. ... This article gives a very wide power to do complete justice to the parties
before the Court, a power which exists in the Supreme Court because the
judgment delivered by it will finally end the litigation between the parties. It is
important to notice that Article 142 follows upon Article 141 of the Constitution, in which it is stated that the law declared by the Supreme Court shall be bin ding
on all courts within the territory of India. Thus, every judgment delivered by the Supreme Court has two components — the law declared which binds courts in
future litigation between persons, and the doing of complete justice in any cause
or matter wh ich is pending before it. It is, in fact, an Article that turns one of the
maxims of equity on its head, namely, that equity follows the law. By Article 142,
as has been held inState of Punjab [State of Punjab v. Rafiq Masih, (2014) 8
134] judgment, equity has been given precedence over law. But it is not the kind
of equity which can disregard mandatory substantive provisions of law when the court issues directions under Article 142. While moulding relief, the court can
go to the extent of relaxing the application of law to the parties or exempting altogether the parties from the rigours of the law in view of the peculiar facts and circumstances of the case. This being so, it is clear that
this Court has the power, nay, the duty to do complete justice in a case
when found necessary. ... ”
(emphasis supplied)
22. In the present case, this Court is justified in exercising its jurisdiction under
Article 142 in view of the following circumst ances :
a. This is not an ordinary civil case. Rather, it is one which concerns the
viability of a medical termination of a pregnancy and the course of action
to be adopted by the doctors on the basis of the development of the
foetus;
b. Certain aspects of the c ase which ought to have been brought to the
attention of this Court came to light after the order dated 9 October 2023
had been passed. This was not within the control of any of the parties to
the case but was the result of the actions of a third party alt ogether (the
Medical Board) . However, this information could have had a bearing on
the directions issued by this Court ; and
c. There was immense urgency in this matter.
ii. Decision on the prayer
23. We now turn to the issue of whether the relief sought in the writ petition can
be granted.
24. As noticed above, the length of the pregnancy has crossed twenty -four
weeks. It is now approximately twenty -six weeks and five days. A medical
termination of the pregnancy cannot be permitted for the following reasons:
a. Having cross ed the statutory limit of twenty -four weeks, the
requirements in either of Section 3(2B) or Section 5 must be met;
b. There are no “ substantial foetal abnormalities ” diagnosed by a Medical
Board in this case, in terms of Section 3(2B). This Court called for a
second medical report from AIIMS to ensure that the facts of the case
were accurately placed before it and no foetal abnormality was detected;
and
c. Neither of the two reports submitted by the Medical Boards indicates
that a termination is immediately necessary to save the life of the
petitioner, in terms of Section 5.
25. Under Article 142 of the Constitution, this Court has the power to do
complete justice. However, this power may not be attracted in every case. If a
medical termination were t o be conducted at this stage, the doctors would be faced
with a viable foetus. One of the options before this Court , which the email from
AIIMS has flagged, is for it to direct the doctors to stop the heartbeat. This Court
is averse to issuing a direction of this nature for the reasons recorded in the
preceding paragraph. The petitioner, too, did not wish for this Court to issue such
a direction. This was communicated by her to the court during the course of the hearing. In the absence of a direction to st op the heartbeat, the viable foetus would
be faced with a significant risk of lifelong physical and mental disabilities. The
reports submitted by the Medical Board speak for themselves.
26. For these reasons, we do not accede to the prayer for the medical
termination of the pregnancy.
27. The delivery will be conducted by AIIMS at the appropriate time. The Union
Government has undertaken to pay all the medical costs for the delivery and
incidental to it.
28. Should the petitioner be inclined to give the child up for adoption, the Union
Government has stated through the submission of the ASG that they shall ensure
that this process takes place at the earliest, and in a smooth fashion. Needless to
say, the decision of whether to give the child up for adoption is entire ly that of the
parents.
29. The application for recall of the order dated 9 October 2023 is allowed. The
petition and the application are disposed of in terms of the directions above.
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A three-judge bench of the Supreme Court on Monday rejected a plea to abort a pregnancy that had crossed the threshold of 24 weeks under the Medical Termination of Pregnancy Act, 1971 (MTP Act) in view of a medical report that the foetus is viable.
A bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra said that it cannot go beyond the law as per which termination of pregnancy beyond 24 weeks is permissible only in case of foetal abnormalities or to save the life of the pregnant woman.
Since this case did not fall under either of the exceptions, the plea was rejected.
The Court passed the verdict this afternoon nearly a week after a division bench gave a split verdict in the matter on October 11.
The Court today directed the delivery of the child to be conducted at the All India Institute of Medical Sciences (AIIMS). The parents of the child are free to give the baby up for adoption if they wish to do so, the Court added.
"Under Article 142 of the Constitution, this Court has the power to do complete justice. However, this power may not be attracted in every case. If a medical termination were to be conducted at this stage, the doctors would be faced with a viable foetus. One of the options before this Court, which the email from AIIMS has flagged, is for it to direct the doctors to stop the heartbeat ... In the absence of a direction to stop the heartbeat, the viable foetus would be faced with a significant risk of lifelong physical and mental disabilities. The reports submitted by the Medical Board speak for themselves. For these reasons, we do not accede to the prayer for the medical termination of the pregnancy," the Court said.
The matter involved a married couple who had conceived a third time. The pregnancy had crossed the legally permissible limit of 24 weeks for abortions under the MTP Act.
The Court was informed that the mother was not aware that she had conceived again since she was going through post-partum infertility and also suffered from post-partum depression.
Over the course of earlier hearings, the three-judge bench had found itself torn on whether it should allow abortion after a doctor indicated that the foetus could be born with a heartbeat if it is delivered at present.
Before this, a Division Bench of Justices Hima Kohli and BV Nagarathna had delivered a split verdict in the matter. While Justice Kohli was not in favour of abortion, Justice Nagarathna opined that the view of the pregnant woman should be respected despite objections that the foetus would be born alive.
The matter was marred by controversy, with the previous Division Bench pulling up the Central government for approaching CJI Chandrachud with an oral request to recall an earlier order passed by the two judges to allow the termination of the pregnancy.
The CJI later broke a seven-judge Constitution Bench to hear the matter as part of the three-bench constituted to take a final decision following the split verdict of October 11.
Additional Solicitor General Aishwarya Bhati appeared for the Central government today and argued that the matter was not about being pro-choice or otherwise.
"Now this is a Hobson's choice between preterm delivery and on-time delivery. And on-time delivery, it will give the child a fighting chance. I will stand by that. After 24 weeks, once it is a viable life choice, termination goes once the medical report says that the child is fine," she argued.
Senior Advocate Colin Gonsalves submitted that as per international law, an unborn child or an unborn foetus does not have overriding rights.
"Foeticide has been permitted in last 12 years through a guideline of the government and it was laid down in the Nikhil Datar case. All abortions leads to death of foetus as it stills the heart of the child," he argued.
He added that there were no gestational restrictions as to when a pregnancy can be terminated.
The CJI, however, pointed out that India has specific laws on these matters which have to be complied with.
"We have our own laws. Exceptions (where abortions are permitted beyond a certain limit) are to foetal abnormalities and to save life of a pregnant woman. In the absence of a challenge to the validity of the (MTP) Act, we have to consider the law as it is. Keep your powder dry for the challenge to the validity of the law. Government of India cannot act contrary to the mandate of this statute," the CJI observed.
The CJI added that India is not regressive compared to the situation in America after the Roe v. Wade ruling was overturned.
"The legislature has done the act of balancing here in India in 2021. Now it is for courts to see if the balancing act is correct or not. Can we deny the power of the legislature to take such steps in these incremental matters? Why should we deny that power to a democratically elected legislature and are we better to do more than that?" he asked.
Gonsalves replied that India is regressive when it comes to its abortion laws, to which the CJI disagreed.
"I do not think so. Every democracy has its own organs and they must function. You are telling us to override our statute based on WHO statement? I do not think this can be done", the Chief Justice of India said.
The counsel for the woman reiterated that the pregnancy was unwanted. However, the Court ultimately decided not to accede to the pregnant woman's plea.
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1.This appeal has been preferred assailing the correctness
of the judgment and order of the High Court of Madhya
Pradesh at Gwalior dated 28.09.2010 passed in Criminal
Appeal No.231 of 2003 dismissing the appeal of the appellant
and confirming the conviction and life sentence recorded by
the Trial Court under Section 302 IPC.
2.The present one is a case of circumstantial evidence.
The prosecution led evidence to establish three links of the
chain, (i) motive, (ii) last seen, and (iii) recovery of
weapon of assault, at the pointing out of the appellant. The
High Court, while dealing with the evidence on record,
agreed with the finding of motive and the last seen,
however, insofar as the recovery of the weapon of assault
and blood-stained clothes were concerned, the High Court in
paragraph 18 of the judgment held the same to be invalid and
also goes to the extent to say that the recovery which has
been made does not indicate that the appellant has committed
the offence. Still, it observed that looking to the entire
gamut and other clinching evidence against the appellant of
last seen and motive, affirmed the conviction.
3.We do not find such conclusion of the High Court to be
strictly in accordance with law. In a case of
circumstantial evidence, the chain has to be complete in all
respects so as to indicate the guilt of the accused and also
exclude any other theory of the crime. The law is well
settled on the above point. Reference may be had to the
following cases:
(i)Sharad Birdhichand Sarda vs. State of Maharashtra 1 ;
(ii)Sailendra Rajdev Pasvan vs. State of Gujarat Etc. 2
4.Thus, if the High Court found one of the links to be
missing and not proved in view of the settled law on the
point, the conviction ought to have been interfered with.
5.Accordingly, we allow this appeal and set aside the
conviction and sentence of the appellant. The appellant is
already on bail, his bail bonds are cancelled and sureties
if any, stand discharged.
6.Pending application(s), if any, shall stand disposed of.
Date : 14-06-2023 This appeal was called on for hearing today.
For Appellant(s) Mr. Ram Swarup Sharma, AOR (Not Present)
For Respondent(s) Mr. Nachiketa Joshi, A.A.G.
Mr. Yashraj Singh Bundela, AOR
UPON hearing the counsel the Court made the following
The appeal is allowed, in terms of the signed order.
The appellant is already on bail, his bail bonds are cancelled
and sureties if any, stand discharged.
(Signed order is placed on the file)
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In a case of circumstantial evidence, the chain of evidence has to be complete in all respects and also exclude any other theory, the Supreme Court emphasised recently while acquitting a man in a 22-year-old murder case [Laxman Prasad @ Laxman v. State of Madhya Pradesh].
A division bench of Justices Vikram Nath and Ahsanuddin Amanullah added that if there are any missing or unproven links in the chain of circumstantial evidence, the case against the accused would fall apart.
"In a case of circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime. The law is well settled on the above point," the judgment stated.
The Court made the observation while allowing an appeal challenging a 2010 decision of the Madhya Pradesh High Court, which had upheld the conviction of the appellant under Section 302 (dealing with murder) of the Indian Penal Code (IPC).
In the present case, the circumstantial evidence cited against the accused by the police included motive, last seen, and recovery of an assault weapon from the appellant.
The High Court had found that the two of these links, namely, motive and the last seen had been proved. However, the third link, that is, the recovery of a weapon from the appellant, was found to be unproven or invalid.
Nevertheless, the High Court affirmed the conviction of the appellant for murder.
On further appeal, the Supreme Court held that the High Court had erred in this approach.
Placing reliance on the cases of Sharad Birdichand Sharda v. State of Maharashtra (1984) and Sailendra Rajdev Pasvan v. State of Gujarat (2020), the top court observed,
"If the High Court found one of the links to be missing and not proved in view of the settled law on the point, the conviction ought to have been interfered with."
Hence, the Supreme Court set aside the conviction of the appellant and allowed the appeal.
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The Roster of Sitting of the Hon’bl e Judges of this Court effec tive from 28.11.2022 is as under:-
Division Benches
Hon’ble Mr. Justice Satish Chandra
Sharma (Chief Justice)
Hon’ble Mr. Justice Subramonium
Prasad
1. All PIL matters.
2. Letters Patent Appeals (other than service matters) for the
years 2021 and 2022.
3. Letters Patent Appeals (pertainin g to service) of the year
2021 and 2022.
4. Writ Petitions challenging th e constitutional validity of
any Act, Statutory Rule, Regulation or Notification other
than tax for the year 2021 and 2022.
5. Writ Petitions challenging Constitutional validity of any
Act, Statutory Rule, Regulation or Notification impacting
Criminal Investigation, Trial, Prosecutions etc.
6. Writ Petitions (Tender).
7. Misc. Writ Petitions invoking constitutional provisions
and Writ Petitions other than the specified categories.
8. Matters to be heard b
y Commercial Appellate Division.
9. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Siddharth Mridul
Hon’ble Mr. Justice Talwant Singh 1. Matters relating to street vendors/Tehbazari.
2. First Appeals from Orders (Ori ginal Side) of the year 2022
3. Criminal Contempt Petitions.
4. Criminal Contempt References.
5. Criminal Writ Petitions includ ing those relating to Habeas
Corpus and Preventive Detention.
6. Criminal Appeals for the years 2020, 2021 & 2022.
7. Matters to be heard by Commercial Appellate Division.
8. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Manmohan
Hon’ble Mr. Justice Saurabh Banerjee
1. Writ Petitions challen
ging the constitutional validit y of an y
Act, Statutor y Rule, Re gulation or Notification other than tax
upto the year 2019.
2. Writ Petitions challenging orders passed b y the Hi gh Court
on Administrative Side.
3. IPR Appellate Division to hear all categories of matters
relating to IPR.
4. Matters to be heard by Commercial Appellate Division .
5. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Rajiv Shakdher
Hon’ble Ms. Justice Tara Vitasta
Ganju 1. Writ Petitions challen ging Constitutional validit y of an y
Act, Statutor y Rule, Re gulation or Notification pertainin g
to Tax (including Municipal Tax).
2. Income Tax References, Wealth Tax and Gift Tax cases.
3. Income Tax Appeals.
4. Writ Petition (Tax) other than those listed before DB-IV.
5. Matters to be heard by Commercial Appellate Division.
6. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Suresh Kumar
Kait Hon’ble
Ms.Justice Neena Bansal
Krishna 1. Writ petitions (Service) relating to Armed Forces.
2. Contempt Appeals.
3. Regular First Appeals (Original Side) .
4. Matters to be heard by Commercial Appellate Division. 5. Regular hearing matters of the above categories.
Hon’ble Ms. Justice Mukta Gupta
Hon’ble Ms. Justice Poonam A. Bamba
1. Writ Petitions challenging Constitutional validity of any
Act, Statutory Rule, Regulation or Notification impacting
Criminal Investigations, Tria ls, Prosecutions etc.
2. Criminal Appeals upto the year 2019.
3. Death Sentence References.
4. Criminal Leave Petitions.
5. Criminal Revision Petitions.
6. Matters to be heard by Commercial Appellate Division.
7. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Najmi Waziri
Hon’ble Mr. Justice Sudhir Kumar
2. Writ Petitions relating to MTNL, MCD & NDMC.
3. Letters Patent Appeals upto the year 2017.
4. First Appeals from Orders (Ori gl. Side) upto the year 2018
5. Letters Patent Appeals (pertainin g to service) of the year
2018, 2019 and 2020.
6. Execution First Appeals (Original Side).
7. Matters to be heard by Commercial Appellate Division.
8. Regular hearing matters of the above categories.
Hon’ble Mr.Justice Sanjeev Sachdeva
Hon’ble Mr.Justice Rajnish Bhatnagar 1. Misc. Appeals (PMLA).
2. RERA Appeals.
3. Writ Petitions challenging Constitutional validity of any
Act, Statutory Rule, Regulation or Notification pertaining
to Service.
4. Appeals against the orders of the Family Courts.
5. Matters to be heard by Commercial Appellate Division .
6. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Vibhu Bakhru
Hon’ble Mr. Justice Purushaindra
Kumar Kaurav 1. Writ Petitions challenging the constitutional validity of any
Act, Statutory Rule, Regulation or Notification other than
tax for the year 2020.
2. Letters Patent Appeals (other than service matters) for the
years 2018, 2019 and 2020.
3. Sales Tax cases and GST cases + ST Ref. 4. First Appeals from Orders (Original Side) of the years
5. Company Appeals.
6. Service Tax cases, Central Excise Act cases, Custom Act
cases and VAT Appeals.
7. Writ Petitions pertaining to Service Tax, Central Excise Act,
Custom Act and Value Added Tax (VAT) cases. 8.
Regular First Appeals from orders of Copyright Board.
9. Matters to be heard by Commercial Appellate Division.
10. Regular hearing matters of the above categories.
Hon’ble Mr. Justice V.Kameswar Rao
Hon’ble Mr. Justice Anoop Kumar
Mendiratta 1. Writ Petitions (Service) arisin g out of the orders of CAT.
2. Writ Petitions (Co-op. Societies)
3. Writ Petitions (Land Acquisition).
4. Writ petitions pertaining to Service Matters required to
be listed before the Division Bench.
5. Appeals under the Chartered Accountants Act.
6. Matters to be heard by Commercial Appellate Division.
7. Regular hearing matters of the above categories.
Single Benches (Civil Jurisdiction)
Hon’ble Ms. Justice Rekha Palli 1. Civil Misc. Main (MV Act).
2. MACT Appeals from the year 2016 onwards.
3. Land Acquisition Appeals upto the year 2018.
4. Civil Writ Petitions relating to Nationalized Banks and
Financial Institutions.
5. Civil Writ Petitions (Labour) from the year 2011 onwards
6. Transfer Petitions (Civil).
7. All categories of Matrimonial Cases.
8. Regular hearing matters of the above categories.
Hon’ble Ms. Justice Prathiba M.
Singh 1. Civil Writ Petitions Misc. including those involving
statutory authorities, DT C, Urban Arts Commission,
Airport Authority of India etc. from the year 2018, 2019,
2020, 2021 and 2022.
2. Civil Writ Petitions (RTI).
3. Regular hearing matters of the above categories.
Hon’ble Ms. Justice Jyoti Singh
1. Civil Writ Petitions (Service) from the year 2016 onwards
2. Regular First Appeals of the years 2020, 2021 and 2022.
3. First Appeals from Orders (MACT).
4. Civil Revision Petitions.
5. Regular hearing matters of the above category.
Hon’ble Mr. Justice Manoj Kumar
Ohri
1. Civil Writ Petitions (Railways, Cantonment Board,
Electricity, DJB, and MTNL.
2. Civil Writ Petitions (MCD)
3. Civil Writ Petitions (NDMC)
4. Civil Writ Petitions (Waqf Board)
5. Civil Writ Petitions (STA)
6. First Appeals from Orde rs (other than MV Act).
7. Regular hearing matters of the above categories.
Hon’ble Ms. Justice Mini Pushkarna 1. Civil Writ Petitions relating to Land Reforms including
matters relating to allotment of alternative land.
2. All categories of case s under the P.P. Act.
3. Civil Writ Petitions (Servi ce) upto the year 2015.
4. Regular First Appeals upto the year 2014.
5. Regular First Appeals for the year 2022.
6. Civil Writ Petitions (Education ) relating to admissions in
schools, CBSE matters, evaluation/totaling of marks in examination and matters relating to Managing Committee of aided schools.
7. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Vikas Mahajan 1. Civil Writ Petitions (Education).
2. Civil Writ Petitions (Election)
3. Civil Writ Petitions (S.H. at Work place and mines).
4. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Tushar Rao
Gedela
1. Civil Writ Petitions Misc. including those involving
statutory authorities, DT C, Urban Arts Commission,
Airport Authority of India, etc. upto the year 2012.
2. Civil Misc. Main (other than MV Act, PP Act and
matrimonial cases)
3. Land Acquisition Appeals of 2019, 2020, 2021 & 2022.
4. Regular First Appeals of the years 2017, 2018 and 2019.
5. Regular Second Appeals.
6. Execution First Appeals.
7. Execution Second Appeals.
9. Original Reference.
10. Regular hearin g matters of the above cate gory.
Hon’ble Ms. Justice Manmeet Pritam
Singh Arora 1. Civil Writ Petitions (DDA)
2. Civil Contempt Petitions.
3. Rent Control Revisions.
4. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Gaurang Kanth
1. Civil Writ Petitions Misc. includin g those involvin g
statutory authorities, DT C, Urban Arts Commission,
airport Authority of India etc. from the year 2013 to 2017.
2. Regular First Appeals of the years 2015, 2016 and 2022.
3. Civil Writ Petitions (Labour) upto the year 2010.
4. MACT Appeals upto the year 2015.
5. Regular hearing matters of the above categories.
Single Benches (Criminal Jurisdiction)
Hon’ble Mr. Justice Yogesh Khanna
1. Bail matters.
2. Criminal Appeals of the year 2022.
3. Criminal Revision Petition of the year 2017 & 2022.
4. Crl. Misc. Main cases of the year 2021 and 2022.
5. Criminal Leave Petitions of the year 2019 and 2022.
6. Writ Petitions (Crl) of years 2016, 2017, 2018, 2019 & 2022.
7. Cases relating to sexual harassment.
8. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Anup Jairam Bhambhani 1. Bail matters.
2. Criminal Appeals of the years 2015 , 2016 & 2022
3. Crl. Misc. Main cases of the years 2017 and 2022.
4. Crl. Revision Petitions of the year 2022.
5. Crl. Leave Petitions of the year 2022.
6. Writ Petitions (Criminal) of the year 2020 and 2022.
7. Cases relating to sexual harassment.
8. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Jasmeet Singh 1. Bail Matters.
2. Criminal Appeals upto the year 2006, 2020 & 2022.
3. Criminal Misc. Main cases of the year 2022.
4. Criminal Revision Petition s of the years 2014 & 2022.
5. Writ Petitions (Crl) of the years 2021 & 2022
6. Criminal Leave Petitions of the years 2018 and 2022.
7. Cases relating to sexual harassment.
8. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Dinesh Kumar Sharma 1. Bail Matters.
2. Crl. Appeals of the years 2007, 2008, 2019 & 2022.
3. Criminal Misc. Main cases of the year 2019 and 2022.
4. Criminal Revision Petition of the year 2015, 2016 & 2022.
5. Writ Petitions (Crl) of the year 2022.
6. Crl. Leave Petitions of the year 2021 and 2022.
7. Criminal cases relating to sitting/former MPs/MLAs.
8. Cases relating to sexual harassment.
9. Regular hearing matters of the above categories.
Hon’ble Ms. Justice Swarana Kanta Sharma 1. Bail Matters.
2. Crl. Appeals of the years 2009, 2010, 2011 and 2022.
3. Criminal Misc. Main cases upto the year 2010 and of the
years 2020 and 2022.
4. Crl. Revision Petitions of the years 2018 and 2022.
5. Writ Petitions (Crl) upto the year 2015 and 2022.
6. Cases relating to sexual harassment.
7. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Amit Mahajan
1. Bail Matters.
2. Writ Petitions (Crl) of the year 2022.
3. Criminal Appeals of the years 2012, 2013 , 2014 & 2022.
4. Criminal Misc. Main cases of the years 2015, 2016 and 2022.
5. Criminal Revision Petition of the years 2020 and 2022.
6. Cases relating to sexual harassment.
7. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Anish Dayal
1. Bail Matters.
2. Criminal Appeals of the years 2021 & 2022
3. Criminal Revision Petition of the year 2021 & 2022.
4. Criminal Leave Petitions upto the year 2017, 2020 & 2022.
5. Criminal Misc. Main cases of the years 2018 and 2022.
6. Writ Petitions (Crl) of the year 2022.
7. Transfer Petitions (Criminal).
8. Cases relating to sexual harassment.
9. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Amit Sharma 1. Bail Matters.
2. Criminal Appeals of the years 2017, 2018 & 2022.
3. Criminal Misc. Main cases of the years 2011, 2012, 2013,
4. Criminal Revision Petitions up to the year 2013 and of the
years 2019 & 2022.
5. Writ Petitions (Crl) of the year 2022.
6. Cases relating to sexual harassment.
7. Regular hearing matters of the above categories.
Original Jurisdiction (Civil)
Hon’ble Mr.Justice Yashwant Varma
(Judge-in-Charge)
(‘C’ Court) 1. Matters to be heard by the Commercial Division.
2. Original Side Matters (includi ng Finals) of the years 2019,
3. Matters under the Arbitration Act, 1940 and Arbitration
and Conciliation Act, 1996 of the year 2021 & 2022.
4. All Execution Petitions includ ing the petitions under the
Arbitration Act, 1940 and Arbi tration & Conciliation Act,
1996 of the year 2021 and 2022.
5. Regular hearing matters of the aforesaid categories.
Hon’ble Mr. Justice Navin Chawla
(‘F’ Court) 1. Matters to be heard by the Commercial Division.
2. Original Side Matters (inclu ding Finals) of the years 2014,
3. Matters under the Arbitration Act,1940 and Arbitration &
Conciliation Act, 1996 (including Finals) of the years
3. Regular hearing matters of the aforesaid categories.
Hon’ble Mr. Justice Chandra Dhari
Singh
(‘G’ Court) 1. Matters to be heard by the Commercial Division.
2. Matters under the Arbitration Act,1940 and Arbitration &
Conciliation Act, 1996 (including Finals) of the years 2019,
3. Original Side Matters (includi ng Finals) upto the year 2013
and of the years 2021 & 2022.
4. Regular hearing matters of the aforesaid categories.
Hon’ble Mr. Justice Prateek Jalan
(‘A’ Court) 1. Matters to be heard by the Commercial Division.
2. Original Side Matters (including Finals) of the years
3. Matters under the Arbitration Act,1940 and Arbitration &
Conciliation Act, 1996 (including Finals) of the years 2015,
2017, 2018, 2019, 2020, 2021 and 2022.
4. Execution Petitions under the Arbitration Act, 1940 and
Arbitration & Conciliation Act, 1996 upto the year 2020.
5. Regular hearing matters of the aforesaid categories.
Hon’ble Mr. Justice Sachin Datta
(‘D’ Court) 1. Matters to be heard by the Commercial Division.
2. Original Side Matters (includi ng Finals) of the years 2018,
3. Matters under the Arbitration Act, 1940 and Arbitration
& Conciliation Act, 1996 (inc luding Finals) upto 2014 and
of the years 2020, 2021 & 2022.
4. Regular hearing matters of the aforesaid categories.
IP Division
Hon’ble Mr. Justice C. Hari Shankar
(‘E’ Court) 1. Matters to be heard by the Commercial Division relating
to IPR disputes.
2. Matters relating to Intellectual Property Rights.
3. IPR Suits of the years 2021 and 2022.
4. Regular hearing matters of the above category.
Hon’ble Mr. Justice Sanjeev Narula
(‘I’ Court) 1. Matters to be heard by the Commercial Division relating
to IPR disputes.
2. Matters relating to Intellectual Property Rights.
3. IPR Suits upto the year 2014 and of the years 2019, 2020
and 2022.
4. All Company Matters.
5. Regular hearing matters of the above category.
Hon’ble Mr. Justice Amit Bansal
(‘H’ Court) 1. Matters to be heard by the Commercial Division relating
to IPR disputes.
2. Matters relating to Intellectual Property Rights.
3. IPR Suits of the years 2015, 2016, 2017, 2018 and 2022.
4. Regular hearing matters of the above category.
General Notes:
1. All fresh PILs shall be listed before the Be nch presided over by the Chief Justice.
2. Mentioning of urgent matters will be before DB-I.
3. Matters other than part-heard, pr esently pending before various Benches, shall stand transferred to
the respective Benches as per the above roster.
4. Regular/final hearing matters would be listed chro nologically so that old matters can be given
priority in disposal.
5. Specially directed matters may be assigned by the Chief Justice to any of the above Benches or any
of the Hon’ble Judges sitting singly or to specially constituted Benches.
6. ‘Commercial Appellate Division’ has been constitu ted with ten Division Benches, namely, DB-I,
members of said Division Benches, as per the pr esent roster, have been nominated to be the Judges
of the Commercial Appellate Division.
7. Matters to be heard by the Commercial Appellate Di vision shall be assigned by the Chief Justice
amongst the seven Commercial Appellate Divisions.
8. ‘Commercial Division’ consists of eight benches of a Single Judge each. Hon’ble Mr. Justice
Yashwant Varma, Hon’ble Mr. Justice Navin Chaw la, Hon’ble Mr. Justice C. Hari Shankar, Hon’ble
Mr. Justice Chandra Dhari Singh, Hon’ble Mr. Justice Prateek Jala n, Hon’ble Mr. Justice Sanjeev
Narula, Hon’ble Mr. Justice Amit Bansal and Hon’ble Mr. Justice Sachin Datta have been
nominated to be the Judges of the ‘Commercial Division’.
9. Hon’ble Mr. Justice C. Hari Shank ar, Hon’ble Mr. Justice Sanjeev Narula and Hon’ble Mr. Justice
Amit Bansal have been nominated to function as ‘IP Division’.
10. Matters to be heard by the IP Division shall be assigned by Hon’ble Judge In-charge (Original Side)
amongst the three IP Divisions.
11. In the event of change in the Judges nominated by the Chief Justice constituting the ‘Commercial
Division’ and ‘Commercial Appellate Division’, pa rt-heard matters shall stand transferred to the
Hon’ble Judge who will have the power of ‘Co mmercial Division’ and ‘Commercial Appellate
Division’, limited to that case only.
12. Hon’ble Judge-in-Charge, Original Side will distribute fresh Arbitration Matters including
Commercials Matters under the Arbitration Act, 1940 and the Arbitratio n and Conciliation Act,
13. Hon’ble Judge-in-Charge, Original Side will mark matters other than Arbitration Matters including
14. All the Hon’ble Judges on the Original Side are empowered to deal with suits/petitions arising
under the Arbitration and Conciliation Act,1996 fa lling under Section 20-B of the Specific Relief
Act,1963.
15. All fresh Bail Applications shall be equally distri buted amongst all the Single Bench Judges sitting
on the Criminal Roster.
16. Fresh Criminal Leave Petitions shall be equally distributed between Hon’ ble Mr. Justice Yogesh
Khanna, Hon’ble Mr. Justice Anup Jairam Bhambhani , Hon’ble Mr. Justice Jasmeet Singh, Hon’ble
Mr. Justice Dinesh Kumar Sharma and Hon’ble Mr. Justice Anish Dayal.
17. Fresh Criminal Appeals shall be equally distribu ted amongst Hon’ble Mr. Justice Yogesh Khanna,
Hon’ble Mr. Justice Anup Jairam Bhambhani, Ho n’ble Mr. Justice Jasmeet Singh, Hon’ble Mr.
Justice Dinesh Kumar Sharma, Hon’ble Ms. Ju stice Swarana Kanta Sharma , Hon’ble Mr. Justice
Amit Mahajan, Hon’ble Mr. Justice Anish Daya l and Hon’ble Mr. Justice Amit Sharma.
18. Fresh Criminal Writ Petitions sh all be equally distributed amon gst Hon’ble Mr. Justice Yogesh
Khanna, Hon’ble Mr. Justice Anup Jairam Bhambhani , Hon’ble Mr. Justice Jasmeet Singh, Hon’ble
Mr. Justice Dinesh Kumar Sharma, Hon’ble Ms. Ju stice Swarana Kanta Sharma , Hon’ble Mr. Justice
Amit Mahajan, Hon’ble Mr. Justice Anish Da yal and Hon’ble Mr. Justice Amit Sharma.
19. Fresh Criminal Revision Petition s shall be equally distributed am ongst Hon’ble Mr. Justice Yogesh
Khanna, Hon’ble Mr. Justice Anup Jairam Bhambhani , Hon’ble Mr. Justice Jasmeet Singh, Hon’ble
Mr. Justice Dinesh Kumar Sharma, Hon’ble Ms. Ju stice Swarana Kanta Sharma , Hon’ble Mr. Justice
Amit Mahajan, Hon’ble Mr. Justice Anish Da yal and Hon’ble Mr. Justice Amit Sharma.
20. Fresh Criminal Misc. Main Cases shall be equally distributed amon gst Hon’ble Mr. Justice Yogesh
Khanna, Hon’ble Mr. Justice Anup Jairam Bhambhani , Hon’ble Mr. Justice Jasmeet Singh, Hon’ble
Mr. Justice Dinesh Kumar Sharma, Hon’ble Ms. Ju stice Swarana Kanta Sharma , Hon’ble Mr. Justice
Amit Mahajan, Hon’ble Mr. Justice Anish Da yal and Hon’ble Mr. Justice Amit Sharma.
21. Fresh cases relating to sexual harassment shall be distributed category wise according to roster.
22. All the pending Bail Applications filed upto 24. 11.2022 shall be equally distributed amongst all
Single Bench Judges sitting on the Criminal Roster.
23. All Criminal Appeals of the year 2022 pending on the Board of Hon’ble Mr. Justice Sudhir Kumar
Jain shall stand transferred to the Court of Hon’ble Mr. Justice Jasmeet Singh.
24. All Criminal Misc. Main cases of the year 2022 pend ing on the Board of Hon’ ble Mr. Justice Sudhir
Kumar Jain shall stand transferred to the Court of Hon’ble Mr. Justice Dinesh Kumar Sharma.
25. All Criminal Revision Petitions of the year 2022 pending on the Board of Hon’ble Mr. Justice
Sudhir Kumar Jain shall stand transferred to th e Court of Hon’ble Mr. Justice Amit Sharma.
26. All Writ Petitions (Criminal) of the year 2022 pend ing on the Board of Hon’ble Mr. Justice Sudhir
Kumar Jain shall stand transferred to the Court of Hon’ble Mr. Justice Anup Jairam Bhambhani.
27. All Original Side Matters (inclu ding finals) of the years 2016, 2017 and 2022 pending on the Board
of Hon’ble Ms. Justice Mini Pushkarna shall stand transferred to the Court of Hon’ble Mr. Justice
Prateek Jalan.
28. All Original Side Matters (including finals) of th e year 2019 pending on the Board of Hon’ble Ms.
Justice Mini Pushkarna shall stand transferred to the Court of Hon’ble Mr. Justice Yashwant
Varma.
29. All Original Side Matters (including finals) of th e year 2018 pending on the Board of Hon’ble Ms.
Justice Mini Pushkarna shall stand transferred to the Court of Hon’ble Mr. Justice Sachin Datta.
30. Cases of the convicts/appellants in jail, whose sent ence is about to be completed or have completed
the substantial period of the maximum sentence of the offence charged against them, shall be taken
up on priority basis and every en deavor should be made to disp ose of the same expeditiously.
|
The Delhi High Court's Intellectual Property (IP) Division has had a change in its roster.
With effect from November 28 (Monday), Justices C Hari Shankar, Sanjeev Narula and Amit Bansal will deal with the IP cases.
Earlier, Justices Prathiba M Singh, Navin Chawla and Jyoti Singh were sitting on the IP Division.
Apart from the IP division, rosters of several other judges have also changed.
|
Crl.O.P.No.19916 of 2022
Dated :21.08.2022
Coram:
Crl.O.P.No.19916 of 2022
Sathish ... Petitioner
Vs
The State rep.by
The Inspector of Police,
Kanchi Taluk Police Station,
Kancheepuram District.
Crime No.560 of 2022 ... Respondent
Prayer: Criminal Original Petition is filed under Section 439 of Cr.P.C.,
praying to enlarge the petitioner on bail in connection with the case in
Crime No.560 of 2022 on the file of the respondent.
For Petitioner: Mr.D.R.Arun Kumar
For Respondent: Mr.N.S.Suganthan
Government Advocate (Crl.Side)
The petitioner herein is an accused in a case registered by the
respondent police in Crime No.560 of 2022 for an offence under Section
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.19916 of 2022
399 of I.P.C. He was remanded to judicial custody on 06.08.2022.
2. The present petition is filed seeking bail on the ground that
his father died on 18.08.2022 and he being the only son, he may be granted
bail to perform his last rites and rituals of his father, which is scheduled to
be done on 20.08.2022.
3. Being a holiday, the learned counsel for the petitioner has
moved before the Hon'ble Chief Justice to hear the matter urgently.
Accordingly, the matter is heard today as a special sitting on a public
holiday.
4. The learned Government Advocate (Crl.Side) for the State
took notice and on instructions submitted that the petitioner is having two
previous cases under the NDPS Act and there is threat to his life by the rival
gang. Further, he also submitted that the last rites of the petitioner's father
was performed yesterday (20.08.2022), therefore, on merits the petitioner is
not entitled for bail.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.19916 of 2022
5. Considering the submissions, this Court is of the view that
interim bail for 3 days from today on own bond shall be granted for the
petitioner with police escort to visit his village and complete the post rituals.
He shall report and surrender to the Prison Authorities on 24.08.2022 at
10.30 a.m.
6. Post the bail petition before the regular Court on 25.08.2022.
21.08.2022
Note: Issue order
copy on 21.08.2022
Copy t o:
1.The Judicial Magistrate No.II,
Kancheepuram.
2.The Superintendent of Police,
Kancheepuram District.
3.The Superintendent,
Sub-Jail, Kancheepuram.(by mail)
4.The Inspector of Police,
Kanchi Taluk Police Station,
Kancheepuram District.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.19916 of 2022
rpl
5.The Public Prosecutor,
High Court, Madras.
Crl.O.P.No.19916 of 2022
21.08.2022
https://www.mhc.tn.gov.in/judis
|
The Madras High Court held a special sitting on Sunday and granted interim bail to an accused person for performing the last rites and rituals of his father who passed away on August 18 [Sathish v. State].
Single-judge Justice G Jayachandran, after hearing the parties, granted interim bail for three days to the petitioner on his own bond.
"Considering the submissions, this Court is of the view that interim bail for 3 days from today on own bond shall be granted for the petitioner with police escort to visit his village and complete the post rituals. He shall report and surrender to the prison authorities on August 24, 2022 at 10.30 a.m," the Court directed.
The hearing was held after the counsel for the petitioner Sathish, moved Chief Justice Munishwar Nath Bhandari to hear the matter urgently.
The Chief Justice agreed to list the matter and assigned the case to single-judge Justice Jayachandran.
The petitioner is accused of offence under Section 399 (making preparation to commit dacoity) of the Indian Penal Code and has been in judicial custody since August 6.
When the matter was taken up for hearing on Sunday, the Government Advocate (Crl.Side) for the State took notice and on instructions submitted that the petitioner is having two previous cases under the NDPS Act and there is threat to his life by the rival gang.
Further, he also submitted that the last rites of the petitioner's father was performed on August 20 and, therefore, the petitioner is not entitled to bail on merits as well.
The Court, however, deemed it fit to grant interim bai.
The bench posted the bail plea before the regular Court on August 25.
The petitioner was represented by advocate DR Arun Kumar while the State was represented by NS Suganthan.
|
For the convenience of the exposition, this judgement is divided in the following
parts: -
i) Notification dated 27.10.2021 constituting the Selection Committe e ... 5
ii) Notification dated 01.11.2021 inviting applications for selection of
iii) Letter of the Minister for Higher Education / Pro-Chancellor dated
22.11.2021 recommending reappointment of the Respondent No. 4 .... 7
iv) Notification dated 22.11.2021 withdrawing the Notification dated
01.11.2021 inviting applications from the elligible candidates ............ 9
v) Letter of the Minister for Higher Education / Pro-Chancellor
B. Relevant observations made by the Ld. Single Judge ....................... 11
C. Relevant observations made by the Division Bench in Appeal ........ 13
E. Submissions on behalf of Respondent No. 2 - State of Keral a ......... 21
F. Submissions on behalf of Respondent No. 3 - Kannur University ... 26
G. Submissions on behalf of Respondent No. 4 - Vice-Chancellor ........ 28
H. Submissions on behalf of Respondent No. 1 - Chancellor ………… 29
I. Relevant Provisions of the Kannur University Act, 1996 and the
i) Whether reappointment is permissible in respect of a Tenure Post? .... 46
ii) Whether the outer -age limit stipulated under sub -section (9) of
Section 10 of the Act 1996 is applicable in the case of reappointment
iii) Whether the reappointment of Vice-Chancellor has to follow the same
process as a fresh appointment under Section 10 of the Act 1996? ..... 54
iv) Did the Chancellor abdicate or surrender his statutory power of
" 'Intention of the Legislature' is a common but very slippery phrase, which,
popularly understood, may signify anything from intention embodied in positive
enactment to speculative opinion as to what the Legislature probably would have
meant, although there has been an omission to enact it. In a Court of Law or
Equity, what the Legislature intended to be done or not to be done can only be
legitimately ascertained from that which it has chosen to enact, eit her in express
words or by reasonable and necessary implication ."
[Lord Watson in Salomon v. Saloman & Co., (1897) AC 22, 38]
1. We are tempted to preface our judgment with the aforesaid observations of
Lord Watson in Soloman (supra) , as we need to keep in mind the principle of law
as explained therein for the purpose of interpretation of Section 10( 9) and Section
10(10) respectively of the Kannur University Act, 1996 (for short, “the Act
1996 ”). In other words, the object or the intention behind enacting the two
provisions referred to above.
2. This appeal is at the instance of two unsuccessful original writ petitioners
before the High Court. The appellant No. 1 herein in his capacity as the elected
member of the Senate of Kannur University and the appellant No. 2 herein in his
capacity as the member of the Academic Council of the said University together
questioned the legality and validity of reappointment of the respondent No. 4
herein, namely, Dr. Gopinath Ravindran as the Vice -Chancellor of the Kannur
University by filing Writ Petition (C) No. 26975 of 2021 in the High Court of
Kerala , primarily on the ground that the respondent No. 4 was not eligible for
reappointment as the Vice -Chancellor of the Kannur University. The writ
application referred to above came to be rejected by the learned Single Judge of
the High Court vide the judgment and order dated 15.12.202 1. The judgment
rendered by the learned Single Judge of the High Court was challenged before a
Division Bench of the High Court by filing the Writ Appeal No. 1698 of 2021.
The challenge in the appeal also failed . The Division bench dismissed the appeal
vide the judgment and order dated 23.02.2022 thereby affirming the judgment and
order passed by the learned Single Judge declining to issue a writ of Quo
Warranto.
3. The facts are jejune. The respondent No. 4 herein was appointed as the
Vice -Chancellor of the Kannur University vide the Notification dated 24.11.2017
duly issued by the Chancellor of the Kannur University. The tenure of the
respondent No. 4 as the Vice -Chancellor was for a period of four years. As the
tenure of the respondent No. 4 as the Vice -Chancellor of the University was
coming to an end , the Chancellor initiated steps for selection and appointment of
a new Vice -Chancel lor in the said University. The first step in the said process
was the issue of a Notification dated 27.10.2021 constituting a Selection
Committee of three members. The Notification dated 27.10.2021 reads thus:
i) Notification dated 27.10. 2021 constituting the Selection Committee
“No.G53 1283/2021 Governors Secretariat
Kerala Raj Bhavan
Thiruvananthapuram
27th October 2021
In exercise of the powers conferred under Section 10, read with sub
sections (1)(2) and (3) of the Kannur University Act, 1996, the
Chancellor of the University is pleased to constitute a Selection
Committee comprising of the following members to make
recommendation (s) towards the selection and appointment of a new
Vice Chancellor in the said University.
1. Dr. B. Ekbal - (Nominee of the University Senate)
(Former Vice Chancellor, University of Kerala and former Member,
State Planning Board)
2. Prof. B. Thimme Gowda - (Nominee of the University Grants
Commission)
Vice Chairman, Karnataka State Higher Education Council
(Former Vice Chancellor, Bangalore University & Karnataka State
Rural Development and Panchayat Raj University
3. Prof. VK Ramachandran (Nominee of the Chancellor)
Vice Chairperson, Kerala State Planning Board
(Former HoD, Economic Analysis Unit, Indian Statistical Institute,
Bengaluru)
I, Prof. VK Ramachandran shall be the Convener of the Committee
and the Committee shall tender its recommendation within three
months from the date of this order as laid down in sub section (4),
Section 10 of the Kannur University Act, 1996.
By Order of the Governor/Chancellor
(Dr. Devendra Kumar Dhodawat, IAS)
Principal Secretary to Governor/Chancellor ”
4. Thereafter , Notification dated 01.11.2021 was issued by the Additional
Chief Secretary, High er Education, State of Kerala inviting applications from
eligible candidates. The Notification dated 01.11.2021 reads thus:
ii) Notification dated 01.11. 2021 inviting applications for selection of Vice -Cha ncellor
“B2/88/2021/H. E DN Dated: 1.11.2021
In exercise of the powers conferred by Section 19(1) (2) and (3) of the
Kannur University Act,1996, the Chancellor, Kannur University has
constituted a Selection Committee to make recommendations for the
appointment of a new Vice Chancellor, in the Kannur University.
Applications are invited by the Selection Committee for the selection
of Vice Chancellor, Kannur University from eligible candidates. The
qualification and experience are as prescribed in Clause 7.3(i) of the
UGC notification dated 18.7.2018. Applicants should not have
completed sixty years of age as on the date of notification, as provided
in section 10 of Kannur University Act, 1996.
Applications in hard copy and soft copy (by e mail only) with bio data,
proof of experience, qualifications etc., in the attached format should
reach the Additional Chief Secretary to Government, Higher
Education Department, Government Secretariat, Annexe II. Fourth
Floor, Thiruvananthapuram - 695001 and
highereducationbdepartment@gmail.com on or before 5 PM on
30.11.2021.
Additional Chief Secretary
High er Education , Environment
Archaeology, Archives & Museum Departments. ”
5. It appears that in the meantime, the Minister for High er Education and
Social Justice in h er capacity as the Pro -Chancellor addressed a letter to the
Governor/Chancellor dated 22.11.2021 recommending reappointment of the
respondent No. 4 herein for a second term as the Vice -Chancellor of the
University. The letter dated 22.11.2021 reads thus:
iii) Letter of Pro -Cha ncellor dated 22.11. 2021 re comme nding re -appointment of the Re spondent No. 4
Honourable Governor,
Kind attention of Honourable Governor is invited to the fact that the
term of office of Ex. Vice Chancellor of Kannur University is ending
on November 23,2021 Notification for the selection of new Vice
Chancellor was issued on November 1 .2021.
Dr. Gopinath Raveendran is currently holding the post of Vice
Chancellor. He is an eminent academician and able administrator. He
has ushered the University to greater heights. A learned professor
with an excellent academic record, he was Professor of History of
Jamia Millia Islamia, Delhi. He has also been Academic Visitor, Dept.
of Social Police, London School of Economics and Political Science
and has administrative experience as Honorary Director, Nelson
Mandela Centre for Peace and Conflict Resolution, Jamia Millia
Islamia and as Member secretary, ICHR. He has indeed been an asset
to Kannur University, an institution still in its infancy.
The remarkable achievements of the university in academic rating is
the result of the hard work put in by the faculty and staff of the
University under the able leadership of Dr. Gopinath Raveendran.
The NAAC has upgraded the status of the University from B to B. He
was instrumental in digitizing the University by introducing Digital
Document Filling System (DDFS) and enthusiastically directed the
University to amend its status in tune with UGC Regulations, 2018.
He also initiated steps for starting a separate Research Directorate
with the aim of improving research standards in the University.
During his tenure, the University signed several MOUs with reputed
national and international organization. Under his stewardship , the
University also started a Business incubation Centre and established
an Institution's Innovation Council to encourage the innovative
potential of researchers and students.
Kannur University under his able leadership, rose to eminence as one
of the premier university in the country. It is therefore my considered
opinion that Dr. Gopinath Raveendran may be allowed to continue for
another term as Vice Chancellor. It s continuation will immensely
benefit Kannur University Section 10 (10) of Kannur University Act
provides for the reappointment of incumbent Vice Chancellor for a
second t erm and· does not stipulate any restriction on ag e.
I request your Excellency to be pleased to cancel the notification dated
27.10.20 appointing a Search -cum-Selection committee for identifying
the person to be appointed as Vice Chancellor. I also request Your
Excellency's pleasure in cancelling the notification dated 1.11. 2021
and in re -appointing Dr. Gopinath Raveendran for a continuous
second term as Vice Chancellor of Kannur University. Thank you.
Sincerely,
Dr. R. Bindu
Minister for Higher Education and
Social Justice and Pro -Chancellor
Sri Arif Mohammed Khan
Excellency The Governor of Kerala Bhavan ”
6. It is pertinent to note that on the very same day and date i.e., 22.11.2021,
the Additional Chief Secretary to the Government, recalled the Notification dated
01.11.2021 referred to above. The Notification dated 22.11.2021 recalling the
earlier Notification dated 01.11.2021 inviting application s from the eligible
candidates reads thus:
iv) Notification dated 22.11. 2021 re calling the Notifi cation dated 01. 11.20 21 inviting applications from the eligible candidates
The notification no. B2/88/2021/H.EDN dated 0 1/11/2021 inviting
application for the selection of Vice -Chancellor to Kannur University
is withdrawn.
Additional Chief Secretary to Government.
Higher Education Department. ”
7. On 22.11.2021, the Pro -Chancellor/ Minister for Higher Education
addressed one another letter to the Chancellor which reads thus:
v) Letter of Pro -Cha ncellor proposing re -appoint ment of Vice -Chancellor
Honourable Chancellor,
The term of Dr. Gopinath Raveendran, Vice Chancellor of Kannur
University will cease on 23 November 2021.
As per D. O. No. GS3 -1283/2021 dated 22.11.2021 from the office of
your Excellency, steps have been taken to withdraw notification
inviting applications to select a Vice Chancellor for Kannur
University. As Pro Chancellor of Kannur University. I consider it my
privilege to propose the name of Dr. Gopinath Raveendran, the
present incumbent Vice Chancellor to be re -appointed as Vice
Chancellor of Kannur University for a second continuous term
beginning from 24.11.2021.
Thank you,
Sincerely,
Dr. R. Bindu
Pro-Chancellor, Kannur University
Minister for High er Education
Sri Arif Mohammed Khan
His Excellency , The Governor of Kerala
Chancellor, Kannur University.”
8. Ultimately the final notification came to be issued dated 23.11.2021 by
order of the Governor/Chancellor re appointing the respondent No. 4 herein as
Vice -Chancellor of the Kannur University for a period of four years w.e.f.
24.11.2021. The Notification dated 23. 01.2021 reads thus:
vi) Re-appoint ment Notifi cation dated 2 3.11.2 021
No.GS3.1283/2021(3)
Dated: Thiruvananthapuram 23rd
November, 2021
In exercise of the powers conferred under the Kannur University Act,
1996 and the UGC Regulations, 2018, the Chancellor of the
University is pleased to re -appoint Dr. Gopinath Ravindran
(Professor, Department of History, Jamia Millia Islamia, New Delhi)
as the Vice Chancellor of the Kannur University, for a period of four
years, with effect from 24th November, 2021.
By order of the Government/Chancellor
(Dr. Davendra Kumar Dhodawat, IAS)
Principal Secretary to Government/Chancellor. ”
9. The above referred Notification dated 23.11.2021 was made the subject
matter of challenge by the appellant s herein before a learned Single Judge of the
High Court. The challenge to the notification referred to above, re appointing the
respondent No. 4 as the Vice -Chancel lor for a further term of four years was
essentially on two grounds. First, in view of Section 10(9) of the Act 1996 , no
person who is more than sixty years of age can be appointed as Vice -Chancellor .
In other words, the outer age limit for being appointed as the Vice -Chancellor of
the University being sixty years, the respondent No. 4 could not have been
reappointed as the Vice -Chancellor having crossed the age of sixty years.
Secondly, even for the purpose of reappointment , the entire procedure necessary
for being appointed as the Vice -Chancellor for the first time should have been
undertaken. In other words, the procedure prescribed in Section 10 of the Act
1996 ought to have been followed even at the time of reappointment .
10. As noted above, the challenge before the learned Single Judge failed. The
writ petition came to be dismissed by the learned Single Judge holding as under:
“6. From the perusal of the provisions of Section 10, it is evident
that Vice -Chancellor can be appointed by Chancellor on the
recommendation of the committee appointed by him which consists of
three members with one elected by Senate, another by Chairman of
the University Grants Commission and third by the Chancellor. The
chancellor shall appoint one of the members of the committee to his
convenience and committee shall make its recommendation within a
period of three months of appointment. University is not p recluded to
unanimously recommend the name of only one person and in that
process, Chancellor shall appoint that person to be Vice - Chancellor,
but, it may submit a panel of three names within the period and the
Vice-Chancellor shall be appointed from among the person s in the
panel. The aforementioned procedure at the time of the initial
appointment, for a period of four years, in 2017 was followed. The
first term was expiring after the completion of four years and it is in
that background, notice Ext.P2 was published but the Secretary of
Department of Higher Education notified of withdrawal with
immediate effect, for as per provisions of Sub section (10) , Vice -
Chancellor can be re -appointed, but the term is restricted to two (2).
It is now to be seen as to whether on the basis of statutory procedure
provided in the Act ibid and on analysis of judgments cited, can this
Court interfere in the process of appointment or not.
xxx xxx xxx
10. The expression 'appointment' and 're -appointment' have
different connotation; for undergoing the re -appointment the
qualifications are prescribed under Clause 7.3 of the UGC
regulations ibid and there is no age bar and for reappointment,
criteria of age wo uld not be applicable. No doubt, for appointment,
the entire procedure prescribed under Section 10 is to be followed. At
the time of the initial appointment, in the year 2007, all the parameters
were considered for appointment as per the procedure laid dow n
therein but for re -appointment as per proviso to sub -Section (10) there
is no requirement for undertaking the task of constitution of a
Selection Committee as was done during the initial appointment. As
per the pleading and submissions, there has not bee n any incident or
lack of integrity, transparency as provided in the UGC regulations.
Considering the provisions of applicable laws to my mind, notice
Ext.P2 was withdrawn vide Ext.P3 on 22.11.2021 for the simple
reason the party respondent i .e., the 4th respondent was not
disqualified at the time of initial appointment. It cannot be said that
there was any violation of the statutory provisions for reconsideration
for the purpose of re -appointment, thus, in such circumstances, writ
of quo -warranto cannot be issued .”
(Emphasis supplied)
11. The writ appeal filed by the appellants herein before the Division Bench of
the High Court also failed. The Division Bench in its impugned judgment held as
under:
“20. On an analysis of the said provision, it is clear that the Vice -
Chance llor sha ll be appointed by the Chance llor on the
recommendation of a committee appointed by him for the purpose.
In the case on hand, the appointment of the 4th respondent in the
year 2017 for a period of 4 years in contemplation of sub -Section 10
of Section 10, and in contemplation of law is admitted. It is also an
·admitted fact that the eligibility and qualification of the 4th
respondent at the initial stage of appointment is undoubted. It is also
quite clear and evident from the provisions of Section 10 that a clear
cut procedure and modalities are prescribed in the said provision to
select the Vice Chancellor.
21. One of the important aspects that is to be noted is that as per sub -
Section 9 of Section 10, it is clearly specified that no person who is
more than sixty years of age shall be appointed as Vice -Chancellor.
But, when it comes to sub -Section 10 of Section 10, it is made explicit
that the Vice-Chancellor shall hold office for a term of four years
from the date on which he enters upon his office and shall be eligible
for re -appointment. However, interdiction is made as per the proviso
thereto, by making it clear that, a person shall not be appointed as
Vice Chancellor for more than 2 terms . It is significant to note that
sub-Section 10 of Section 10 of Act, 1996 is conjunctive in nature and
not distinctive. Which thus means, the statute itself has made a clear
cut procedure with respect to the re -appointment and has made it
clear that the Vice Chancellor who holds the office for a term of 4
years consequent to the initial appointment, shall be eligible for re -
appointment.
22. No doubt, if there is any manner of shortcomings on the part of
the Vice Chancellor initially appointed, so as to affect the academic
excellence, moral issues or otherwise to have any adverse
consequence to hold the post of Vice Chancellor, it would be
different. But, this is a case where the appellants have not raised any
sort of such allegations against the 4th respondent. Merely because a
notification was issued to conduct a selection, that by itself will not
dissuade the Government/Chancellor to recommend and re -appoint
the existing Vice Chancellor. ”
xxx xxx xxx
30. Therefore, after assimilating the factual and legal situations and
understanding the issues, we are of the considered opinion that in the
matter of re -appointment, the age bar prescribed under Section 10(9)
for appointment of the Vice Chancellor would not come into play,
because the Vice Chancellor who has appointed before attaining the
age of 60 years, is entitled to continue for a term of four years and
shall be eligible for re -appointment.
31. Taking into account all the above intrinsic aspects with regard to
the appointment of the Vice Chancellor, eligibility, qualification etc.,
and also the relevant inputs of the UGC Regulations, 2018, we have
no hesitation to hold that the learned single Judge was right in
dismissing the writ petition. Even though various contentions were
advanced and several judgments were cited by the respective Senior
Counsel in regard to the intricacies of issuance of a writ of quo
warranto, we are not inclined to go into that question, since we find
that the re- appointment of the 4th respondent was made in
accordance with law, and therefore he can never be said to be an
usurper to the post. Having rendered the findings as above, the
arguments advanced strenuously by the learned Senior Counsel Sri.
George Poonthottam, relying upon the term 'eligibility', contained
under Section 10(10) of the Act 1996 in the matter of making
reappoint ment by referring to various legal dictionaries, we do not
find much force in the same.
32. Before we part with the judgment, it is only appropriate that the
Press release issued by the office of the Chancellor (Honourable
Governor) of the University is discussed. On a perusal of Annexure
A2 Press Release dated 03.02.2022, it is clear that right from the
publication of selection notification dated 01.11.2021 issued on
behalf of the selection committee uptill the reappointment are
narrated.
33. Be that as it may, it is clearly specified in the Press Release that
on 23rd November, 2021, Kerala Raj Bhavan issued a notification
re-appointing the 4th respondent as the Vice Chancellor of the
Kannur University. Other aspects are also dealt with in the Press
Release, which we do not propose to traverse through, being
unnecessary.
34. Taking into account the factual and legal circumstances
deliberated above, we are of the clear and considered opinion that
the appellants have not made out any case of jurisdictional error or
other legal infirmities susceptible to be interfered with in the
judgment of the learned single Judge. ”
(Emphasis supplied)
12. In such circumstances referred to above, the appellants (original writ
petitioners) are here before this Court with the present appeal.
13. Mr. Dama Seshadri Naidu and Mr. George Poonthottam, the le arned Senior
Counsel appearing for the appellants made the following submissions: -
a. The impugned judgment proceeds on an erroneous assumption that once
an appointment to the post of Vice -Chancellor is made through proper
channel, the reappointment of the same incumbent to such office upon
expiry of the first term can be made bypassing the original procedure
prescribed, including the constitution of a Search -cum-Selection
Committee as mandated by the University Grants Commission
(Minimum Qualifications for Appointment of Teachers and other
Academic Staff in Universities and Colleges and Measures for the
Maintenance of Standards in Higher Education ) Regulations, 2018 (for
short, ‘the UGC Regulations’ ). While doing so the High Court has
assumed that there is a distinction in procedure for ‘appointment’ and
‘reappointment ’, whereas there is no such distinction recognised under
the service law jurisprudence.
b. If the impugned judgment is to be upheld , then for reappointment as a
Vice -Chancellor under the proviso to Section 10(10) of the Kannur
University Act, there is no requirement for undertaking the exercise of
forming and consulting the Selection Committee as mandated under the
UGC Regulations and as was done during the initial appointment. Going
by this rationale, a person can be re appointed, even though there may be
better qualified and more deserving candidates eligible and qualified to
hold the office. This obviously is not the letter and spirit of the Kannur
University Act and the UGC Regulations , which aims at providing the
highest standards of education. In such circumstances, it is essential to
follow the entire selection process, even in cases of reappointment .
c. On the date of reappointment i.e., 24.11.2021, the respondent No. 4 had
crossed the age of 60 years which is the outer age limit for being
appointed to the post of Vice -Chancellor under Section 10(9) of the
Kannur University Act. Therefore, the respondent No. 4 was not eligible
for being re appointed as the Vice -Chancellor in 2021.
d. The notification dated 01.11.2021 was withdrawn only with a view to
overcome the hurdle of the age limit, and thereby, bypass the prescribed
procedure for appointment.
e. Section 10(10) of the Kannur University Act is very specific and clear.
The language of the provision unequivocally spells out the legislative
intent that if a person is once given an appointment, it would only enable
him an opportunity to be considered for fresh appointment for one more
term. The express language of the provision does not grant a candidate,
who is already appointed as the Vice -Chancellor, to evade the
mandatory eligibility criteria and to be appointed as the Vice -
Chancellor again. The distinction drawn by the High Court between the
terms “ appointment ” and “reappointment ” relying on Section 10(10) is
totally perve rse.
f. The High Court erred in proceeding on the premise that since the
respondent No. 4 was eligible for appointment on the first occasion, he
was also entitled for reappointment and thus the entire process for
appointment need not be undertaken afresh. This appears to be the logic
behind the withdrawal of Notifications calling for fresh applications.
g. The High Court ought to have appreciated that the constitution of the
Select Committee and preparation by the panel is prerequisite for the
appointment of V ice-Chancellor of University. If the contention that the
UGC Regulation s do not impose any age restriction for appointment as
the Vice -Chancellor is accepted, then the UGC Regulations do not
provi de for the reappointment of the Vice -Chancellor as well.
h. Section 10(10) of the Kannur University Act contemplates
reappointment and not an extension of the term of the Vice -Chancellor.
For this reason, the notification dated 01.11.2021 was issued calling for
applications from eligible candidates for the post of Vice -Chancellor.
The said notification stipulated that the candidate must satisfy the
eligibility criteria mentioned in Clause 7.3(i) of the UGC Regulations ,
and should not be more than 60 years of age on the date of issuing the
notification. When appointment is made by virtue of Section 10(10), the
law does not provide an exemption to be followed in the case of an
incumbent who is holding the post of Vice -Chancellor.
i. The reliance placed by the High Court on the decisions of the Rajasthan
High Court and Jammu & Kashmir High Court, in its impugned
judgment is not correct as the two High Courts had failed to take into
consideration the UGC Regulations which provide s for the method and
procedure for appointment of the Vice -Chancellor. The appointment of
the Vice -Chancellor can only be done in accordance with the procedure
as laid therein and the central legislation fully occupies the issue.
j. The reappointment was based on the request of the State Government
and not on any independent evaluation. Such a request is wholly
unwarranted as the State Government has no say in the appointment or
reappointment of the Vice -Chancellor.
k. The initial appointment of the respondent No. 4 as the Vice -Chancellor
was also contrary to the provisions of the UGC Regulations 2010 more
particularly Clause 7.3 , which stipulates that the appointment shall be
made after following the due process of identification of 3 to 5 names
by the Search -cum-Selection Committee. However, the minutes of the
Search -cum-Selection Committee dated 20.11.2017 indicates that only
one single name, i.e., the name of respondent No. 4, was recommended.
Hence, the initial appoi ntment itself being void ab initio , the
reappointment is also void .
14. With a view to fortify the aforesaid submissions the learned Senior Counsel
placed reliance on the following decisions:
(i) S.P. Gupta v. Union of India (First Judges Case), 1981 Supp
(ii) State of West Bengal v. Anindya Sundar Das, 2022 SCC OnLine
(iii) State of Himachal Pradesh v. Kailash Chand Mahajan, 1992
Supp (2) SCC 351 ,
(iv) Gambh irdan K. Ga dhvi v. State of Gujarat, (2022) 5 SCC 179 ,
(v) Professor (Dr.) Sreejith P .S. v. Dr. Rajasree M .S., 2022 SCC
OnLine SC 1473 ,
(vi) Dr. L .P. Agarwal v. Union of India and Others , (1992) 3 SCC
(vii) Dept. of Commerce v. US House of Representatives, 1999 SCC
15. In such circumstances referred to above, the learned Senior Counsel prayed
that there being merit in the appeal, the same may be allowed and the Notification
reappointing the respondent No. 4 as the Vice -Chancellor of the Kannur
University be set aside.
16. Mr. K.K. Venugopal , the learned Senior Counsel appearing for the State of
Kerala made the following submissions:
a. The seminal issue which arises in the present case is the conflict
between the provisions of the UGC Regulations , which is a subordinate
legislation made under Section 26(1)(e) and (g) respectively of the
University Grants Commission Act, 1956 (‘ UGC Act ’), and the State
laws made under Entry 25 of List III dealing with education.
b. The UGC Regulations make express provisions for the manner in which
a selection has to be made for the appointment of a Vice -Chancellor
through a Search -cum-Selection Committee consisting of persons of
eminence in the sphere of higher education and who are not connected
in any manner with the University concerned or its colleges. The
Visitor/Chancellor shall appoint the Vice -Chancellor out of the Panel
of three -five names recommended by the Search -cum-Selection
Committee.
c. The different state laws made under Entry 25 of List III dealing with
the same subject have provisions which give a dominant status to the
State Governments, and do not provide for the identical procedure
provided for by the UGC Regulations.
d. It has been held recently, in a judgment of this Court in Gambhirdan
K. Gadhvi (supra) (2 Judges) which is followed in Anindya Sundar Das
(supra) (2 Judges), that the UGC Regulations form a part of the UGC
Act, 1956 for the reason that it requires that the regulations made under
the Act shall be laid before the Parliament. Even though Section 26 of
the UGC Act does not provide for these regulations being part of the
Act, nevertheless the Court h eld that the mere fact of laying would
result in the regulation s being made part of the Act.
e. A catena of judgments of this Court have held to the same effect. What
has been missed in holding so is that the subordinate legislation,
whether of rules or regulations, could be read as part of the Act, but, for
different purposes. The real effect of this statement of the law is that
Article 254 of the Constitution would have to be read as – where a law
made by Par liament as well as the regulations or rules made under any
Central Act is repugnant to the provisions of a law made by the
legislature of a State, the law made by Parliament as well as the
regulations or rules made under any Central Act will prevail. The
provision will now mean that the law made by Parliament, or the
regulations or rules made under any Central Act, if repugnant to the law
made by the legislature of a State, then the law made by the State, to the
extent of the repugnancy, shall be void.
f. By reading as aforesaid , the consequences would be far reaching. For
this purpose, one should look at the very nature and source of making
regulations or rules under the Central Act. The Government of India
(Allocation of Business) Rules, 1961 would allocate the particular
subject of the Act to a particular minister, who would then have to
decide on wha t the rule should be. It is possible, as in the case of the
UGC Act, that many of the provisions made in the rules or regulations
may not find a place in the body of the Act, and, the only provision,
which could be possibly invoked would be the main provision of sub -
section (1) of the rule making section, in which it would be stated that
the regulations or rules may be made for the purposes of the Act. In the
case of the UGC Act, the regulation making power is conferred upon
the UGC, a statutory body acting under the Government, and not on the
Government itself.
g. The result is that a vast unbridled arbitrary power is vested in the
executive where no definite guidelines are provided for in any particular
section of the Act, and where the Act is totally silent on the aspects that
are covered by the legislations. Such an arbitrary unguided power by
itself would violate Article 14 of the Constitution of India, and the
regulation making power would have to be struck down.
h. Additionally, the procedure and method of making regulations or rules
which have to be laid before the House is contained in Rule 235 of “the
Rules of Procedure and Conduct of Business in Lok Sabha”, which
states: “The Speaker shall, in consultation with the Leader of the House,
fix a day or days or part of a day as the Speaker may think fit for the
consideration and passing of an amendment to such regulation, rule,
sub-rule, bye -law etc., of which notice may be given by a member:”
i. In ‘Parliamentary Procedure: Law Privileges Practice and Precedents’
by Subhash C. Kashyap, Third Edition Page 596, it is stated that where
a statute provides that rules shall be laid before Parliament and shall be
subject to a modification made by Parliament, if a member gives a
notice for modification of the Rules, the Government is bound to find
time for discussion of the motion. The motion for modification contains
a recommendation to the Rajya Sabha for concurrence, and the effect
of the passing of the motion by both the Houses is that the Government
is bound to amend the rules accordingly.
j. It has been held in the judgment in Gambhirdan K. Gadhvi (supra) that
the UGC regulations, though not so stated in the UGC Act, are part of
the UGC Act, and hence, would prevail over the repugnant sections of
the State Act, which would be rendered void to the extent of the
repugnancy.
k. A series of judgments of this Court state that subordinate legislation
becomes a part of the Act, even though the section itself does not say
so. These include State of U.P. v. Babu Ram Upadhya , (1961) 2 SCR
679, Express Newspaper (P) Ltd. v. Union of India , 1959 SCR 12,
U.P. Power Corpn. Ltd. v. NTPC Ltd. , (2009) 6 SCC 235 , Udai Singh
Dagar v. Union of India , (2007) 10 SCC 306 , and State of T.N. v. Hind
Stone , (1981) 2 SCC 205.
l. On the other hand, there is a line of judgments which states that unless
the Act provides that the rules be deemed as enacted in the Act, a
provision of the rule cannot be read as a part of the Act. This includes
Hotel Balaji v. State of A.P., 1993 Supp (4) SCC 536 , Yogendra
Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 , and State of
Mysore v. H. Sanjeeviah, (1967) 2 SCR 361.
m. None among these aspects which are crucial to the interpretation of
Article 254 of the Constitution have been considered anywhere in the
judgments on this issue, of whether the UGC Regulations are equivalent
to the laws made by Parliament or not. This being so, the judgments
being sub silentio, would not have any binding precedent.
n. The judgments of this Court relating to the UGC Act in Gambhirdan
K. Gadhvi (supra) and Anindya Sundar Das (supra) are sub silentio and
would not have any binding precedent, as great violence is being done
to the Constitution, far beyond the intention of the founding fathers of
the Constitution.
The reliance was placed on the decisions of this Court in Municipal
Corpn. of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 , para 12 and State
of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , para 41 .
17. Mr. Shailesh Madiyal , the learned counsel appearing for the Kannur
University made the following submissions:
a. The High Court has rightly observed that the age bar prescribed under
Section 10(9) for appointment of the Vice -Chancellor would not be
applicable at the time of reappointment as the Vice -Chancellor who was
appointed before attaining the age of 60 years, is entitled to continue for
a term of four years and shall be eligible for reappointment under Section
10(10) of the Act 1996 .
b. Section 10(9) of the Act 1996 , clearly specifies that no person who is
more than sixty years of age shall be appointed as Vice -Chancellor. But,
when it comes to Section 10(10) of the Act 1996 , it states that the Vice-
Chancellor shall hold office for a term of four years from the date on
which he enters upon his office and shall be eligible for reappointment .
However, the proviso makes it clear that a person shall not be appointed
as Vice -Chancellor for more than 2 terms. Section 10(10) of the Act
should be read conjunctively and not distinctively. The statute itself has
provided for the procedure with respect to the reappointment and has
made it clear that the Vice -Chancellor holding office shall be eligible for
reappointment . The other eligibility criteria prescribed do not, therefore
apply to ' reappointment ' under Section 10(10). Hence, the reappointment
is not to be considered as a fresh appointment upon completion of the
first term.
c. The age limit has been fixed even in the matter of reappointment s in the
Mahatma Gandhi University Act, 1985; Kerala Agricultural University
Act, 1971; APJ Abdul Kalam Technological University Act, 2015; and
the Thunchath Ezhuthachan Malayalam University Act, 2013. Therefore,
the statute would explicitly specify the age limit in case of
reappointment s and when the statue does not provide for it, the age limit
prescribed for appointment cannot be applied even in the case of
reappointment s.
18. Mr. Basavaprabhu S. Patil , the learned Senior Counsel appearing for the
respondent No. 4 made the following submissions:
a. The questions of law, as formulated by the appellants are procedural in
nature.
b. This Court in Anindya Sundar Das (supra) on similar facts concerning
reappointment of Vice -Chancellor of Calcutta University, clarified that
reappointment does not entail the same procedural formalities as
appointment and there is a clear distinction in law between the two.
c. The High Court proceeded on the correct premise that Sec tion 10(10)
read with Clause 7.3 of the UGC Regulation s only prescribes the
procedure for the initial appointment to the post of Vice -Chancellor . The
respondent No. 4 at the time of initial appointment fulfilled all the
necessary qualifications required to be appointed, and therefore , even at
the time of reappointment such eligibility conditions stood fulfilled .
Clause 7.3 does not talk of reappointment and thus would not be
applicable to the respondent No. 4 since the reappointment was not a
fresh appointment by any stretch of imagination.
d. Section 10(9) and Sec tion 10(10) respectively are two separate & distinct
provisions and as such should be read conjunctively and not
disjunctively.
e. Neither Sec tion 10(10) nor the UGC Regulation prescribe for any
limitation on reappointment of a person as Vice -Chancellor. Sec tion 10
(9) only specifies that no person shall be ‘appointed’ as Vice - Chancellor
above the age of 60. The term reappointment has, in the wisdom of the
legislature, not been used in the Statute for the express purpose that
Section 10(10) existed and to facilitate the continuation of eligible,
qualified and experienced person on such post.
19. The learned Attorney General for India appearing for the Chancellor made
the following submissions:
a. The plain reading of regulation 7.3, indicates that the selection of Vice -
Chancellor should be through proper scrutiny of merit by a panel of 3 to
5 persons (Search -cum-Selection Committee ) through a public
notification . The Search -cum-Selection Committee should be of person s
of eminence in the sphere of Higher Education and the members should
not be in any manner connected with the university concerned or its
colleges. The Regulations further mandate that one of the member s of
the Search -cum-Selection Committee shall be nominated by the UGC for
selection of Vice -Chancellor of State. In the present case, Regulation No.
7.3 of the UGC Regulations ha s not been complied with at all and
therefore on this ground al one the reappointment of the respondent No.
4 as the Vice -Chancellor should be cancelled by a writ of quo-warranto.
b. The State Government having adopted the UGC Regulations, the
Regulations made by the Parliament under Entry 25 of List III shall
prevail over the State legislation . Once the UGC Regulations presc ribe
the procedure and method for appointment of Vice - Chancellor, the
University has t o comply with the Regulations, which has not been
followed in the present case . Therefore , the High Court erred in not
following the UGC Guidelines .
20. The learned Attorney General invited the attention of this Court to a press
release issued by the Kerala Raj Bhavan dated 03.02.2022 which is at Annexure
P-18 at page 136 :
“03 February 2022
Kannur Varsity: Facts grossly distorted.
Kerala Raj Bhavan strongly refutes the claim in some news reports
that it was on the direction of Hon'ble Governor that the name of Dr.
Gopinath Ravindran was suggested for reappointment as Vice
Chancellor, Kannur University. The truth is that the same was
initiated by the Chief Minister and Higher Education Minister.
To set the record straight, Raj Bhavan would like to place the
chronology of events on the 21st, 22nd and 23rd of November, 2021.
The tenure of the Vice Chancellor, Kannur University was to end on
the 23rd of November. A selection committee had already been
constituted vide notification dated 27.10.2021 to select and appoint a
new Vice Chancellor.
The Additional Chief Secretary, Higher Education Department,
Government of Kerala had also issued a notification dated 01.11.2021
on behalf of the Selection Committee to invite the applications to the
post of the Vice Chancellor.
While this process was on 21 st November 2021, as deputed by Chief
Minister, Shri K.K. Raveendranath, Legal Adviser to Chief Minister,
met Hon'ble Governor at Kerala Raj Bhavan at 11.30 am. He
conveyed to Hon'ble Governor, the Government's desire to reappoint
Dr. Gopinath Ravindran as Vice Chancellor and informed that a
formal request t o this effect from the Minister for Higher Education
was on the way to Raj Bhavan.
Hon'ble Governor, who had a different view on the matter, informed
him that the proposal appeared legally untenable since the due
process of selection was already in motion. On this, the Legal Advisor
informed that the Government has examined the matter in detail and
that the request was legally sound to withstand any legal scrutiny. He
informed that Government had the legal advice and produced some
typed papers.
Hon'ble Governor inquired about its source, as it was unsigned.
The Legal Advisor to the Chief Minister said it was the opinion of the
Advocate General of Kerala and repeated the plea to consider the
request of the Government to reappoint Dr. Gopinath Ravindran as
Vice Chancellor, Kannur University.
At this juncture, Hon'ble Governor said the instant opinion said to be
from Advocate General but without his signature and seal, was of no
significance.
To this, the Legal Advisor said that he will produce the legal opinion
bearing the signature and seal of Advocate General without delay.
As submitted by Legal Advisor to the Chief Minister earlier, a letter
written by Dr. R. Bindu, Minister for Higher Education reached Raj
Bhavan at 01 .30 pm on 22.11.2021. The letter had highlighted Dr.
Gopinath Ravindran's capabilities and desirability to be appointed for
another term as Vice Chancellor.
In this letter, she had clearly requested Hon'ble Chancellor to "be
pleased to cancel the notification dated 27.10.2021 appointing a
Search -Cum -Selection Committee for identifying the person to be
appointed as Vice Chancellor".
She also requested Hon'ble Chancellor's "pleasure in cancelling the
notification dated 01.11.2021 and in re -appointing Dr Gopinath
Ravindran for a continuous second term as Vice Chancellor of Kannur
University".
On 22nd November by 12.10 pm, Shri R. Mohan, Officer on Special
Duty to Chief Minister and the Legal Advisor to Chief Minister had
met the Hon'ble Governor, repeated their request and in support,
submitted the signed legal opinion of the Advocate General w hich was
addressed to the Additional Chief Secretary, Higher Education
Department.
This opinion of the Advocate General substantially endorsed the
request made earlier by Legal Advisor to Chief Minister in the
personal meeting with the Governor and the request of the Higher
Education Minister in her letter.
The eight -page opinion of the Advocate General which is addressed
to the Additional Chief Secretary, Higher Education Department says
that there was no legal bar in reappointing Dr. Gopinath Ravindran
as Vice Chancellor, Kannur University, and that the age bar of 60
years fixed in the Kannur University Act, in as much as the sa me is
contrary to the UGC Regulations, is without the authority of law and
as such, inapplicable. The Advocate General summed up his opinion
as under: -
"1. If the Hon'ble Chancellor accepts this recommendation, the
notification dated 27.10.2021, appointing a Search Committee for
identifying the person to be appointed as Vice Chancellor of the
Kannur University may be withdrawn.
2. Pro -Chancellor may be permitted to submit necessary proposal for
the re-appointment of the present incumbent of the post of Vice -
Chancellor of the Kannur University as Vice Chancellor of the said
University for a further continuous term of four years".
This opinion of the Advocate General was also forwarded separately
to Kerala Raj Bhavan by the Minister for Higher Education on
22.11.2021 itself.
In the light of the legal opinion thus received from the Advocate
General, the file was processed and Hon'ble Governor agreed to
accept the proposal of the Higher Education Minister.
At 04.30 pm, Principal Secretary to Governor wrote to Additional
Chief Secretary, Higher Education, conveying the decision of the
Hon'ble Chancellor "to withdraw the Notification dated 27.10.2021
and subsequent Corrigendum dated 03.11.2021" and "to permit the
State Government to submit necessary proposal for the reappointment
of the present incumbent in the post of Vice Chancellor Kannur
University".
At 10.10 pm on the same day Kerala Raj Bhavan received the next
letter from the Minister for Higher Education, informing that "steps
have been taken to withdraw notification inviting applications" and
that as Pro Chancellor, she was proposing the name of D r. Gopinath
Ravindran, the present incumbent Vice Chancellor to be re -appointed
as Vice Chancellor of Kannur University for a second continuous term
beginning from 24.11.2021.
Accordingly, on 23rd November, 2021, Kerala Raj Bhavan issued
notification reappointing Dr. Gopinath Ravindran as Vice
Chancellor, Kannur University.
Thus, the argument in the news reports that the 'Minister had only
proposed a name in response to the Governor's letter', is far from the
truth, which is clear from the chronology of events (which was also
mentioned in Hon'ble Governor ’s letter to Chief Minister on 08th
December 2021).
In brief, the process of selection of Vice Chancellor, Kannur
University which was set in motion vide Kerala Raj Bhavan
notification dated 27.10.2021 came to an end consequent to the
request from the Minister Higher Education, OSD to Chief Minister
and Leg al Advisor to the Chief Minister duly supported by the legal
opinion of the Advocate General, Kerala, culminated in the
reappointment of Dr. Gopinath Ravindran as Vice Chancellor,
Kannur University. ”
(Emphasis supplied)
21. In such circumstances , the learned Attorney General for India prayed that
the reappointment of the respondent No. 4 as the Vice -Chancellor being contrary
to the UGC guidelines , the same deserves to be s et at naught by issue of writ of
quo warranto.
22. Before adverting to the rival submissions canvassed on either side, we must
look into the relevant provisions of the Kannur University Act as well as the
relevant regulations of the UGC.
23. Section 10 of the Kannur University Act reads thus:
“(1) The Vice-Chancellor shall be appointed by the Chancellor on the
recommendation of a committee appointed by him for the purpose
(hereinafter referred to as the committee).
(2) The committee shall consist of three members, one elected by the
Senate, one nominated by the Chairman of the University Grants
Commission and the third nominated by the Chancellor.
(3) The Chancellor shall appoint one of the members of the committee
to be its convener.
(4) The committee shall make its recommendation within a period of
three months of its appointment or within such further period, not
exceeding one month, as the Chancellor may specify in this behalf.
(5) In case the committee unanimously recommends the name of only
one person, the Chancellor shall appoint that person to be the Vice -
Chancellor.
(6) In the case the committee is unable to recommend a name
unanimously, it may submit a panel of three names to the Chancellor
within the period specified in or under sub -section (4) and the
Chancellor shall appoint one of the persons in the panel to be t he Vice -
Chancellor.
(7) In case the committee fails to make a unanimous recommendation
as provided in sub -section (5) or to submit a panel as provided in sub -
section (6), each member of the committee may submit a panel of three
names to the Chancellor and the Vice -Chancellor shall be appointed
from among the persons mentioned in the panels.
(8) Non -submission of a panel under sub -section (7) by any member
of the committee shall not invalidate the appoint ment of the Vice -
Chancellor .
(9) No person who is more than sixty years of age shall be appointed
as Vice -Chancellor.
(10) The Vice -Chancellor shall, hold office for a term of four years
from the date on which he enters upon his office and shall be eligible
for re-appointment :
Provided that a person shall not be appointed as Vice -Chancellor
for more than two terms.”
24. Section 10 of the Act 1996 referred to above, envisages distinct situations
namely:
(a) Appointment of a Vice -Chancellor by the Chancellor out of a panel of
three names recommended by the search committee constituted by the
State Government;
(b) No person above sixty years of age is eligible to be appointed as a
Vice -Chancellor;
(c) Reappointment in respect of which, the power is vested in the
Chancellor under Section 10(10); and
(d) The proviso attached to sub -section (10) of the Section 10 stipulating
that a person shall not be appoin ted as Vice -Chancellor for more than
two terms.
25. Regulation 7.3 of the UGC Regulations deals with Vice -Chancellors and
reads as follows:
A person possessing the highest level of competence, integrity, morals
and institutional commitment is to be appointed as Vice -Chancellor.
The person to be appointed as a Vice -Chancellor should be a
distinguished academician, with a minimum of ten years’ o f
experience as Professor in a University or ten years’ of experience in
a reputed research and / or academic administrative organisation
with proof of having demonstrated academic leadership.
ii. The selection for the post of Vice -Chancellor should be through
proper identification by a Panel of 3 -5 persons by a Search -cum-
Selection -Committee, through a public notification or nomination or
a talent search process or a combination thereof. The members of such
Search -cum-Selection Committee shall be persons’ of eminence in the
sphere of higher education and shall not be connec ted in any manner
with the University concerned or its colleges. While preparing the
panel, the Search cum -Selection Committee shall give proper
weightage to the academic excellence, exposure to the higher
education system in the country and abroad, and ad equate experience
in academic and administrative governance, to be given in writing
along with the panel to be submitted to the Visitor/Chancellor. One
member of the Search cum Selection Committee shall be nominated by
the Chairman, University Grants Commi ssion, for selection of Vice
Chancellors of State, Private and Deemed to be Universities.
iii. The Visitor/Chancellor shall appoint the Vice Chancellor out of
the Panel of names recommended by the Search -cum-Selection
Committee.
iv. The term of office of the Vice -Chancellor shall form part of the
service period of the incumbent making him/her eligible for all service
related benefits.”
(Emphasis supplied)
26. Few salient features of the Regulation 7.3 of the UGC Regulations referred
to above are thus:
(a) The selection of the Vice -Chancellor should be through proper
identification by a panel of 3 -5 persons by constituting a Search -cum-
Selection Committee through a public notification or nomination or
a talen t search process or a combination of all the four.
(b) The members of the Search -cum-Selection Committee should be
persons of eminence in the field of higher education and they shall
not be connected in any manner with the university concerned or its
colleges.
(c) The Selection Committee for the purpose of preparing the panel shall
give proper weightage to the academic excellence, exposure to the
higher education system in the country and abroad and adequate
experience in academic and administrative governance. The panel
shall place its recommendation before the Chancellor.
(d) One member of the Selection Committee would be nominated by the
Chairman, UGC.
27. Quo warranto is a judicial remedy against an intruder or usurper of an
independent substantive public office or franchise or liberty. The usurper is asked
‘by what authority’ (quo warranto ) he is in such office, franchise, or liberty. A
writ of quo warranto thus poses a question to the holder or occupier of a public
office, and that question is: “Where is your warrant of appointment by which you
are holding this office?” If the answer is not satisfactory, the usurper can be ousted
by this writ.
28. The writ of quo warranto is an ancient Common Law remedy of a
prerogative nature. It was a writ of right used by the Crown against a person
claiming any office, franchise, or liberty to inquire by what authority he was in
the office, franchise of liberty . In case his claim was not well founded or there
was non -use, neglect, misuse, or abuse of the office, he was to be ousted.
29. Quo warranto is a writ that lies against a person who usurps any franchise,
liberty, or office.
In Corpus Juris Secundum , quo warranto is defined thus;
“Quo warranto is a proceeding to determine the right to the exercise
of a franchise or office and to oust the holder if his claim is not well
founded, or if he has forfeited his right.”
Blackstone, states: “The ancient writ of quo warranto was in the nature of a writ
of right for the King against any office, franchise or liberty of the Crown to inquire
by what authority he supported his claim, in order to determine the right.”
30. Quo warranto is a remedy or procedure whereby the State inquires into the
legality of the claim which a party asserts to an office or franchise, and to oust
him from its enjoyment if the claim be not well founded, or to have the same
declared forfeited and recover it, if, having once been rig htfully possessed and
enjoyed; it has become forfeited for mis -user or non -user.
31. In B.R. Kapur v. State of T.N . and Another reported in (2001) 7 SCC 231,
after referring to Halsbury's Laws of England, Words and Phrases and leading
decisions on the point, it was observed that a writ of quo warranto is a writ which
lies against the person who is not entitled to hold an office of public nature and is
only a usurper of the office. Quo warranto is directed to such person who is
required to show by what a uthority he is entitled to hold the office. The challenge
can be made on various grounds, including the ground that the possessor of the
office does not fulfill the required qualifications or suffers from any
disqualification, which debars him to hold such office. It was further stated that
on being called upon to establish valid authority to hold a public office, i f such
person fails to do so, a writ of quo warranto shall be directed against him. It shall
be no defence by the holder of the office that the appointment was made by the
competent authority, who under the law is not answerable to any court for
anything do ne in performance of duties of his office . The question of fulfilling
legal requirements and qualifications necessary to hold a public office w ould be
considered in the proceedings independent of the fact as to who made the
appointment and the manner in which the appointment was made.
32. Any person may challenge the validity of an appointment of a public office,
whether any fundamental or other legal right of his has been infringed or not. But
the court must be satisfied that the person so applying is bona fide and there is a
necessity in public interest to declare judicially that there is a usurpation of public
office. If the application is not bona fide and the applicant is a mere pawn or a
man of straw in the hands of others, he cannot claim the remedy. Though the
applicant may not be an aspirant for the office nor has any interest in appointment,
he can apply as a private relator, or an ordinary citize n.
33. These rival submissions would need to be analyzed. However, before we
enter into a substantive analysis of the submissions, it would be appropriate to
deal with the procedural objection regarding the limits of the writ of quo
warranto.
34. Through a line of cases, this Court has laid out the terms on which the writ
of quo warranto may be exercised. In The University of Mysore and Anr. v. C.D.
Govinda Rao and Anr. , a Constitution Bench of this Court, speaking through
Justice Gajendragadkar (as he then was), held that : (1964) 4 SCR 575
“Broadly stated, the quo warranto proceeding affords a judicial
remed y by which any person , who holds an independent substantive
public office or franchise or liberty, is called upon to show by what
right he holds the said office, franchise or liberty , so that his title to it
may be duly determined , and in case the finding is that the holder of
the office has no title , he would be ousted from that office by judicial
order. In other words, the procedure of quo warranto gives the
judiciary a weapon to control the Executive from making
appointments to public office against law and to protect a citizen from
being deprived of public office to which he has a right. These
proceedings also tend to protect the public from usurpe rs of public
office, who might be allowed to continue either with the connivance of
the Executive or by reason of its apathy. It will, thus, be seen that
before a person can effectively claim a writ of quo warranto, he has
to satisfy the Court that the office in question is a public office and is
held by a usurper without legal authority, and that inevitably would
lead to the enquiry as to whether the appointment of the alleged
usurper has been made in accordance with law or not .
(Emphasis supplied)
35. In High Court of Gujarat and Another v. Gujarat Kishan Mazdoor
Panchayat and Ors. reported in (2003) 4 SCC 712, in his concurring opinion in
a three -Judge Bench, Justice SB Sinha , held that:
“22. The High Court in exercise of its writ jurisdiction in a matter of
this nature is required to determine at the outset as to whether a case
has been made out for issuance of a writ of certiorari or a writ of quo
warranto. The jurisdiction of the High C ourt to issue a writ of quo
warranto is a limited one. While issuing such a writ, the Court merely
makes a public declaration but will not consider the respective impact
on the candidates or other factors which may be relevant for issuance
of a writ of certiorari. (See R.K. Jain v. Union of India [(1993) 4 SCC
119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464] , SCC para 74.)
23. A writ of quo warranto can only be issued when the appointment
is contrary to the statutory rules. (See Mor Modern Coop. Transport
Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana (2002)
36. In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage
Board Employees' Assn . reported in (2006) 11 SCC 731, the limitations of the
writ of quo warranto were elaborated upon by a two -Judge Bench of this Court.
The court observed:
“49. … The jurisdiction of the High Court to issue a writ of quo
warranto is a limited one which can only be issued when the
appointment is contrary to the statutory rules .
xxx xxx xxx
51. It is settled law by a catena of decisions that the court cannot sit
in judgment over the wisdom of the Government in the choice of the
person to be appointed so long as the person chosen possesses the
prescribed qualification and is otherwise eligible for
appointment. This Court in R.K. Jain v. Union of India [(1993) 4 SCC
119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464 ] was pleased to
hold that the evaluation of the comparative merits of the candidates
would not be gone into a public interest litigation and only in a
proceeding initiated by an aggrieved person, may it be open to be
considered. It was also held that in s ervice jurisprudence it is settled
law that it is for the aggrieved person, that is, the non -appointee to
assail the legality or correctness of the action and that a third party
has no locus standi to canvass the legality or correctness of the action.
Further, it was declared that public law declaration would only be
made at the behest of a public -spirited person coming before the court
as a petitioner…”
(Emphasis supplied)
37. In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and Ors.
reported in (2014) 1 SCC 161, another two -Judge Bench of this Court reiterated
that:
“21. … the jurisdiction of the High Court while issuing a writ of quo
warranto is a limited one and can only be issued when the person
holding the public office lacks the eligibility criteria or when the
appointment is contrary to the statutory rules . That apart, the concept
of locus standi which is strictly applicable to service jurisprudence for
the purpose of canvassing the legality or correctness of the action
should not be allowed to have any entry, for such allowance is likely
to exceed the limits of quo warranto which is impermissible. The basic
purpose of a writ of quo warranto is to confer jurisdiction on the
constitutional courts to see that a public office is not held by usurper
without any legal authority.
(Emphasis supplied)
38. More recently, in Bharati Reddy v. State of Karnataka and Others
reported in (2018) 6 SCC 162, a three -Judge Bench of this Court, of which one of
us (Justice D .Y. Chandrachud) was a part, noted the line of precedent clarifying
the remit of the writ of quo warranto .
39. Through these decisions, the Court has settled the position that the writ of
quo warranto can be issued where an appointment has not been made in
accordance with the law. Accordingly , the rival contentions must be analyzed by
dealing with the scheme of the statutory provisions governing the appointment
and reappointment of the V ice-Chancellor .
40. Having heard the learned counsel appearing for the parties and having gone
through the materials on record the following questions of law fall for our
consideration:
(i) Whether reappointment is permissible in respect of a tenure post?
(ii) Whether the outer age limit of sixty years for the appointment of Vice -
Chancellor as stipulated under sub-section (9) of Section 10 of the Act
1996 is to be made applicable even in the case of reappointment of the
Vice -Chancellor for one more term of four years?
(iii) Whether the reappointment of the Vice -Chancellor has to follow the
same process as a fresh appointment by setting up a selection committee
under Section 10(1) of the Act 1996 ?
(iv) Did the Chancellor abdicate or surrender his statutory power of
reappointment of the Vice -Chancellor?
i) Whether reappointment is permissible in respect of a Tenure Post ?
41. It was argued on behalf of the appellants that in the case of a tenure post
such as the post of Vice -Chancellor , there can be no reappointment . In other
words, at the end of the tenure the appointment automatically comes to an end and
there can only be a fresh appointment and not reappointment .
42. In the aforesaid context, it is necessary to understand what is meant by a
“tenure post”. The word “Tenure” is derived from the Latin word tenere which
means “to hold”. The Black’s Law Dictionary defines “tenure” in the context of
a post or office as follows [See: Henry Campbell Black on “Black’s Law
Dictionary”, 1968, 4th Edition Pg. 1639]: -
“TENURE IN OFFICE. Right to perform duties and receive
emoluments thereof. ”
43. This Court in its decision in Dr. L.P. Agarwal (supra) , while examining
what is meant by a “tenure post” held that it is a post where the person appointed
to it is entitled to continue in it till his term is complete unless it is curtailed for
justifiable reasons. The relevant observations read as under: -
“16. …Tenure means a term during which an office is held. It is a
condition of holding the office. Once a person is appointed to a
tenure post, his appointment to the said office begins when he joins
and it comes to an end on the completion of the tenure unless
curtailed on justifiable grounds. Such a person does not
superannuate, he only goes out of the office on completion of his
tenure. …”
44. A similar view as aforesaid was taken by this Court in P. Venugopal v.
Union of India reported in (2008) 5 SCC 1.
45. In another decision of this Court in J.S. Yadav v. State of Uttar Pradesh
and Another reported in (2011) 6 SCC 570 , it was held that a person appointed
to a tenure post only goes out once the tenure is completed. The relevant
observations are reproduced below: -
“17. An employee appointed for a fixed period under the statute is
entitled to continue till the expiry of the tenure and in such a case
there can be no occasion to pass the order of superannuation for the
reason that the tenure comes to an end automaticall y by efflux of
time….”
46. We are not impressed with the submission canvassed on behalf of the
appellants that the post of the Vice -Chancellor being a “tenure post”
reappointment is not permissible. The statute itself has provided for
reappointment with some object in mind . The ordinary meaning that can be
ascribed to the term “ reappointment ” is the act or process of deciding essentially
that someone should continue in a particular job. Ordinarily, the object behind
providing for reappointment is twofold. First is “retention” i.e., where the
incumbent to the office/post during his term is found to be extraordinary and has
established himself or herself to be an asset to the institution , then in such
circumstance, such person is retained with a view to allow him to continue on the
same post for one more term . Secondly, having regard to the natu re of the post
the organization or institution may not be in a position to fill up the post in a time
bound manner and in such circumstances , the provision for reappointment may
enable the organization or institution to relieve itself of the tedium of going
through the entire selection process afresh every time the post become s vacant.
47. In view of the aforesaid, we hold that reappointment is permissible even in
case of a tenure post.
ii) Whether the outer -age limit stipulated under sub -section (9) of Section
10 of the Act 1996 is applicable in case of reappointment of the Vice -
Chancellor ?
48. On a plain reading of sub -section (9) of Section 10 of the Act 1996, it
appears that the person sought to be appointed as a Vice -Chancellor must not be
more than sixty -years of age at the time of appointment i.e., it provides the outer
age limit for appointment. While sub -section (10) of Section 10 of the Act 1996
provides that upon appointment, the term of the V ice-Chancellor would be for
four years and that he shall be eligible for reappointment . The proviso attached to
sub-section (10) stipulates that no person shall be appointed as Vice -Chancellor
for more than two terms.
49. A close reading of the statutory provisions of Section 10 of the Act 1996
would reveal that sub -section (9) deals with a situation prior to or leading upto the
appointment of Vice -Chancellor whereas sub -section (10) contemplates a
situation after the appointment of Vice -Chancellor has been made. This is
discernible from a very fine but pertinent distinction between the language of the
two provisions. Sub -section (9) which provides the outer age limit for
appointment uses the word “ person ”. This connotes tha t the Vice -Chancellor is
yet to be appointed whereas sub -section (10) uses the word “ Vice-Chancellor”
which connotes that it is applicable to the incumbent holding the office of Vice -
Chancellor or simpliciter the Vice -Chancellor after having been appointed.
50. Thus, in our view sub-section (9) of Section 10 of the Act 1996 will apply
only at the stage of appointment of Vice -Chancellor and would have no
application whatsoever when it comes to reappointment of Vice -Chancellor under
sub-section (10). This is reinforced from the words “ shall be eligible for re -
appointment” occurring in sub -section (10) which connotes that the same is an
enabling provision whereby the Vice -Chancellor by virtue of holding his office is
deemed eligible for reappointment irrespective of the other provisions.
51. We are conscious of the fact that, the proviso to sub -section (10) which
provides that the V ice-Chancellor shall not be appointed for more than two terms
also uses the word “ person ” which in our opinion is a deliberate choice. We say
so because the proviso deals with a situation where the Vice -Chancellor has
demitted office by virtue of lapse of his tenure.
52. The aforesaid aspect may be looked at from one another angle . If we were
to hold that the outer age limit provided in sub -section (9) would apply even to
reappointment , then the same would effectively mean that only those persons who
are appointed as Vice -Chancellor at the age of fifty -five or below could be
considered for reappointment . Such an interpretation would result in conditions
being read into sub -section (10) which have not been prescribed by the legislature.
Had the intent of legislature been oth erwise, sub -section (10) or the words “ shall
be eligible for re -appointment” would have been specifically qualified by or made
subject to the words “ sub-section (9) ” or “ provisions of this section ”.
53. If sub -section (9) is interpreted so as to be made applicable even to
reappointment as provid ed in sub -section (10), then the result would be that any
person who is appointed as Vice -Chancellor at the age of fifty -six or more would
not be eligible for reappointment , thereby rendering sub -section (10) and its
proviso completely otiose and meaningless in such cases.
54. This would also severely curtail the scope of the selection committee while
considering candidates for the post of V ice-Chancellor , as the selection committee
in such case would be inclined to consider younger candidates over older and
possibly more qualified and experienced ones who may be more suitable
considering the coveted nature of the post and the duties expected to be
dischar ged. Moreover, it would inhibit a Vice -Chancellor who has already held
office and proven himself to be a valuable asset during his tenure from being
reappointed if he happens to be of more than sixty -years of age . This would
frustrate the very purpose of ‘ reappointment ’ which given the nature of the post
of Vice -Chancellor is all the more important as it is the V ice-Chancellor who is
responsible for the day -to-day functioning as well as the overall performance of
the University, its faculty, students etc.
55. Even otherwise, the interpretation as sought to be placed by the appellants
would lead to a very absurd situation, where a Vice -Chancellor of sixty -one years
age cannot be re appointed to hold the office of Vice -Chancellor , however, at the
same time another person would still be able to hold the office of Vice -Chancellor
at the very same age of sixty -one years only by reason of him being appointed at
the age of fifty -nine years. This appears to be bereft of any logic, more particularly
when sub -section (9) does not say that a person shall hold office of Vice -
Chancellor till he attains the age of sixty years and rather uses the expression “ No
Person who is more than sixty years of age shall be appointed as Vice -
Chancellor” .
56. The doctrine of purposive construction may be taken recourse to for the
purpose of giving full effect to the statutory provisions, and the courts must state
what meaning the statute should bear, rather than rendering the statute a nullity,
as statutes are meant to be operative and not inept. The courts must refrain from
declaring a statute to be unworkable. The r ules of interpretation require that
construction which carries forward the objectives of the statute, protects interest
of the parties and keeps the remedy alive, should be preferred looking into the text
and context of the statute. Construction given by t he court must promote the object
of the statute and serve the purpose for which it has been enacted and not efface
its very purpose. The courts strongly lean against any construction which tends to
reduce a statute to futility. The provision of the statute must be so construed as to
make it effective and operative. The court must take a pragmatic view and must
keep in mind the purpose for which the statute was enacted as the purpose of law
itself provides good guidance to courts as they interpret the true m eaning of the
Act and thus legislative futility must be ruled out. A statute must be construed in
such a manner so as to ensure that the Act itself does not become a dead letter and
the obvious intention of the legislature does not stand defeated unless it leads to a
case of absolute intractability in use. The court must adopt a construction which
suppresses the mischief and advances the remedy and to suppress subtle
inventions and evasions for continuance of the mischief, and pro privato
commodo , and to add force and li fe to the cure and remedy, according to the true
intent of the makers of the Act, pro bono publico . The court must give effect to
the purpose and object of the Act for the reason that legislature is presumed to
have enacted a reasonable statute. (Vide M. Pentiah v. Muddala
Veeramallappa [AIR 1961 SC 1107], S.P. Jain v. Krishna Mohan
Gupta [(1987) 1 SCC 191], RBI v. Peerless General Finance and Investment
Co. Ltd. [(1987) 1 SCC 424] , Tinsukhia Electric Supply Co. Ltd. v. State of
Assam [(1989) 3 SCC 709], SC C p. 754, para 118, UCO Bank v. Rajinder Lal
Capoor [(2008) 5 SCC 257 ] and Grid Corpn. of Orissa Ltd. v. Eastern Metals
and Ferro Alloys [(2011) 11 SCC 334].)
57. Thus , in view of the aforesaid, we hold that the outer age limit of sixty years
provided in sub -section (9) of Section 10 of the Act 1996 will not apply , when it
comes to reappointment under sub -section (10) of Section 10 of the Act 1996.
iii) Whether the reappointment of the Vice -Chancellor has to follow the
same process as a fresh appointment under Section 10 of the Act 1996 ?
58. Reappointment of Vice -Chancellor has been provided under sub-section
(10) of Section 10 of the Act 1996. The proviso to sub -section (10) of the Act
1996 further makes the intention of the legislature to provide for reappointment
more clear. The legislature has not thought fit to prescrib e any particular
procedure or any particular mode or manner o f reappointment . The UGC
Regulations are also silent as regards the reappointment of Vice -Chancellor.
59. The language of sub -section (10) of Section 10 of the Act 1996 is plain and
simple. The provision does not confer right to seek reappointment . There is only
one way of reading the provision , which is, that a Vice -Chancellor once
appointed, subject to the proviso to sub -section (10) of Section 10, is eligible to
be considered for reappointment . What this implies is that an incumbent Vice -
Chancel lor may not have to reapply along with other candidates and compete for
the same position once again. Reappointment essentially means the incumbent
Vice -Chancellor would receive another term of four years if the Chancellor deems
fit without reopening the position for new applications or without constituting a
select committee. “Re” means again, and is freely used as pr efix. It gives colour
of “again” to the verb with which it is placed. “ Reappointment ” is an act or process
of being appointed again.
60. Where the appointment is to be made for the first time or where the same
person is being appointed as a Vice -Chancellor for the second time, but not in
continuation of the first term, the procedure provided under Section 10 of the Act
1996 must be gone thr ough. However, in the case of reappointment immediately
upon the tenure of the first term coming to an end, there is no requirement to in itiate
the entire process of appointment as provided under Section 10 of the Act 1996 .
61. In the aforesaid context, we may refer to a decision of this Court in the case
of Anindya Sunder Das (supra) , authored by one of us Dr. D.Y. Chandrachud,
CJI. In the said case, the High Court at Calcutta had allowed a petition under
Article 226 of the Constitution seeking a writ of quo warranto against the Vice -
Chancellor of Calcutta University. The High Court hel d that the State Government
had no authority to appoint or reappoint the Vice -Chancellor under Section 8 of
the Calcutta University Act, 1979 (for short, “the Act 1979”) or by taking recourse
to the residuary provisions of Section 60 of the Act 1979 . As a consequence, the
order issued by the Special Secretary to the Government of West Bengal
reappointing the incumbent Vice -Chancellor of Calcutta University was set aside.
The High Court held that the Vice -Chancellor had no authority to hold that offic e
on the basis of the order of appointment. The judgment of the Calcutta High Court
was challenged before this Court in Civil Appeal No. 6706 of 2022. One of the
issues that fe ll for consideration of this Court in the said case was, whether the
same procedure which was provided for appointment of a Vice -Chancellor under
Section 8(1) was require d to be followed at the time of reappointment .
62. It was argued that there is a distinction in law between appointment and
reappointment because in the case of the latter the zone of consideration is
restructured to persons already holding posts and in such case the suitability of
the incumbent which was assessed at the time of initial appointment need not be
reassessed.
63. This Court in the afore said case took the view that reappointment of the
Vice -Chancellor need not follow the same process as a fresh appointment by
setting up a selection committee. We may reproduce the relevant observations
made by this Court.
“45. It would be appropriate to also analyze whether the re -
appointment of the V C has to follow the same process as a fresh
appointment, by setting up a selection committee under Section 8(1)
of the Act, as indicated by the Chancellor.
46. Section 8(6) stipulates the manner in which a vacancy in the office
of the V C which occurs by reason of death, resignation, expiration of
the term of office, removal or otherwise shall be filled up. The
provision indicates that such vacancy shall be filled up in accordance
with the provisions of sub -Section (1) of Section 8 of the Act . Section
8(6) has to be read in conjunction with Section 8(1) since the former
expressly refers to the latter. The reference to the provisions of sub -
Section (1) for filling up a vacancy on the expiration of the term of
office will not obviously apply to a case of reapp ointment because the
procedure contemplated by Section 8(1)(b) of a search committee
would not attach to a reappointment. On this aspect, the High Court
has correctly disagreed with the petitioner before it and noted that
amended Section 8(2)(a) which provides for the re -appointment of a
VC for another term does not require that the procedure prescribed in
Section 8(1) has to be followed for re -appointment ”
(Emphasis supplied)
64. We are conscious of the fact, that in Anindya Sundar Das (supra) the afore -
stated line of reasoning was adopted by this Court in view of the amendment that
was carried out whereby the original expression “ subject to provisions of this
section ” in the provision dealing with reappointment was deleted, in other words,
by virtue of such amendment the reappointment was no longer subject to the
provision / section detailing the ordinary procedure for appointment of Vice -
Chancellor , and thus , this Court had no hesitation in holding that the legislature’s
intent was to allow reappoi ntment by the Chancellor itself without following the
ordinary process of appointment.
65. In the case at hand, sub -section (10) of Section 10 of the Act, 1996 , provides
for reappointment and does not even contain the words “ subject to provisions of
this section ”. This in our opinion is as good as to reflect the legislature’s intention
of permitting reappointment without following the ordinary process of
appointment of V ice-Chancellor .
66. Thus, we hold that it is not necessary to follow the procedure of
appointment as laid down in Section 10 of the Act 1996 for the purpose of
reappointment .
iv) Did the Chancellor abdicate or surrender his statutory power of
reappointment of the Vice -Chancellor ?
67. Before we proceed to answer the question whether the Chancellor abdicated
or surrendered his statutory power of reappointment , we must try to understand
the stance of the Chancellor in the present litigation as discernible from the
counter -affidavit filed by him. We are quite perplexed with the stance of the
Chancellor. The Chancellor wants this Court to allow the appeal and declare that
the reappointment of the respondent No. 4 as Vice -Chancellor is not sustainable
in law. The Chancellor say s so because according to him the reappointment of the
respondent No. 4 is in conflict with the UGC Regulations.
68. The UGC Regulations are enacted by the UGC in exercise of powers under
Sections 26(1)(e) and 26(1)(g) of the UGC Act 1956. The Regulations framed
under the said Act, are laid before each House of the Parliament. Therefore, being
a subordinate legislation, the UGC Regulations become s a part of the Act. In case
of any conflict between the State legislation and the Central Legislation, the
Central Legislation shall prevail by applying the rule/principle of repugnancy as
enunciated in Article 254 of the Consti tution as the subject “Education” is in the
Concurrent List ( Entry No. 25 of List III) of the VII Schedule of the Constitution.
Therefore, any appointment or reappointment as a Vice -Chancellor contrary to
the provisions of the UGC Regulations could be said to be in violation of the
statutory provisions. However, the moot question is whether in the present case,
there is any conflict between the State Legislation and the UGC Regulations ? The
UGC Regulations more particularly the Regulation 7.3 which , we have referred
to in the earlier part of our judgment only talks about appointment of Vice -
Chancellor. The UGC Regulations provide for the procedure to be adopted for
appointment of Vice -Chancellor. The UGC Regulations are silent in so far as
reappointment of the Vice -Chancellor is concerned. There is no specific
procedure prescribed by the UGC under its regulations for the purpose of
reappointment of Vice -Chancellor. The entire focus of the Chancellor is on the
aforesaid. However, nothing has been said in the counter -affidavit filed on behalf
of the Chancellor as regards Chancellor’s own independent satisfaction or
judgment for the purpose of reappointment of the respondent No. 4 as Vice -
Chancellor.
69. It is in such circumstances that we have thought fit to pose a question
whether the Chancellor abdicated his statutory power?
70. It has been stated by Wade and Forsyth in Administrative Law , 7th Edn. at
pp. 358 -59 under the heading “ Surrender, Abdication, Dictation ” and sub -heading
“Power in the wrong hands ” as below:
“Closely akin to delegation, and scarcely distinguishable from it in
some cases, is any arrangement by which a power conferred upon one
authority is in substance exercised by another. The proper authority
may share its power with someone else, or may allow someone else to
dictate to it by declining to act without their consent or by submitting
to their wishes or instructions. The effect then is that the discretion
conferred by Parliament is exercised, at least in part, by the wrong
authority, and the resulting decision is ultra vires and void. So strict
are the courts in applying this principle that they condemn some
administrative arrangements which must seem quite natural and
proper to those who make them….
Ministers and their departments have several times fallen foul of the
same rule, no doubt equally to their surprise….”
(Emphasis supplied)
71. It is a well settled (and indeed, bedrock) principle of administrative law that
if a statute expressly confers a statutory power on a particular body or authority
or imposes a statutory duty on the same, then such power must be exercised or
duty performed (as the case may) by that very body or authority itself and none
other. If the body or authority exercises the statutory power or performs the
statutory duty acting at the behest, or on the dictate, of any other body or person,
then this is regarded as an abdication of the statutory mandate and any decision
taken on such basis is contrary to law and liable to be quashed. It is important to
keep in mind that, in law, it matters not that the extraneous element is introduced
(i.e., the advice, recommendation, approval, etc. of the person not empowered by
the statute is obtained or given) in good faith or for the advancement of any goal
or objection howsoever laudable or desirable. The rule of law requires that a
statutory power vests in the body or authority wh ere the statute so provides, and
likewise, the discharge of the statutory duty is the responsibility of the body or
authority to which it is entrusted. That body or authority cannot merely
rubberstamp an action taken elsewhere or simply endorse or ratify the decision of
someone else.
72. The concept of discretionary power and the mode of its exercise by
statutory functionaries was an issue considered by this Court in Union of India v.
Kuldeep Singh reported in (2004) 2 SCC 590, where in paragraphs 20, 21 and 22,
it was held thus;
“20. When anything is left to any person, judge or Magistrate to be
done according to his discretion, the law intends it must be done with
sound discretion, and according to law. (See Tomlin's Law
Dictionary). In its ordinary meaning, the word “discretion” signifies
unrestrained exercise of choice or will; freedom to act according to
one's own judgment; unrestrained exercise of will; the liberty or
power of acting without control other than one's own judgment. But,
when applied to public functionaries, it means a power or right
conferred upon them by law, of acting officially in certain
circumstances according to the dictates of their own judgment and
conscience, uncontrolled by the judgment or conscience of oth ers.
Discretion is to discern between right and wrong; and therefore,
whoever hath power to act at discretion, is bound by the rule of reason
and law. (See Tomlin's Law Dictionary.)
21. Discretion, in general, is the discernment of what is right and
proper. It denotes knowledge and prudence, that discernment which
enables a person to judge critically of what is correct and proper
united with caution; nice discernment, and judgment dir ected by
circumspection; deliberate judgment; soundness of judgment; a
science or understanding to discern between falsity and truth, between
wrong and right, between shadow and substance, between equity and
colourable glosses and pretences, and not to do according to the will
and private affections of persons. When it is said that something is to
be done within the discretion of the authorities, that something is to
be done according to the rules of reason and justice, not according to
private opinion; according to law and not humour. It is to be not
arbitrary, vague and fanciful, but legal and regular. And it must be
exercised within the limit, to which an honest man, competent to the
discharge of his office ought to confine himself (per Lord Halsbury,
L.C., in Sharp v. Wakefie ld [(1891 AC 173: (1886 -90) All ER Rep 651
(HL)]. (Also See S.G. Jaisinghani v. Union of India (A IR 1967 SC
22. The word “discretion” standing single and unsupported by
circumstances signifies exercise of judgment, skill or wisdom as
distinguished from folly, unthinking or haste; evidently therefore a
discretion cannot be arbitrary but must be a result of judicial thinking.
The word in it implies vigilant circumspection and care; therefore,
where the legislature concedes discretion it also imposes a heavy
responsibility ….”
(Emphasis supplied)
73. Again, in Clariant International Ltd . and Another v. Securities &
Exchange Board of India reported in (2004) 8 SCC 524, this Court reiterated
these principles thus;
“27. In Kruger v. Commonwealth of Australia [(1997) 146 Aus LR
126] it is stated:
“Moreover, when a discretionary power is statutorily conferred
on a repository, the power must be exercised reasonably, for the
legislature is taken to intend that the discretion be so exercised.
Reasonableness can be determined only by reference to the
community standards at the time of the exercise of the discretion and
that must be taken to be the legislative intention.....”
28. The discretionary jurisdiction has to be exercised keeping in view
the purpose for which it is conferred, the object sought to be achieved
and the reasons for granting such wide discretion (See Narendra
Singh v. Chhotey Singh [(1983) 4 SCC 131 : 1983 SCC (Cri) 788 ].
xxx xxx xxx
29. A discretionary jurisdiction, furthermore, must be exercised
within the four corners of the statute. [See Akshaibar Lal (Dr.) v.
Vice-Chancellor, Banaras Hindu University [(1961) 3 SCR 386 : AIR
1961 SC 619 ] and also para 9 -022 of de Smith, Woolf and Jowell:
Judicial Review of Administrative Action, 5th Edn., p.445].”
74. Similar are the principles laid down in Joint Action Committee of Air Line
Pilots' Association of India (ALPAI) and Others v. Director General of Civil
Aviation and Others reported in (2011) 5 SCC 435, where it has been held that :
“26. ... It is a settled legal proposition that the authority which has
been conferred with the competence under the statute alone can pass
the order. No other person, even a superior authority, can interfere
with the functioning of the statutory authority. In a de mocratic set -up
like ours, persons occupying key positions are not supposed to
mortgage their discretion, volition and decision -making authority and
be prepared to give way to carry out commands having no sanctity in
law. Thus, if any decision is taken by a statutory authority at the behest
or on suggestion of a person who has no statutory role to play, the
same would be patently illegal. (Vide Purtabpore Co. Ltd. v. Cane
Commr. of Bihar [(1969) 1 SCC 308 : AIR 1970 SC 1896 ], Chandrika
Jha v. State of Bihar [(1984)2 SCC 41 : AIR 1984 SC 322 ], Tarlochan
Dev Sharma v. State of Punjab [(2001) 6 SCC 260 : AIR 2001 SC
2524 ] and Manohar Lal v. Ugrasen [(2010) 11SCC 557 : (2010) 4
27. Similar view has been reiterated by this Court in Commr. of Police
v. Gordhandas Bhanji (AIR 1952 SC 16), Bahadursinh Lakhubhai
Gohil v. Jagdishbhai M. Kamalia [(2004) 2 SCC 65 : AIR 2004 SC
1159 ] and Pancham Chand v. State of H.P . [(2008) 7 SCC 117 : AIR
2008 SC 1888 ] observing that an authority vested with the power to
act under the statute alone should exercise its discretion following the
procedure prescribed therein and interference on the part of any
authority upon whom the statute does not confer any jurisdiction , is
wholly unwarranted in law. It violates the constitutional scheme.
28. In view of the above, the legal position emerges that the authority
who has been vested with the power to exercise its discretion alone can
pass the order. Even a senior official cannot provide for any guideline
or direction to the authority under the statute to act in a particular
manner. ”
(Emphasis supplied)
75. In Hardwari Lal , Rohtak v. G.D. Tapase , Chandigarh and
others reported in AIR 1982 P unjab and Haryana 439 (Full Bench ) the powers of
the Governor with respect to the appointment/removal of the Vice -Chancellor of
Maharshi Dayanand University, Rohtak under the Maharshi Dayanand University
(Amendment) Act, 1980 were considered wherein a direction was sought with
regard to th e renewal of the term of the Vice -Chancellor of the said University.
Certain promises had been made in connection with the same while making such
appointment. The Court held that as the Governor was the ex officio Chancellor
of the University, therefore, b y virtue of his office, he was not bound to act under
the aid and advice of the Council of Ministers. Under Article 154 of the
Constitution, the executive powers of the State are vested in the Governor which
may be exercised by him either directly, or through officers subordinate to him,
in accordance with the provisions of the Constitution. Article 161 confers upon
the Governor, a large number of powers including the grant of pardon, reprieves,
respites or re missions of punishment, etc. Such executive power can be exercised
by him only in accordance with the aid and advice of the Council of Ministers.
Article 162 states that the executive power of the State shall extend to all such
matters with respect to whic h the Legislature of the State has the power to make
laws. Therefore, the said provision widens the powers of the Governor. Article
166(3) of the Constitution further bestows upon the Governor the power to make
rules for more convenient transactions of bus iness of the Government of the State
and also for the purpose of allocating among the Ministers of State such business.
There are several ways by which, a power may be conferred upon the Governor,
or qua the Governor, which will enable him to exercise the said power by virtue
of his office as Governor. Therefore, there can be no gainsaying that all the powers
that are exercisable by the Governor by virtue of his office can be exercised only
in accordance with the aid and advice of the Council of Ministers e xcept insofar
as the Constitution expressly, or perhaps by necessary implication, provides
otherwise.
76. Thus, in such a situation, the statute makes a clear -cut distinction between
two distinct authorities, namely, the Chancellor and the State Government. When
the legislature intentionally makes such a distinction, the same must also be
interpreted distinctly, and while dealing with the case of the Vice -Chancellor, the
Governor, being the Chancellor of the University, acts only in his personal
capacity, and ther efore, the powers and duties exercised and performed by him
under a statute related to the University, as its Chancellor, have absolutely no
relation to the exercise and performance of the powers and duties by him while
he holds office as the Governor of t he State.
77. Hardwari Lal (supra) has been referred to and relied upon by this Court
in Bhuri Nath and Others v. State of J &K and Others reported in (1997) 2
SCC 745. In the said case, the question that arose was in relation to whether
the Governor was bound to act in accordance with the aid and advice of the
Council of Ministers, or whether he could exercise his own discretion,
independent of his status and position as the Governor, by virtue of him being
the ex officio Chairman of the Shri Mata Vaishno Devi Shrine Board under
the Shri Mata Vaishno Devi Shrine Act, 1988. The Shrine Board discharges
functions and duties, as have been described under the Act in the manner
prescribed therein, and thus, after examining the s cheme of the Act, this Court
held that, “ In Hardwari Lal case [AIR 1982 P&H 439 : (1982) 1 SLR 39] , a
Full Bench of the Punjab and Haryana High Court was to consider whether
the Governor in his capacity as the Chancellor of Maharshi Dayanand
University was to act under Maharshi Dayanand University Act, 1975
(Haryana Act No. 25 of 1975) in his official capacity as Chancellor or with
aid and advice of the Council of Ministers. The Full Bench, after elaborate
consideration of the provisions of the Act and the statutes, came to observe in
para 121 at p. 476 that the Act and the statutes intended that the State
Government would not interfere in the affairs of the University. The St ate
Government is an authority quite distinct from the authority of the Chancellor.
The State Government cannot advise the Chancellor to act in a particular
manner. The University, as a statutory body, autonomous in character, has
been given certain powers exercisable by the Chancellor in his absolute
discretion without any interference from any quarter. In the appointment of
the Vice -Chancellor or the Pro -Vice-Chancellor, the Chancellor is not
required to consult the Council of Ministers. Though by virtue of his office as
Governor, he becomes the Chancellor of the University, but while discharging
the functions of his office, he does not perform any duty or exercise any power
of the office of the Governor individually. However, while discharging the
functio ns as a Chancellor, he does every act in his discretion as Chancellor
and he does not act on the aid and advice of his Council of Ministers. The
performance of the functions and duties under the Constitution with the aid
and advice of the Council of Minist ers is distinct and different from his
discharge of the powers and duties of his office as Chancellor of the
University. Under the Act and the statute, the Chancellor has independent
existence and exercises his powers without any interference from any quarter.
Therefore, the office as a Chancel lor held by the Governor is a statutory office
quite distinct from the office of the Governor. Same view was taken by the
Andhra Pradesh High Court in Kiran Babu case [AIR 1986 AP 275 : (1986)
78. Bearing the aforesaid pr inciples of law in mind , we proceed to consider
whether there was any independent application of mind or satisfaction on the part
of the Chancellor in reappointing the respondent No. 4 as Vice -Chancellor. The
facts narrated by us in the earlier part of our judgment speak for themselves . The
Chancellor had already initiated the steps for appointment of a new Vice -
Chancellor and this is evident by the fact that a selection committee was also
constituted vide Notification dated 27.10.20 21. It appears that at that point of time
reappointment of the respondent No. 4 as Vice -Chancellor in accordance with
sub-section (10) of Section 10 of the Act 1996 was not in the mind of the
Chancellor.
79. The State of Kerala issued Notification dated 01.11.2021 inviting
applications from eligible candidates. All of a sudden, the Minister for Higher
Education and Social Justice in his capacity as the Pro-Chancellor addressed a
letter to the Chancellor dated 22.11.2021 recommending reappointment of the
respondent No. 4 herein for a second term as Vice -Chancellor. It is also pertinent
to note that on 22.11.2021 itself the notification inviting application from the
eligible candidates was withdrawn. On the same da te, the Minister addressed one
another letter to the Chancellor stating that the respondent No. 4 be reappointed
as Vice -Chancellor of Kannur University. On the very same day i.e., on
23.11.2021 , the notification reappointi ng the respondent No. 4 as Vice -Chancellor
was issued .
80. It appears from the press release issued by the Kerala Raj Bhavan dated
03.02.2022 that the opinion of the Advocate General was also sought for in
connection with reappointment of the respondent No. 4 as Vice -Chancellor. The
very first para of the press release states that “Kerala Raj Bhavan strongly refutes
the claim in some news reports that it was on the direction of Hon'ble Governor
that the name of Dr. Gopinath Ravindran was suggested for reappointment as
Vice Chancellor, Kannur University. The truth is that the same was initiated by
the Chief Minister and Higher Education Minister .” The last part of the report
is also relevant. It states that the process of selection of Vice -Chancellor which
was set in motion vide Notification dated 27.10.2021 came to an end consequent
to the request from the Minister of Higher Education and the opinion of the
Advocate General , State of Kerala.
81. The afores tated facts make it abundantly clear that there was no
independent application of mind or satisfaction or judgment on the part of the
Chancellor and the respondent No. 4 came to be re appointed only at the behest of
the State Government.
82. Under the scheme of the Act 1996 and the statutes, the Chancellor plays a
very important role. He is not merely a titular head. In the selection of the Vice -
Chancellor, he is the sole judge and his opinion is final in all respects. In
reappointing the Vice -Chancellor, the main consideration to prevail upon the
Chancellor is the interest of the university.
83. The Chancellor was required to discharge his statutory duties in accordance
with law and guided by the dictates of his own judgment and not at the behest of
anybody else. Law does not recognise any such extra constitutional interference
in the exercise of statutory discretion. Any such interference amounts to dictation
from political superior and has been condemned by courts on more than one
occasions.
84. It is now well settled that a writ of quo warranto lies if any appointment to
a public office is made in breach of the statute or the rules. In the case on hand,
we are not concerned with the suitability of the respondent No. 4. The “suitability”
of a candidate for appointment to a post is to be judged by the appointing authority
and not by the court unless the appointment is contrary to the statutory
rules/provisions. We have reach ed to the conclusion that although the notification
reappointing the respondent No. 4 to the post of Vice -Chancellor was issued by
the Chancellor yet the decision stood vitiated by the influence of extraneous
consideration s or to put it in other words by the unwarranted intervention of the
State Government.
85. It is the Chancellor who has been conferred with the competence under the
Act 1996 to appoint or reappoint a Vice -Chancellor. No other person even the
Pro-Chancellor or any superior authority can interfere with the functioning of the
statutory authority and if any decision is taken by a statutory authority at the
behest or on a suggestion of a person who has no statutory role to play, the same
would be patently illegal.
86. Thus, it is the decision -making process , which vitiated the entire process of
reappointment of the respondent No. 4 as the Vice -Chancellor. The case on hand
is not one of mere irregularity.
87. We emphasis e on the decision -making process because in such a case the
exercise of pow er is amenable to judicial review.
88. In Chief Constable of the North Wales Police v. Evans reported in (1982)
1 WLR 1155 : (1982) 3 All ER 141 (HL), Lord Brightman observed thus: (WLR
p. 1174 G)
“… Judicial review, as the words imply, is not an appeal from a
decision, but a review of the manner in which the decision was made.”
89. In view of the aforesaid, we allow this appeal.
90. The impugned judgment and order passed by the High Court dated
23.02.2022 is hereby set aside. As a consequence, the Notification dated
23.11.2021 , reappointing the respondent No. 4 as the Vice -Chancellor of the
Kannur University is hereby quashed.
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The Supreme Court on Thursday quashed the re-appointment of Dr. Gopinath Raveendran as the Vice Chancellor of Kannur University, holding that the Kerala government's unwarranted interference in the matter has vitiated the appointment.
A bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra held that only the Chancellor (the Kerala Governor) can make appointments to the post and not even the pro-chancellor can intervene in the matter.
In this case, the Court noted that the Chancellor had, in fact, issued a notification appointing Dr. Gopinath Raveendran to the post. However, even this notification stood tainted by unwarranted interference by the CPI (M)-led Kerala government, the Court opined.
Though the Court agreed with the State's submission that the reappointment was not hit by the age-limit prescription, it quashed the reappointment on the ground of excessive State interference.
The top court, therefore, set aside a February 2022 Kerala High Court order which had upheld the re-appointment of Dr. Raveendran to the post.
"Although the notification of appointment was issued by the Chancellor, but it was vitiated by unwarranted interference by the State government. It is only the Chancellor who can appoint and not even pro chancellor can intervene. If any statutory authority interferes then it would be patently illegal. Thus the appointment was vitiated by the interference by the State. We allow the appeal and the High Court order is set aside. Thus the notification of Nov 2021 re-appointing (Dr. Raveendran) as VC of Kannur University is quashed," the Supreme Court said.
The 2021 re-appointment of Dr. Raveendran as the Vice Chancellor of Kannur University was challenged on the ground that he was past the statutory age-limit of 60 years at the time of his re-appointment since he was 61 at the time of his reappointment (being born on December 19, 1960).
His re-appointment was defended on the ground that he was within the age limit when he was appointed for the first time. The said age limit would not apply when it comes to his second appointment, it was argued.
The Supreme Court agreed with this submission, holding that the age limit would not apply for "re-appointments"
"It is not necessary that there cannot be a re-appointment in a tenure post. The outer limit of 61 years will not apply as in the re-appointment process. We have also held that the process of re-appointment need not be similar as a fresh appointment of a Vice-Chancellor," the Supreme Court said.
Nevertheless, the manner in which the State government had acted throughout the episode ultimately led the top court to quash Dr. Raveendran's re-appointment in this case.
"We have relied on the press reports, we have held that it is now well settled that writ of quo warranto lies if an appointment is in breach of a statute," the Court said while pronouncing its verdict.
The re-appointment of Dr. Raveendran as the Kannur Vice-Chancellor had been embroiled in political controversy.
After he was re-appointed, the Kerala Governor, Mohammed Arif Khan, claimed that he was pressured by the CPI-M led State government to sign off on the re-appointment and that there was excessive executive interference in University appointments.
The Governor also later alleged that Dr. Raveendran was part of a conspiracy to attack him (Arif Khan) when he visited the Kannur University campus.
Allegations also arose that Dr. Raveendran's re-appointment was made without following the usual norms applicable for appointments to this post.
In December 2021, a single-judge of the Kerala High Court upheld the appointment. This verdict was affirmed by a division bench of the High Court in February 2022, following which the case reached the Supreme Court.
The Supreme Court allowed the appeal against the High Court's decisions in the matter.
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S.B. Criminal Misc(Pet.) No. 6068/2021
1. Alok Dhir S/o Shri L P Dhir, Aged About 61 Years, R/o C
361 Defence Colony, New Delhi.
2. Sasi Madathil S/o Shri Kondooli Raman Nair, Aged About
61 Years, working for gain at A 270 1st and 2nd Floor,
Defence Colony, New Delhi.
----Petitioners
Versus
1. State Of Rajasthan, Through PP
2. Harendar Singh S/o Dilip Singh, R/o C 22 Vaishali Marg,
Vaishali Nagar, Jaipur.
----Respondents
For Petitioner(s) : Dr. Abhishek Manu Singhvi, Sr. Adv
through VC
Mr. Sudhir Nandrajog, Sr. Adv
Mr. Ravi Bhansali, Sr. Adv
Mr. Vikas Balia
Mr. Saket Sikri
Mr. Ashu Kansal
Mr. Karan Batura
Mr. Nikhil Singhvi
Mr. Abhishek Mehta
Mr. Vipul Singhvi
Mr. Shubham Modi
Mr. Vipul Dharnia
Mr. Dhanesh Saraswat
For Respondent(s) : Mr. Saransh Saini through VC
Mr. Devendra Mahalana
Order
Heard learned counsel for the parties.
Mr. Abhishek Manu Singhvi, learned Senior Counsel
appearing for the petitioner submits that on identical facts, an FIR
bearing No. 605/2017 was registered at Jaipur, wherein the same
transaction was questioned and the Hon’ble Supreme Court vide
its order dated 23.10.2017 passed in Civil Appeal No. 16929 of
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(2 of 3) [CRLMP-6068/2021]
2017 arising out of SLP (C) No. 18195/2017 quashed the FIR No.
605/2017. Learned Senior Counsel submits that even in the
present FIR No. 37/2015, the police after investigation has filed
the negative final report stating therein that the case is of civil
nature. He further contends that the chronology of events shows
that the matter is of civil nature and the allegations levelled in the
FIR have already been adjudicated right up to the Hon’ble
Supreme Court and the same has been decided in their favour.
Learned Senior Counsel further submits that the petitioners are
ready and willing to appear before the trial court but the
petitioners have been summoned by issuing the warrant of arrest
straightaway without having been summoned earlier to this.
Matter requires consideration.
Issue notice to the respondents.
Mr. S.K. Bhati and Mr. M.S. Bhati, learned Public Prosecutor
put in appearance on behalf of the respondent no.1. Mr. Saransh
Saini, learned counsel accepts notice on behalf of respondent
No.2. Service is, therefore, sufficient. The petitioners shall supply
a copy of the petition along with requisite document to the counsel
for the respondents within a period of three days from today.
Mr. Saini seeks four weeks’ time to file reply to the petition.
Time prayed for is allowed.
Put up 13.12.2021.
I have considered the submissions made at Bar and also
gone through the order dated 23.10.2017 passed by the Hon’ble
Supreme Court, wherein, the Hon’ble Supreme Court while
quashing the FIR No. 605/2017 held as under:-
“This being the case, we are surprised that an
arbitration proceeding has been purported to be
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(3 of 3) [CRLMP-6068/2021]
started after the imposition of the said moratorium
and appeals under Section 37 of the Arbitration Act
are being entertained. Therefore, we set aside the
order of the District Judge dated 06.07.2017 and
further state that this effect of Section 14 (1) (a) is
that the arbitration that has been instituted after the
aforesaid moratorium is not est in law.
Mr. Jayant Bhushan, learned Senior Counsel,
also informs us that criminal proceeding being F.I.R
No. 0605 dated 06.08.2017 has bee taken in a
desperate attempt to see that the IRP does not
continue with the proceeding under the Insolvency
Code which are strictly time bound. We quash this
proceeding.”
From the overall facts and circumstances of the case, it
is borne out that the present proceedings arise out of the FIR No.
37/2015, wherein, the allegations levelled against the petitioners
are almost the same as that of the FIR No. 605/2017 and are
related to the same transactions. It is noted that the proceedings
arises out of the non-repayment of the loan of Rs. 25 Crores, the
proceedings undertaken before the NCLT, NCLAT, and the Hon’ble
Supreme Court appear to be of civil nature. Further in FIR No.
37/2015, the police after thorough investigation has given the
negative final report.
Taking into account all the facts and circumstance of the
case, it is ordered that in the meantime and till the next date of
hearing, effect and operation of the order dated 12.02.2020 and
consequential orders dated 31.03.2021 and 01.10.2021 passed by
the Chief Judicial Magistrate, Jaisalmer shall remain stayed to the
extent of summoning the petitioners through warrant of arrest.
233-Shahenshah/-
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An order passed by a Jaisalmer court on February 12, 2020 issuing non-bailable arrest warrants against Dhir and Dhir managing partner, Alok Dhir in relation to the State Bank of India (SBI) loan scam, was stayed by the Rajasthan High Court on Tuesday (Alok Dhir & Ors. vs. State of Rajasthan).
Single-judge Justice Vinit Kumar Mathur of Jodhpur Bench stayed the order passed by Chief Judicial Magistrate (CJM), Jaisalmer.
"Taking into account all the facts and circumstance of the case, it is ordered that in the meantime and till the next date of hearing, effect and operation of the order dated 12.02.2020 and consequential orders dated 31.03.2021 and 01.10.2021 passed by the Chief Judicial Magistrate, Jaisalmer shall remain stayed to the extent of summoning the petitioners through warrant of arrest," the High Court ordered.
The stay will remain in effect till the next date of hearing.
The Court also issued notice to the State of Rajasthan over the manner in which it had issued arrest warrant against Dhir straightaway without summoning him earlier.
"Matter requires consideration. Issue notice to the respondents," the Court said in this regard.
The present case arose from a first information report (FIR) registered in the year 2015 in connection with Jaisalmer Hotel Project, which was financed by the SBI in 2007.
The police had conducted an investigation and a closure report was initially filed in the case.
Thereafter, the complainant filed a protest petition which was allowed by the CJM of Jaisalmer by an order dated February 12, 2020 on the ground that cognizable offences against the petitioners were made out under Sections 420, 409 and 120B of the Indian Penal Code.
The CJM had directed that after compliance with Section 204 CrPC, the petitioners must be summoned through an arrest warrant.
Senior Advocate Abhishek Manu Singhvi appearing on behalf of Dhir, submitted before the High Court that on identical facts, an FIR was registered at Jaipur, wherein the same transaction was questioned.
However, the Supreme Court by its order dated October 23, 2017, had quashed that FIR.
Even in the present FIR, the police had initially filed a closure report, he pointed out.
It was also his argument that the matter was of civil nature and had already been adjudicated right up to the Supreme Court.
The Court agreed with the submission stating that the allegations in the present case are similar to the one in the Jaipur FIR which had been quashed by the Supreme Court
"From the overall facts and circumstances of the case, it is borne out that the present proceedings arise out of the FIR No. 37/2015, wherein, the allegations levelled against the petitioners are almost the same as that of the FIR No. 605/2017 and are related to the same transactions. It is noted that the proceedings arises out of the non-repayment of the loan of Rs. 25 Crores, the proceedings undertaken before the NCLT, NCLAT, and the Hon’ble Supreme Court appear to be of civil nature," the order said.
Further in the present, the police after thorough investigation had initially given a negative final report, the Court noted.
It, therefore, stayed the warrant of arrest against Dhir and another accused Sasi Madathil.
The matter will now be heard on December 13, 2021.
The Delhi High Court had earlier granted transit anticipatory bail to Dhir and Madathil to enable them to move appropriate court in Rajasthan for relief.
The Petitioners were also represented by Senior Advocates Sudhir Nandrajog and Ravi Bhamsali along with Advocates Vikas Balia, Saket Sikri, Anshu Bansal, Karan Batura, Nikhil Singhvi, Abhishek Mehta, Vipul Singhvi, Shubham Modi, Vipul Dharnia, Dhanesh Saraswat. Public Prosecutors SK Bhati and MS Bhati appeared on behalf of State of Rajasthan.
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1.By presenting this petition under Section 25 of the Code of Civil
Procedure, 1908, the petitioner-wife seeks transfer of proceedings
instituted by the respondent-husband under Section 25 of the Guardians
the Family Court, West District, New Delhi or any other court of competent
jurisdiction at New Delhi, on the grounds urged therein.
2.This transfer petition was considered by an Hon’ble Judge on
14.08.2023. In the third paragraph it has been recorded that the
petitioner-wife is residing in New Delhi. According to the petitioner-wife,
she has been residing in Chandigarh although she has her office in
Panchkula.
3.Since there has been an erroneous recording of the place of
residence of the petitioner-wife in the third paragraph of the order dated
1and Wards Act, 1890 bearing Case No. GW 3/2023, titled “
, from the Court of the Civil Judge, Senior Division, Chandigarh to
14.08.2023, an application (I.A No. 171122 of 2023) has been moved on
her behalf for rectification of the said order dated 14.08.2023.
4.I.A No. 171122 of 2023 stands disposed of by clarifying that the order
dated 14.08.2023 recording that the place of residence of the petitioner-
wife is Delhi should be read as Chandigarh.
5.By the said order dated 14.08.2023, notice was issued to the
respondent-husband. He has entered appearance and has also filed a
counter affidavit.
6.In the presence of the learned counsel for the parties, the transfer
petition is taken up for consideration. The prayer for transfer is essentially
based on the apprehension of the petitioner-wife that since she has been
serving on a transferable post and there is an imminent possibility of her
transfer out of Panchkula, the proceedings of GW 3/2023 may be
transferred to the Courts at New Delhi where matrimonial proceedings
between the parties are pending.
7.The aforesaid prayer of the petitioner-wife is vehemently opposed by
learned counsel for the respondent-husband. According to him, the child of
the parties is presently in the custody of the petitioner-wife and he has
been residing with her in Chandigarh; and, without caring for the interest
of the child, the petitioner-wife seeks to have the proceedings transferred
from a Court which is 2 kms away from his (child’s) residence to a Court
which is 250 kms away.
8.Having bestowed serious consideration to the rival contentions, this
Court is of the view that no order for transfer ought to be passed on mere
assumptions and apprehensions of the parties. As at present, Panchkula
remains to be the place of office of the petitioner-wife and it is also not in
dispute that Chandigarh is the place of her residence as well as that of the
child. The interest of the child being of paramount importance, at this
stage, this Court finds no reason to grant the prayer for transfer.
9.The Transfer Petition stands dismissed, without costs.
10.Pending application(s), if any, shall stand disposed of.
Transfer Petition(s)(Civil) No(s). 2154/2023
Date : 22-09-2023 These matter was called on for hearing today.
For Petitioner(s) Mr. Akanksha Sisodia, Adv.
Mr. Pulkit Tare, AOR
For Respondent(s) Mr. Setu Niket, Adv.
Ms. Esha Mazumdar, Adv.
Mr. Azmat Hayat Amanullah, AOR
Mr. Chaitanya Kamal, Adv.
UPON hearing the counsel the Court made the following
1.IA No. 171122 of 2023 (application for rectification) stands disposed
of.
2.The Transfer Petition stands dismissed in terms of the signed order.
3.Pending application(s), if any, shall stand disposed of.
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The Supreme Court recently emphasised that child custody cases under the Guardians and Wards Act cannot be transferred from one court to another merely based on the apprehensions of parties to the dispute.
The Court made the observation while rejecting a plea filed by a wife to transfer proceedings in a child custody case from Chandigarh to Delhi.
The interest of the child is of paramount importance in such cases, single-judge Justice Dipankar Datta noted.
"No order for transfer ought to be passed on mere assumptions and apprehensions of the parties. The interest of the child being of paramount importance, at this stage, this Court finds no reason to grant the prayer for transfer," the Court's September 22 order stated.
The matter concerned a child custody case pending in Chandigarh. The husband had moved the family court under Section 25 of the Guardians and Wards Act seeking custody of his son.
The wife was working in Panchkula (Haryana), where she was also residing with their son. However, she sought the transfer of the child custody case since she had a transferable job and faced an imminent posting out of Haryana.
Therefore, she sought the continuation of the child custody case in Delhi, where a matrimonial case between her and her estranged husband was already pending.
The husband opposed the transfer plea on the ground that Delhi would be over 250 kilometers away from the child's current residence.
The Supreme Court, in turn, refused to transfer the case out of Chandigarh.
"As at present, Panchkula remains to be the place of office of the petitioner-wife and it is also not in dispute that Chandigarh is the place of her residence as well as that of the child," the Court observed.
The transfer petition was, therefore, dismissed.
Advocates Akanksha Sisodia and Pulkit Tare represented the wife.
Advocates Setu Niket, Esha Mazumdar, Azmat Hayat Amanullah, and Chaitanya Kamal appeared for the husband.
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This petition is filed by the petitioners under Sectio n 438
of Cr.P.C. seeking anticipatory bail in the event of their arrest
in Crime No.44 of 2022 of Vidhana Soudha Police Stat ion,
Bengaluru for the offences punishable under Sections 420 ,
465, 468 of IPC.
2. Heard the arguments of learned Senior counsel for
the petitioners and learned High Court Government Ple ader for
the respondent-State and perused the records.
3. The brief factual matrix leading to the case is that ;
The complainant had filed Writ Petition bearing
No.56012/2015 and RSA No.50/2017 in this High Court. She
has engaged accused No.1 to prosecute both the cases and in
this regard she has paid a sum of Rs.10,00,000/- to accuse d
No.1 and petitioners by way of Demand Draft, Cash and
Cheques. It is further alleged that accused No.1 had sent
Court orders by Whats App message bearing the seal of th e
High Court as well as signature of the Registrar. When t he
complainant has checked the same in the High Court website ,
it was found that the orders were not there. Then whe n she
enquired with accused No.1, it is asserted that due to Corona,
certain orders were not uploaded. However, the complain ant
then suspected that they appears to be fake orders and she
approached accused No.1. But accused No.1 on the contrary
abused her in filthy language and then she asked accused
No.1 to return her case’s files as well as amount of
Rs.10,00,000/- received by her. But accused No.1 did no t
refund the said amount. Hence complainant has filed
complaint on 04.07.2022 before the concerned jurisdict ional
police and crime came to be registered.
4. The present petitioners are the wife and son of
accused No.1 and it is also alleged that they have also
received certain amount from the complainant. They ha ve
approached the learned Sessions judge seeking anticipato ry
bail but Sessions Judge has rejected the bail petition.
Therefore, the petitioners are before this Court.
5. Having heard the arguments and perusing the
records, it is evident that accused No.1 is a legal practi tioner
and complainant has entrusted writ petition No.56012/2 015
and RSA No.50/2017 to him to prosecute on her behalf.
Further she has alleged to have given Rs.10,00,000/- t o him.
Though it is alleged that amount was paid to the prese nt
petitioners also, but prima-facie no material evidence is placed
to show that the present petitioners have received any
amount from the complainant. Further the present peti tioners
are not legal practitioners. The allegation does disclose s that it
is only accused No.1 who has forged the Court’s orders and
sent through Whats App to the complainant.
6. Though there is allegation in the complaint that
the amount is also paid to the present petitioners also, but
prosecution has not produced any scrap of paper to show th at
any amount was deposited to the account of the present
petitioners. Petitioner No.2 is the woman and petitio ner No.3
is the student. Petitioner No.2 falls under exception . The
offences alleged are not exclusively punishable with dea th or
life imprisonment, and are triable by the learned Ma gistrate.
Further the main allegation regarding forgery and ch eating is
against accused No.1.
7. Under these circumstances, I do not find any
impediment for admitting the petitioners on bail. Th e other
apprehensions raised by the learned HCGP can be meted b y
imposing certain conditions. Hence, the petition needs to be
allowed by imposing certain stringent conditions. Accordin gly,
I proceed to pass the following:-
The petition is allowed .
The petitioners/accused Nos.2 and 3 are
directed to be enlarged on bail in event of their
arrest, in Crime No.44/2022 of Vidhana Soudha
Police Station, registered for the offences punishable
under Sections 420, 465, 468 of IPC on each of them
executing personal bond for a sum of Rs.1,00,000/-
(Rupees One Lakhs only) with one surety for the like-
sum to the satisfaction of the Investigating
Officer/SHO, subject to the following conditions:
(i) Petitioners shall surrender before the
Investigating Officer/SHO within 15 days from
the date of receipt of the certified copy of the
order and in the event of their surrender, the
Investigating Officer/SHO shall release the
petitioners as directed above.
(ii) Petitioners shall not indulge in similar offences
strictly;
(iii) Petitioners shall not tamper with the
prosecution witnesses directly/ indirectly;
(iv) Petitioners shall co-operate with Investigating
Officer and appear before him as and when
directed during the course of investigation.
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The Karnataka High Court recently granted anticipatory bail to the wife and son of a lawyer accused of offences under Sections 420, 465, 468 of the Indian Penal Code (IPC) for sending fake orders to a client [Umadevi Murugesh and Anr. vs State of Karnataka].
Justice Rajendra Badamikar observed that although it was alleged that the accused received money paid as fees by the client, there was no evidence to prove the same.
He further underlined that the petitioners were not legal practitioners and as per the accusation, only the lawyer had forged orders of the Court.
"Though it is alleged that amount was paid to the present petitioners also, but prima-facie no material evidence is placed to show that the present petitioners have received any amount from the complainant. Further the present petitioners are not legal practitioners. The allegation does discloses that it is only accused No.1 who has forged the Court’s orders and sent through Whats App to the complainant," the Court said.
The complainant had engaged advocate Murugan Shettar, the lawyer accused, to represent her in two petitions before the High Court by paying him ₹10 lakh.
She alleged that he sent her forged orders over WhatsApp, and on confrontation, turned hostile.
When the lawyer refused to refund her money, she filed the complaint.
The Court, after noting that as per evidence, no money was received by the petitioners, also noted that the alleged offences were not punishable with death or life imprisonment and that the main allegations of forgery and cheating were against the lawyer and not his son or wife.
Therefore, it allowed the application for anticipatory bail subject to stringent conditions.
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Re: Filling up vacancies of judges in the Supreme Court.
The Supreme Court of India has a sanctioned strength of thirty -
four Judges and is presently functioning with thirty -one Judges . Thus,
there are three clear vacancies. That makes it imperative for the
Collegium to take steps to fill up the vacancies with a view to augment
the working judge -strength to take care of the backlog of cases and
the large institution of fresh matters.
The Collegium delibe rated on and discussed the names of Chief
Justices and senior puisne Judges of the High Courts eligible for
appointment to the Supreme Court. Judgments authored by those
falling in the zone of consideration for elevation to the Supreme Court
were circulate d among the members of the Collegium , well in
advance, for a meaningful discussion on and assessment of their
judicial acumen. The Centre for Research & Planning of the Supreme
Court has prepared a compilation of relevant background material to
assist the Collegium.
While recommending appointments to the Supreme Court the
Collegium has taken into consideration the following aspects:
a. The seniority of Chief Justices and senior puisne Judges
in their respective parent High Courts as well as overall
seniority of the High Court Judges;
b. The merit, performance and integrity of the judges under
consideration; and
c. The need to ensure diversity and inclusion in the
Supreme Court by:
(i) representation of High Courts which are not
represented or are inadequately represented, in the
Supreme Court;
(ii) appointment of persons from marginalized and
backward segments of society;
(iii) gender diversity; and
(iv) representation of minorities.
After carefully evaluating the merit, integrity and competence
of eligible Chief Justices and senior puisne Judges of the High Courts
and also accommodating a plurality of considerations, the Collegium
finds the following persons to be deserving and suitab le in all respects
for being appointed as Judge s of the Supreme Court of India :
i. Mr Justice Ujjal Bhuyan ,
Chief Justice, High Court for the State of Telangana,
ii. Mr Justice S Venkatanarayana Bhatti ,
Chief Justice, High Court of Keral a,
(PHC: Andhra Pradesh)
The Collegium , therefore, unanimously resolves to recommend
that (i) Mr Justice Ujjal Bhuyan, and (ii) Mr. Justice S
Venkatanarayana Bhatti , be appointed as Judge s of the Supreme
Court of India.
Mr Justice Ujjal Bhuyan was appo inted as a judge of the Gauhati
High Court on 17 October 2011. He is the senior -most judge of his
parent High Court and is presently serving as Chief Justice of the High
Court for the State of Telangana since 28 June 2022. Mr Justice
Bhuyan has served as a judge of the Gauhati High Court and as Chief
Justice of High Court for the State of Telangana. During his long tenure
as a judge of the High Court Mr Justice Bhuyan has acquired significant
experience in diverse fields of law. He has acquired speciali sation and
domain knowledge in the law of taxation. He has also served as a judge
of the Bombay High Court dealing with a wide spectrum of cases
including taxation. His judgments cover wide ranging issues pertaining
to law and justice. Mr. Justice Ujjal Bhuyan is a judge with a good
reputation for integrity and competence.
Mr Justice S Venkatanarayana Bhatti was appointed as a Judge
of the High Court of Andhra Pradesh on 12 April 2013 and is the senior -
most in his parent High Court. The High Court of Andhra Pradesh does
not have any representation on the Bench of the Supreme Court since
August 2022. He was transferred to the High Court of Kerala in March
2019 and is presently serving as Chief Justice there since 01 June 2023.
During his long tenure as a judge of the High Court of Andhra High
Pradesh and as a Judge and subsequently as Chief Justice of the High
Court of Kerala, Mr Justice Bhatti has acquired considerable experience
in various branches of law. The judgments authored by him dealing
with issues in various branches of law stand testimony to his legal
acumen and competence. Apart from according representation to the
State of Andhra Pradesh, the appointment of Mr Justice Bhatti will
provide a value addition in terms of his acquired kno wledge and
experience. He commands a good reputation and possesses integrity
and competence.
In view of the foregoing, the Collegium further resolves to
recommend that the appointments of the above persons be made in
the following order of seniority:
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The Supreme Court Collegium on Wednesday recommended the elevation of two High Court Chief Justices, Justice Ujjal Bhuyan and Justice SV Bhatti as judges of the apex court.
Justice Bhuyan is currently serving as the Chief Justice of the Telangana High Court while Justice Bhatti is the Chief Justice of Kerala High Court.
Justice Bhuyan's parent High Court is the Gauhati High Court.
He was appointed as a judge of the Gauhati High Court on October 17, 2011. He is the senior-most judge of his parent High Court and has been serving as Chief Justice of the Telangana High Court since June 28, 2022.
"Mr Justice Bhuyan has served as a judge of the Gauhati High Court and as Chief Justice of High Court for the State of Telangana. During his long tenure as a judge of the High Court Mr Justice Bhuyan has acquired significant experience in diverse fields of law. He has acquired specialisation and domain knowledge in the law of taxation. He has also served as a judge of the Bombay High Court dealing with a wide spectrum of cases including taxation. His judgments cover wide ranging issues pertaining to law and justice. Mr. Justice Ujjal Bhuyan is a judge with a good reputation for integrity and competence," the Collegium resolution said.
Justice Bhatti was appointed as a judge of the High Court of Andhra Pradesh on April 12, 2013 and is the senior-most in his parent High Court.
He was transferred to the Kerala High Court in March 2019 and is presently serving as Chief Justice there since June 1, 2023.
The Collegium resolution noted that the Andhra Pradesh High Court does not have any representation in the Supreme Court since August 2022.
"During his long tenure as a judge of the High Court of Andhra High Pradesh and as a Judge and subsequently as Chief Justice of the High Court of Kerala, Mr Justice Bhatti has acquired considerable experience in various branches of law. The judgments authored by him dealing with issues in various branches of law stand testimony to his legal acumen and competence. Apart from according representation to the State of Andhra Pradesh, the appointment of Mr Justice Bhatti will provide a value addition in terms of his acquired knowledge and experience. He commands a good reputation and possesses integrity and competence," the resolution said.
The Supreme Court is currently functioning with a strength of 31 judges as against a sanctioned strength of 34.
Justice Krishna Murari will be retiring on July 7 Friday taking the total vacancies to 4.
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Siddharth Mukesh Bhandari …Appellant(s)
Versus
The State of Gujarat and Anr. …Respondent(s)
Siddharth Mukesh Bhandari …Appellant(s)
Versus
The State of Gujarat and Anr. …Respondent(s)
Siddharth Mukesh Bhandari …Appellant(s)
Versus
The State of Gujarat and Ors. …Respondent(s)
1.Feeling aggrieved and dissatisfied with the impugned interim order
dated 14.02.2022 passed by the High Court of Gujarat at Ahmedabad in
respective Special Criminal Application Nos. 9112 of 2019, 9111 of 2019
and 9475 of 2019 by which the High Court while admitting the special
criminal applications filed under Article 226 of the Constitution read with
Section 482 of the Code of Criminal Procedure (Cr.P.C.) has granted the
interim relief and has stayed the further proceedings of respective
criminal inquiry cases against the respondents – accused and whereby
has stayed the further investigation with respect to the criminal
proceedings initiated by the petitioner- complainant against the
respondents – original writ petitioners before the High Court –
respondents herein – original accused, the original complainant has
preferred the present appeals.
2.At the outset, it is required to be noted that Special Criminal
Application Nos. 9111 of 2019 and 9475 of 2019 were arising out of FIR
being M. Case No. 2 of 2019 initiated by the appellant – original
complainant. Special Criminal Application No. 9112 of 2019 before the
High Court was arising out of FIR being M. Case No. 3 of 2019. The
private respondents herein – original accused approached the High
Court by way of Special Criminal Application Nos. 9112 of 2019, 9111 of
2019 and 9475 of 2019 to quash the criminal proceedings in exercise of
powers under Article 226 of the Constitution read with Section 482 of the
Cr.P.C. The said special criminal applications were filed before the High
Court on 01.10.2019. Before any further investigation was carried out by
the Investigating Officer, the learned Single Judge of the High Court vide
common order dated 10.10.2019 passed ex-parte ad-interim order
directed that there shall not be any coercive steps taken against the
original writ petitioners – accused. The common interim order dated
10.10.2019 passed in the aforesaid special criminal applications was the
subject matter of special leave petitions before this Court. By order
dated 09.12.2019 while issuing notice to the respondents therein, this
Court stayed the interim order dated 10.10.2019.
In continuation of the order dated 09.12.2019, this Court passed a
further order on 17.12.2019 and observed that it shall be open for the
accused – respondents to seek anticipatory bail in accordance with law,
which may be considered expeditiously. Nothing is on record to show
that thereafter any further proceedings were initiated by the respondents
– accused seeking anticipatory bail. The special leave petitions filed
before this Court against the common order dated 10.10.2019 were
converted into Criminal Appeal Nos. 1657, 1658, 1659 and 1660 of
2021. By a detailed judgment and order dated 17.12.2021 and after
considering the decision of this Court in the case of M/s. Neeharika
Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., AIR 2021
SC 1918, this Court quashed and set aside the interim orders dated
10.10.2019 passed in respective special criminal applications. Despite
the above order passed by this Court thereafter by the impugned orders,
while admitting the respective special criminal applications, the learned
Single Judge of the High Court has again granted the impugned interim
reliefs staying further criminal proceedings and resultantly staying further
investigation. Feeling aggrieved and dissatisfied by the impugned
interim order passed by the High Court granting interim relief and staying
further criminal proceedings and resultantly staying further investigation,
the original complainant has preferred the present appeals.
3.We have heard Shri Harshit Tolia, learned Advocate appearing on
behalf of the petitioner – appellant – original complainant; Shri K.M.
Natraj, learned ASG appearing on behalf of the respondent – State of
Gujarat and Shri P.S. Patwalia and Shri Maninder Singh, learned Senior
Advocates appearing on behalf of the respondents – original writ
petitioners – respondents accused.
4.Shri K.M. Natraj, learned ASG appearing on behalf of the State,
has filed a Status Report on the investigation carried out by the I.O. after
the order passed by this Court dated 09.12.2019 staying the earlier
interim order passed by the High Court dated 10.10.2019. From the
Status Report, it can be seen that the actual investigation has started
only after June, 2020. Even thereafter also, the investigation can be
said to be proceeding in a snail pace. It appears that at every stage, the
investigation has been stalled. It can also be seen that the investigation
has been stalled earlier and even thereafter pursuant to the impugned
order, which cannot be said to be in the interest of the prosecution
and/or investigating agency. As observed by this Court in the earlier
round of litigation (Criminal Appeal Nos. 1657, 1658, 1659 and 1660 of
2021), the investigating agency has the right to investigate the criminal
proceedings and only in rarest of rare cases, the same can be stalled
and/or stayed.
5.After making some submissions, Shri Maninder Singh and Shri
Patwalia, learned Senior Advocates, appearing on behalf of the original
writ petitioners – accused have stated at the Bar that they do not invite
any further reasoned order if this court is intending quashing and setting
aside the impugned interim order passed by the High Court dated
14.02.2022 passed in respective Special Criminal Application Nos. 9112
of 2019, 9111 of 2019 and 9475 of 2019. However, they have requested
for making suitable observations to the effect that the respective special
criminal applications be decided and disposed of in accordance with law
and on its own merits. In that view of the matter, we are not passing any
further detailed reasoned order while quashing and setting aside the
impugned interim order passed by the High Court. However, suffice is to
say that the learned Single Judge of the High Court has seriously erred
in passing the impugned interim orders, which can be said to be in the
teeth of our earlier judgment and order in the case of M/s. Neeharika
Infrastructure Pvt. Ltd. (supra) and even in Criminal Appeal Nos. 1657
to 1660 of 2021 .
6.It appears from the impugned order passed by the High Court that
the learned Single Judge has not properly appreciated and/or
considered our earlier judgment and order passed in M/s. Neeharika
Infrastructure Pvt. Ltd. (supra). Even the learned Single Judge has
also not properly understood the ratio of the decision of this Court in the
case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra). It appears that
the learned Single Judge seems to be of the opinion that after giving
reasons, the High Court can grant an interim stay of further investigation
in a petition seeking quashing of the criminal complaint filed under Article
226 of the Constitution read with Section 482 Cr.P.C. The High Court
has not properly appreciated the principles and the law laid down by this
Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra) .
What is emphasized by this Court in the case of M/s. Neeharika
Infrastructure Pvt. Ltd. (supra) is that grant of any stay of investigation
and/or any interim relief while exercising powers under Section 482
Cr.P.C. would be only in the rarest of rare cases. This Court has also
emphasized the right of the Investigating Officer to investigate the
criminal proceedings. In our earlier judgment and order, in fact, we
abstracted the principles laid down by this Court in the case of M/s.
Neeharika Infrastructure Pvt. Ltd. (supra) in paragraph 4.
7.Despite the earlier judgment and order passed by this Court in the
very criminal proceedings quashing and setting aside the earlier interim
orders passed by the High Court, which came to be set aside by this
Court, again, the learned Single Judge has granted the very same
interim relief, which as observed hereinabove, can be said to be in teeth
of and contrary to our earlier judgment and order in the case of M/s.
Neeharika Infrastructure Pvt. Ltd. (supra) . We are not observing
anything further as the learned Senior Advocates appearing on behalf of
the original writ petitioners – accused have prayed not to pass any
further reasoned order.
8.In view of the above stand taken by the learned Senior Advocates
appearing on behalf of the original writ petitioners before the High Court
and the private respondents herein – original accused recorded
hereinabove and the specific submission made, we set aside the
impugned order dated 14.02.2022 passed in respective Special Criminal
Application Nos. 9112 of 2019, 9111 of 2019 and 9475 of 2019. Meaning
thereby, there shall not be any interim relief during the pendency of the
aforesaid special criminal applications. The Investigating Officer is
directed to complete the investigation at the earliest and preferably
within a period of three months from today and file appropriate
report/charge sheet before the concerned Criminal Court having
jurisdiction. It goes without saying that the High Court shall consider the
special criminal applications in accordance with law and on its own
merits. It is also observed that it will be open for the respective accused
– original writ petitioners to move appropriate applications for seeking
anticipatory bail, as we have observed so in our earlier order dated
17.12.2019 and, if filed, the same be considered in accordance with law
and on its own merits.
Present Appeals are Allowed accordingly. Pending application, if
any also stands disposed of.
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The Supreme Court recently reaffirmed that granting stay on investigation or any other interim relief by the High Court while exercising its powers under Section 482 of the Code of Criminal Procedure (CrPC), should be done only in the rarest of rare cases [Siddharth Mukesh Bhandari v. State of Gujarat and Another].
A Division Bench of Justices MR Shah and BV Nagarathna said that this position been settled in M/s. Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra.
"What is emphasized by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. is that grant of any stay of investigation and/or any interim relief while exercising powers under Section 482 CrPC would be only in the rarest of rare cases. This Court has also emphasized the right of the Investigating Officer to investigate the criminal proceedings," the top court stated.
The Court was hearing an appeal assailing a February 14 decision of the Gujarat High Court which, while admitting the Section 482 plea, had granted interim relief and stayed the criminal proceedings against the respondents.
The respondent-accused had, in 2019, approached the High Court seeking quashing of the criminal proceedings. Before any further investigation could begin, the High Court had on October 10, 2019 granted interim relief and directed that there shall be no coercive steps against the respondents.
However, on December 9, 2019, the Supreme Court had stayed the October 10 order of the High Court and later on December 17, 2021 set aside the High Court's interim order.
Subsequently, the High Court while again admitting the application of the respondent-accused, granted interim relief by staying the criminal proceedings.
The Supreme Court noted that the High Court while passing the order had seriously erred in the teeth of the earlier decision of the apex court in the case of M/s Neeharika Infrastructure Private Limited wherein it was ruled that even in a case where the High Court is prima facie of opinion that an exceptional case is made out for grant of interim stay of further investigation, it has to give brief reasons why such an interim order is warranted.
"The High Court has not properly appreciated the principles and the law laid down by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra). What is emphasized by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra) is that grant of any stay of investigation and/or any interim relief while exercising powers under Section 482 Cr.P.C. would be only in the rarest of rare cases," the Court observed.
While allowing the appeal, the Court observed that:
"Despite the earlier judgment and order passed by this Court in the very criminal proceedings quashing and setting aside the earlier interim orders passed by the High Court, which came to be set aside by this Court, again, the learned Single Judge has granted the very same interim relief, which as observed hereinabove, can be said to be in teeth of and contrary to our earlier judgment and order in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra)."
Therefore, the Apex Court has set aside the February 14, 2022 order of the High Court.
Accordingly, the appeal is allowed.
|
ivil Appeal No. 1372 of 1987.
From the Judgment and Order dated 29.1.1986 of the Rajasthan High Court in Spl.
Appeal No. 336 of 1984.
J. Sorabjee, Roxena Swamy, Sushil Kr.
Jain and L.C. Agarwala for the Appellant.
Anil Dev Singh, Hemant Sharma, C.V.S. Rao, Mrs. Sushma Suri (N.P.) and Ms. A. Subhashini (N.P.) for the Respond ents.
The Judgment of the Court was delivered by VENKATARAMIAH, CJ.
The question for consideration in this appeal is whether an establishment which is manufactur ing carpets is subject to the (Act XIX of 1952) (here inafter referred to as 'the Act ').
The appellant is a part nership firm carrying on the business of 419 manufacturing and selling carpets in the State of Rajasthan at three factories belonging to it.
When steps were taken to direct the appellant to comply with the provisions of the Act by the Regional Provident Fund Commissioner the appel lant contested the applicability of the Act on the ground that the establishment owned by it was not manufacturing 'textiles ' included in Schedule I to the Act.
The Regional Provident Fund Commissioner after giving opportunity of being heard to the appellant passed an order on 27th July, 1979 holding that the business of manufacturing carpets carried on by it made the Act applicable to the appellant as carpets were textiles.
Aggrieved by the said order the appellant filed a petition under section 19A of the Act before the Central Government.
The Central Government passed an order on 4th May, 1981 holding that the appellant 's establishment was engaged in the manufacture of 'textiles ' and accordingly the order of the Regional Provident Commis sioner was upheld.
The appellant thereafter filed a petition under Article 226 of the Constitution before the Rajasthan High Court (Jaipur Bench).
The High Court by its order dated 15th October, 1984 dismissed the writ petition.
The appel lant then appealed to the Division Bench of the High Court and the Division Bench of the Rajasthan High Court dismissed the appeal on 29th January, 1986.
This appeal by special leave is filed against the order of the Division Bench of the High Court of Rajasthan.
The only point urged before us by the learned counsel for the appellant is that the products, namely, carpets which are being manufactured by the appellant did not come within the meaning of the expression 'textiles ' described in Schedule I to the Act and hence the Act was in applicable.
Clause (a) of sub section (3) of section 1 of the Act pro vides that subject to the provisions contained in section 16, the Act applies to every establishment which is a facto ry engaged in any industry specified in Schedule I and in which 20 or more persons are employed.
The relevant part of Schedule I to the Act reads thus: "Any industry engaged in the manufacture of any of the following, namely: Cement.
Cigarettes.
Electrical, mechanical or general engineering products.
Iron and Steel.
Paper.
Textiles (made wholly or in part of cotton or wool or jute or silk, whether natural or artificial . . 420 Clause (d) of the Explanation contained in Schedule I to the Act reads thus: "(d) the expression "textiles" includes the products of carding, spinning, weaving, fin ishing and dyeing yarn and fabrics, printing, knitting and embroidering.
" It is not disputed that was material with which the carpets are made is wool which is one of the materials mentioned in the Schedule, namely, textiles made wholly or in part of cotton or wool or jute or silk, whether natural or artificial.
The activity of manufacturing carpets is generally understood as the weaving of carpets and the man who is engaged in such activity is popularly known as a 'carpet weaver '.
Weaving means to form a fabric by interlac ing yarn on a loom.
It also means the method or pattern of weaving or the structure of a woven fabric.
The warp means yarn arranged length wise on a loom.
The fabric which is woven includes the weft which means yarn woven across the width of the fabric through the length wise yarn.
Thus the activity of the weaving involves passing of the weft through the warp.
While doing so even if there are any knots in the yarn still the activity is weaving.
The mere fact that there is knotting of the yarn, the fabric which is ultimately produced does not cease to be a textile fabric.
The fact that the Handicrafts Board has issued certificate under the Import Trade Control Policy Handbook of Rules that carpet is a product of handicrafts does not in any way improve the matter.
Even then the carpets do not cease to be textiles.
That certificate is not enough since we are very clear that the activity of making carpets though it involves knotting, in substance, amounts to weaving and the carpet is a fabric which is woven.
Thus it comes within the meaning of the expression "textiles:" as explained in clause (d) to the Explanation of Schedule I to the Act.
We are, therefore on the view that the establishment in question comes within Schedule I to the Act.
In Porritts & Spencer (Asia) Ltd. vs State of Haryana, ; this Court held that the concept of 'textiles ' is not a static concept.
It has, having regard to newly developing materials, methods techniques and process es, a continually expanding content and new kinds of fabric may be invented which may legitimately without doing any violence to the language be regarded as textiles.
The word 'textiles ' is derived from Latin 'texere ' which means 'to weave and it means woven fabric.
When yarn, whether cotton, silk, woollen, rayon, 421 nylon or of any other description made out of any other material is woven into a fabric what comes into being is a 'textile ' and is known as such.
Whatever be the mode of weaving employed, woven fabric would be 'textile '.
What is necessary is no more than the meaning of yarn and weaving would mean binding or putting yarn together by some process so as to form a fabric.
A textile need not be of any partic ular size or strength or weight.
The use to which it may be put is also immaterial and does not bear on its character as a textile.
The fact that the 'dryer felts ' are used only as absorbents of moisture in the process of manufacture in a paper manufacturing unit, cannot militate against 'dryer felts ' falling within the category of textiles, if otherwise they satisfy the description of textiles.
It is not necessary to refer to the other decisions cited before us in this case.
The non inclusion of knotting in the Explanation to Schedule defining 'textiles ' is, therefore, immaterial.
No other point was pressed before us in this case.
We, there fore, hold that the Regional Provident Fund Commissioner, the Government of India and the High Court were right in holding that the establishment of the appellant came within the scope of the Act and the appellant was liable to comply with the requirements of the Act in all respects.
The ap peal, therefore, fails and it is dismissed.
G.N. Appeal dismissed.
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The appellant is a partnership firm carrying on business of manufacturing and selling carpets in the State of Rajas than.
It owns three factories.
When the Regional Provident Fund Commissioner took steps to direct the appellant firm to comply with the provisions of the , the appellant con tested the applicability of the Act on the ground that it was not manufacturing textiles included in Schedule I of the Act.
The Regional Provident Fund Commissioner held that the business of manufacturing carpets carried on by the appel lant included textiles and that the Act was applicable to the appellant.
Aggrieved by the said order, the appellant approached the Central Government under section 19A of the Act, which upheld the order of the Regional Provident Fund Commission er.
Thereafter the appellant moved the High COurt under Article 226 of the Constitution.
The writ petition was dismissed.
The appellant preferred an appeal to the Division Bench of the High Court and that appeal was also dismissed.
This appeal, by special leave, is against the order of the Division Bench.
Dismissing the appeal, this Court, HELD: 1.1 The activity of manufacturing carpets is generally understood as the weaving of carpets and the man who is engaged in such activity is popularly known as a 'carpet weaver '.
Weaving means to form a fabric by interlac ing yarn on a loom.
It also means the method or pattern of weaving or the structure of a woven fabric, [420B C] 418 1.2 Though there may be knotting of the yarn, the fabric which is ultimately produced does not cease to be a textile fabric.
The fact that the Handicrafts Board has issued certificate under the Import Trade Control Policy Handbook of Rules that carpet is a product of handicrafts does not in any way improve the matter.
Even then the carpets do not cease to be textiles.
That certificate is not enough since it is very clear that the activity of making carpet though it involves knotting, in substance, amounts to weaving and the carpet is a fabric which is woven.
Thus it comes within the meaning of the expression "textiles" as explained in clause (d) to the Explanation of Schedule I to the Act.
[420D F] 1.3 The non inclusion of knotting in the explanation to Schedule defining 'textiles ' is, therefore, immaterial.
[42ID] Porrits Spencer (Asia) Ltd. vs State of Haryana, ; , relied on.
The Regional Provident Fund Commissioner, the Govern ment of India and the High Court were right in holding that the establishment of the appellant came within the scope of the Act and the appellant was liable to comply with the requirements of the Act in all respects.
[421D]
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(Arising out of S.L.P.(Crl.) Nos. 6854-6855 of 2023)
Leave granted.
2.Heard the learned counsel appearing for the
appellant and the learned senior counsel appearing for
the respondent-State.
3.The present appellant-Niranjan Das was Accused No.2
before the Trial Court. He was convicted by the Trial
Court for the offence punishable under Section 302 of the
Indian Penal Code (IPC). The Trial Court convicted the
appellant as well as the Accused No.1-Subodh Rajbanshi.
It is pertinent to note that both of them were convicted
simplicitor under Section 302 of the IPC and Section 34
IPC was not applied.
4.Separate appeals were preferred by both the
accused. The appeals were heard on 12th May, 2022. In
the impugned judgment delivered on the same day, it is
recorded in the judgment that on the day on which these
appeals were heard, the present appellant-Niranjan Das
was not represented by any advocate. Therefore, the
Division Bench which heard the appeals appointed an
empaneled advocate to espouse the cause of the appellant.
The High Court directed the Secretary of the High Court
Legal Services Authority to regularise the appointment of
the said advocate. It appears that after appointing the
advocate, the Court did not grant time to the advocate to
prepare herself. In the impugned judgment, it is
recorded that the advocate appointed to espouse the cause
of the appellant adopted the arguments made by the
advocate for the co-accused in the other appeal. Another
argument made by the said advocate has been recorded that
it cannot be said that the present appellant shared
common intention with the co-accused to commit the
murder.
5.The learned counsel appearing for the respondent
states that looking to the submissions of the advocate
recorded in the impugned judgment, obviously, the
advocate was ready to argue.
6.This was a case where the appellant was convicted
for the offence punishable under Section 302 of the IPC
and was sentenced to undergo life imprisonment.
Therefore, it was a duty of the Court to give a
reasonable time to the advocate appointed to go through
the file and get ready to assist the Court. Apart from
adopting the submissions made by the co-accused, it
appears that the advocate appointed to espouse the cause
of the appellant made a submission that the appellant did
not share common intention to commit the murder with the
co-accused. The very fact that such submission is made
shows that the advocate was not ready with the matter, as
there was no conviction of the appellant with the aid of
Section 34 of the IPC. Obviously, the advocate was not
aware that Section 34 of the IPC was not invoked by the
Trial Court and therefore, she has argued as if the
appellant was convicted with the aid of Section 34 of the
IPC. This happened obviously because the appointed
advocate was not given time to prepare herself. There
were 20 prosecution witnesses in this case.
7.The object of appointing an advocate to espouse the
cause of the appellant who was unrepresented was to
ensure that justice is done to him. The High Court
decided the appeal on the same day on which the advocate
was appointed. In this case, the advocate appointed to
represent accused was not granted even a reasonable time
to prepare herself. Therefore, the impugned judgment
insofar as relates to the appeal preferred by the
appellant-Niranjan Das is concerned will have to be set
aside and the appeal will have to be remanded to the High
court.
8.The learned counsel appearing for the appellant, on
instructions, states that the appellant will engage his
own advocate and therefore, it is not necessary for the
High Court Legal Services Committee to appoint any
advocate to espouse his cause.
9.Hence, we set aside the impugned judgment dated 12th
May, 2022 confined to Criminal Appeal No.325 of 2008
filed by the appellant-Niranjan Das and remand the said
appeal to the High Court for fresh consideration.
10.We make it clear that the impugned judgment insofar
as it relates to Criminal Appeal No.642 of 2008 preferred
by Subodh Rajbanshi, is not disturbed.
11.The appellant has already undergone incarceration
for a period of more than eight years.
12.Therefore, he deserves to be enlarged on bail on
appropriate terms and conditions, as may be decided by
the Trial Court.
13.We, accordingly, direct that the appellant-Niranjan
Das shall be produced before the Trial Court within a
period of one week from today so that the Trial Court can
enlarge the appellant-Niranjan Das on bail, pending the
final disposal of the Criminal Appeal before the High
Court.
14.We direct that the advocate appointed by the
appellant shall appear before the roster Bench on Monday,
the 20th November, 2023 in the morning session so that the
Bench can fix the appropriate date for hearing. Even the
counsel for the State shall also remain present on that
day.
15.The appeals are partly allowed on the above terms.
16.The Trial Court record sent to this shall be
transmitted back to the High Court.
August 29, 2023.
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The Supreme Court recently set aside a Calcutta High Court decision wherein the High Court had awarded the life sentence to a murder accused, on the very same day that it appointed an advocate to defend the accused [Niranjan Das vs State of West Bengal].
The top court emphasised that courts should give adequate preparation time for legal aid counsel so they can be well-versed with the facts of the case.
In this case, however, the bench of Justices Abhay S Oka and Pankaj Mithal noted that the High Court did not give the legal aid counsel reasonable time to prepare for her case.
"This was a case where the appellant was convicted for the offence punishable under Section 302 of the IPC and was sentenced to undergo life imprisonment. Therefore, it was a duty of the Court to give a reasonable time to the advocate appointed to go through the file and get ready to assist the Court ... The High Court decided the appeal on the same day on which the advocate was appointed. In this case, the advocate appointed to represent accused was not granted even a reasonable time to prepare herself."
The Court added that the objective of appointing a lawyer for an unrepresented accused is to ensure that justice is done to them.
The Supreme Court proceeded to set aside the High Court order and remanded the matter back to the High Court for fresh consideration.
The case involved two persons who were accused in a murder case. One of these accused persons did not have a lawyer to represent him. Therefore, the High Court ordered that a lawyer be appointed for him.
However, the High Court then proceeded to decide on the appeal on the very same day that legal aid counsel was appointed for the unrepresented accused.
In its decision, the High Court upheld the conviction and life sentence imposed on the accused man. This decision was challenged before the Supreme Court.
The Supreme Court noted that both the High Court and the trial court had convicted the accused only for the offence murder and not for the offence of a criminal act done by multiple persons with a common intention (Section 34 of the Indian Penal Code).
However, his legal aid counsel had specifically argued before the High Court that the appellant-accused shared no common intention with co-accused.
This, the Supreme Court inferred, meant that the lawyer was unaware that the trial court did not convict the accused with Section 34.
Notably, the counsel had also adopted the same arguments as that of a co-accused.
Both these factors pointed toward how the legal aid counsel was not given enough time to prepare for the case, the Supreme Court opined.
"Obviously, the advocate was not aware that Section 34 of the IPC was not invoked by the trial court and therefore, she has argued as if the appellant was convicted with the aid of Section 34 of the IPC. This happened obviously because the appointed advocate was not given time to prepare herself," the Court remarked.
The Court proceeded to allow the appeal against the High Court order, which was asked to rehear the matter.
The Court also ordered that the accused be released on bail since he had already undergone over eight years in jail.
Advocates Ranjan Mukherjee, Anindo Mukherjee and Rameshwar Prasad Goyal appeared for the accused, one Niranjan Das.
Senior Advocate Ashok Kumar Panda with advocates Chanchal Kumar Ganguli, Aniket Gupta, Preeti Sirohi and Tuli Ghosh represented the West Bengal government.
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Through: Mr. Sunil Mehta & Mr. Ishan Roy
Choudhary, Advocates.
versus
Thro ugh: Mr. Sanjeev Mahajan, Advocate.
1. The present matter is at the stage of final arguments.
2. At joint consent of the counsels for the parties, the matter was listed
on 16 .04.2024.
3. After the date was given and item No. 11 was taken, the
plaintiff/Anita Kumar i Gupta, who had joined through video conferencing,
abused the Court by saying that “How Could Item No. 11 Be Taken Before
Item No. 10” and also saying that “Ye Saali Kya Kar Rahi Hai, What The
F.... is Going On In This Court” .
4. Such aforesaid derogatory remarks made by the plaintiff/Anita
Kumari Gupta to denigrate the Court are patently contemptuous and show
the complete disregard to the dignity of the Court, despi te the fact that the
counsels representing respective parties were present and had agreed to the
date given i.e., 16.04.2024 for final arguments.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 19/01/2024 at 10:46:20
5. Keeping in view such derogatory remarks lowering the dignity of the
Court, the Suo Moto Contempt is taken.
6. Accordingly, the Show -Cause Notice is issued to the plaintiff/Anita
Kumari Gupta, who is stated to be, at present, living in Sydney, Australia, as
to why she be not punished under the Contempt of Courts Act, 1971.
7. The plaintiff is directed to appear before this Court in person on the
next date of hearing i.e., 16.04.2024.
8. The FRRO, Delhi is also directed to impound the Passport/VISA on
arrival of the plaintiff/Anita Kumari Gupta in case, she comes to India
before the date fixed for hearing and sh e be not permitted to leave the
country without the direction of this Court.
9. Learned counsel for the plaintiff has undertaken to convey this Order
to his party.
10. The High Commission of India at Canberra, Australia is also directed
to communicate t his Order to the plaintiff/Anita Kumari Gupta, who is
stated to be living at present in Sydney, Australia, through Consulate
General of India, Sydney, Australia.
11. List for final arguments on 16.04.2024.
S.Shar ma
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 19/01/2024 at 10:46:20
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The Delhi High Court has initiated suo motu criminal contempt of court case against an Indian woman living in Australia for using derogatory language against a judge and the Court while being logged in through virtual conferencing (VC).
On January 10, one Anita Kumari Gupta was logged into the Court through VC. After a date was given in her matter and the next case was taken up, she used profane language against the Court and the judge, Justice Neena Bansal Krishna.
“How Could Item No 11 Be Taken Before Item No. 10… Ye saali kya kar rahi hai? (What is she doing?) What the f*** is going on in this court,” the woman said as per the Court’s order.
Justice Krishna issued show cause notice to Gupta and ordered her to remain present in person before the Court on April 16.
The Court also ordered the Foreigners Regional Registration Office (FRRO) to impound the passport/visa on arrival of Gupta in case, she comes to India before the date fixed for hearing.
The Court further said that Gupta should not be permitted to leave the country without the direction of this Court.
“The High Commission of India at Canberra, Australia is also directed to communicate this Order to the plaintiff/Anita Kumari Gupta, who is stated to be living at present in Sydney, Australia, through Consulate General of India, Sydney, Australia,” the Court ordered.
The Court passed the order noting that Gupta’s remarks were made even though the counsel representing the parties had agreed to the date given for final arguments.
“Keeping in view such derogatory remarks lowering the dignity of the Court, the suo moto contempt is taken. Accordingly, the show cause notice is issued to the plaintiff/Anita Kumari Gupta, who is stated to be, at present, living in Sydney, Australia, as to why she be not punished under the Contempt of Courts Act, 1971,” the Court ordered.
Advocates Sunil Mehta and Ishan Roy Choudhary appeared for Gupta.
Respondents were represented through Advocate Sanjeev Mahajan.
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1 1.3-BA-st-2386-2020
Rhea Chakraborty, ]
Age: 28 years, Actress, ]
Residing at : 101, Primrose Apartments, ]
Near Ajivasan Hall, Next to SNDT College, ]
Juhu Road, Santacruz (West), ]
Mumbai – 400 049 ]
(Currently lodged at Byculla Prison) ] .... Applicant
Versus
1. The Union of India ]
(Through Intelligence Officer, ]
Narcotics Control Bureau, Mumbai.) ]
2. State of Maharashtra. ] .... Respondents
Mr. Satish L. Maneshinde a/w. Anandini Fernandes, Namita
Maneshinde & Nikhil Maneshinde, for the Applicant.
Mr. Anil C. Singh, Additional Solicitor General a/w. Sandesh Patil,
Shreeram Shirsat, D.P . Singh, Amogh Singh, Aditya Thakkar, Pavan
Patil, Ms.Apurva Gupte, Chintan Shah, Mayur Jaisingh, for
Respondent No.1 – NCB
Mr. Swapnil S. Pednekar, APP , for Respondent No.2 – State.
2 1.3-BA-st-2386-2020
1.This is an application for bail preferred by the Applicant
in connection with C.R. No.16/2020 registered with the Narcotics
Control Bureau, Mumbai (hereinafter referred to as “NCB”) for the
offences punishable under Sections 8(c) read with 20(b)(ii), 22,
27A, 28, 29 and 30 of the Narcotics Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as “NDPS Act”). The
Applicant was arrested on 8.9.2020.
2.I have heard this application along with Bail
Applications (Stamp) No.2184/2020, 2201/2020, 2205/2020 &
2387/2020. Since all these Applications involve common
questions of law and since all these questions were raised and
argued in this application, I am treating this application as the lead
application in this group for deciding the questions of law.
Therefore, the submissions advanced on the questions of law in
other applications are also incorporated in this order.
3.I have heard Mr. Satish L. Maneshinde, learned Counsel
for the Applicant in present application and also for the Applicant
in Bail Application (St.) No.2387/2020 , Mr. Taraq Sayed, learned
3 1.3-BA-st-2386-2020
Counsel for the Applicant in Bail Application (St.) No.2184/2020,
Mr. Rajendra Rathod, learned Counsel for the Applicant in Bail
Application (St.) No.2201/2020 and Mr. Subodh Desai, learned
Counsel for the Applicant in Bail Application (St.) No.2205/2020.
4.Respondent No.1, in this Application, is Union of India
(through Intelligence Officer, NCB), as described in the title of this
Application. I have heard learned Additional Solicitor General Mr.
Anil C. Singh, appearing for Respondent No.1 in all these
Applications.
5.This application cannot be decided without addressing
the questions of law argued before me. Therefore, I have heard all
the learned Counsel extensively on the questions of law as well as
on facts.
6.The allegations against the present Applicant, according
to the investigating agency’s case are set out in the affidavit-in-
reply dated 28.9.2020 filed on behalf of Respondent No.1. The
facts mentioned in that affidavit-in-reply are as follows.
4 1.3-BA-st-2386-2020
a)On 28.08.2020, acting on a secret information, a
team of NCB apprehended one Abbas Ramzan Ali Lakhani
possessing 46 grams of Mariguana/Ganja at Old Kurla Gaon.
Abbas told the team that he had purchased the drug from one
Karn Arora, resident of Powai. On this basis, Karn Arora was
apprehended and 13 grams of Ganja was recovered from his
possession. Both of them were arrested.
b)Based on the disclosures made by Abbas Lakhani and Karn
Arora, premises of one Zaid Vilatra was
searched. Indian currency of Rs.9,55,750/- and foreign
currency of 2081 Us Dollars, 180 UK Pounds and UAE 15
Dirhams was seized under panchanama dated 1.9.2020.
Zaid Vilatra’s statement was recorded. Zaid Vilatra disclosed that
the seized amount was the sale proceeds of the contraband and
that he had supplied Marijuna, Ganja, Bud and psychotropic
substances to many persons. Zaid Vilatra disclosed few names
with their details. In Zaid Vilatra’s voluntary statement, name of
Abdel Basit Parihar (Applicant in B.A.(Stamp) No.2184/2020) as
a receiver of Ganja/Marijuana, was revealed.
5 1.3-BA-st-2386-2020
c)Abdel Basit Parihar’s statement was recorded. He stated
that he purchased and sold Marijuana/ Ganja
through Zaid Vilatra and others. He used to supply drugs from
Zaid Vilatra and one Kaizan Ebrahim as per instructions of Showik
Chakarborty (Applicant in B.A.(Stamp) No.2387/2020). There
were other instances when Abdel Basit
Parihar facilitated supply of drugs. He was in contact
with Samuel Miranda (Applicant in B.A.(Stamp) No.2205/2020)
and Showik Chakarborty. As per the NCB’s case, Abdel Basit
Parihar is an active member of a drug syndicate connected with
high-profile personalities and drug suppliers. He used to pay
and receive money via credit cards/cash and payment
gateways. Abdel Basit Parihar was arrested on 3.9.2020. In his
voluntary statement, Abdel Basit Parihar disclosed the name of
Kaizan Ebrahim as a supplier of Charas/Hashish.
d)Based on disclosure by Abdel Basit Parihar; Kaizan
Ebrahim’s premises were searched. During the search, NCB
recovered 0.5 Grams of dark brown substance suspected to be
Hashish/Charas. Kaizan Ebrahim’s voluntary statement was
6 1.3-BA-st-2386-2020
recorded and he was arrested.
e)Kaizan Ebrahim in turn disclosed that Showik Chakarborty
used to direct him to deliver contraband to Dipesh Sawant
(Applicant in B.A.(Stamp) No.2201/2020). V oluntary statements
of Kaizan Ebrahim and Abdel Basit Parihar revealed the name of
Samuel Miranda.
f)Samuel Miranda’s voluntary statement was recorded and
he was arrested on 4.9.2020.
g)Showik Chakraborty’s voluntary statement was recorded
wherein he has allegedly disclosed that Abdel Basit Parihar
provided drugs to Dipesh Sawant through Kaizan Ebrahim. On the
basis of this material, Showik Chakraborty was arrested on
h)Dipesh Sawant’s name was revealed in the statements of
Kaizan Ebrahim and Abdel Basit Parihar. Dipesh Sawant’s
statement was recorded. He has stated that he got contact details
of a Weed and Hashish dealer from Showik Chakraborty and
Kaizan. Even Dipesh Sawant was arrested on 5.9.2020.
i)In his voluntary statement, Kaizan Ebrahim disclosed the
7 1.3-BA-st-2386-2020
name of Anuj Keshwani as a supplier of Ganja/Marijuana. In his
statement, he mentioned about purchase and sale of Marijuana/
Ganja, Charas and LSD. NCB’s case is that Anuj Keshwani used to
procure drugs from Rigel Mahakala for selling them to Kaizan
Ebrahim. There were instances where Anuj Keshwani facilitated
supply of drugs and he was in contact with Kaizan Ebrahim. Anuj
Keshwani’s statement was recorded and he was arrested on
j)The affidavit-in-reply further mentions that from Anuj
Keshwani, 585 grams of Charas, 270.12 grams of Ganja, 3.6 grams
of THC and 0.62 grams (0.1 gram was commercial quantity) of
LSD; apart from cash of Rs.1,85,200/- were recovered.
k)This recovery from Anuj Keshwani is important, because
according to NCB, the entire case, therefore, is based on recovery
of commercial quantity of LSD and, hence, it is not a case of
recovery of small quantity of narcotic drugs or psychotropic
substance.
l)The affidavit further mentions that Showik Chakraborty’s
statement revealed that he used to facilitate delivery of drugs
8 1.3-BA-st-2386-2020
through Abdel Basit Parihar from Kaizan Ebrahim and Zaid. These
deliveries used to be received by the aides of Sushant Singh
Rajput. It is the case of NCB that every such delivery
and every payment made in that behalf was in conscious
knowledge of the present Applicant. Samuel Miranda’s statement
mentions that he used to procure drugs on directions of Sushant
Singh Rajput and the present Applicant. According to him, the
financial matters in this regard were dealt by the Applicant and
Sushant Singh Rajput.
m)In his statement, Dipesh Sawant has disclosed that he used
to receive drugs for Sushant Singh Rajput on his directions
on several occasions and the present Applicant also gave similar
instructions. According to him, financial issues for purchase
of drugs were dealt by Sushant Singh Rajput and the
present Applicant. Dipesh Sawant himself used to receive drugs
along with Samuel Miranda for consumption by Sushant Singh
Rajput.
n)Based on these disclosures, the Applicant was summoned
and her voluntary statement under Section 67 of NDPS Act was
9 1.3-BA-st-2386-2020
recorded on 6.9.2020, 7.9.2020 and 8.9.2020. According to NCB,
the Applicant acknowledged the statements of these accused and
explained her own role. It is the case of NCB that during her
statement, the Applicant revealed about her involvement in
procurement of drugs and financing of illicit drug dealing. Her
statement also mentions instructions given to Samuel Miranda,
Dipesh Sawant and Showik Chakraborty in this regard. Thus,
according to NCB, the Applicant was an active member of a drug
syndicate connected with drug supplies. She was a prominent
member of supply chain of drugs to Sushant Singh Rajput and
she was handling finances also. It is, therefore, NCB’s case that the
Applicant used to procure drugs for Sushant Singh Rajput and that
she used to manage finances along with Sushant Singh Rajput for
drug procurement. Based on this material, the Applicant was
arrested on 8.9.2020.
o)Further investigation revealed that in
March 2020, the Applicant’s brother Showik Chakraborty had told
Samuel Miranda to get bud for Sushant Singh Rajput and arranged
the contact of Zaid Vílatra through his associate Abdel Basit
10 1.3-BA-st-2386-2020
Parihar. For this drug consignment, the present Applicant’s debit
card of HDFC Bank was provided to Samuel Miranda. Using that
debit card, Samuel Miranda withdrew Rs.10,000/- for the bud
of 5 Grams.
p)It is the further case of NCB that on 16.3.2020, in
pursuance to the conspiracy between the Applicant and Showik
Chakraborty, they assessed the requirement of ganja for Sushant
Singh Rajput. NCB has the WhatsApp chats to that effect. On
17.3.2020, Showik Chakraborty shared Samuel Miranda's contact
number with Abdel Basit Parihar and drug was delivered to
Samuel Miranda by Abdel Basit's contact, Zaid Vilatra, near Eat
Around Corner in Bandra. On 15.4.2020, Showik Chakraborty
facilitated delivery of charas in conspiracy with Samuel Miranda.
Charas was delivered to Dipesh Sawant by Abdel Basit's
contact Kaizan Ebrahim. According to NCB, Showik’s disclosure
showed that he used cash/card of the Applicant for purchase of
drugs with knowledge of the Applicant. It is specifically mentioned
in the affidavit that Showik was controlling the supply of drugs
and financing of such illicit drug dealings, directly as well as
11 1.3-BA-st-2386-2020
indirectly with full knowledge of the Applicant. Showik
Chakraborty had received delivery of weed from one Karamjeet
(KJ) through his friend Suryadeep Malhotra at Showik and the
Applicant’s residence. Showik had received consignments of drugs
from Samuel Miranda. The affidavit further mentions that Showik
had bank transactions with drug supplier Dwayne Fernandes
regarding drug purchase. NCB has bank account statement to that
effect.
q)Thus, according to NCB, Showik Chakraborty was
facilitating, dealing, financing and receiving
the drug deliveries at his residence and at the residence of Sushant
Singh Rajput.
r)Dipesh Sawant’s statement revealed that on 17.3.2020, on
the directions of Showik, he received the delivery
of Bud/Ganja in Bandra from Zaid. At that time, Samuel Miranda
was with him.
s)On 17.4.2020, Showik Chakraborty and the Applicant
asked Dipesh Sawant to receive Charas/hashish from Kaizan. The
delivery took place near Mont Blanc building. Dipesh Sawant has
12 1.3-BA-st-2386-2020
paid Rs. 7000/- to Kaizan which was given by the present
Applicant.
t)On 1.5.2020, Showik asked Dipesh to receive Ganja from
Dwyane and gave him Dwayne’s contact number. On 2.5.2020,
Dipesh Sawant received Charas from Dwayne. In the first week of
June, Dipesh Sawant received Ganja from a delivery-boy by
named Rishikesh Pawar for Sushant Singh Rajput and the
Applicant.
u)It is alleged that the Applicant gave Rs.10,000/- to Dipesh
Sawant which he paid to Dwayne outside Mont Blanc building and
received two packets of Ganja of 25 grams each. Dwayne sent his
bank details to Dipesh Sawant, who in turn shared them with
Showik Chakraborty for balance payment. The Applicant had told
Dipesh Sawant that one of the packets would be taken by Showik
Chakraborty.
7. Based on these allegations and material, NCB has
stated in their affidavit that there was sufficient material against
the present Applicant to show that she was involved in financing
the illicit trafficking of drugs and was dealing in it. It is further
13 1.3-BA-st-2386-2020
their case that the Applicant was aware that Sushant Singh Rajput
was engaged in consumption and, yet, she harboured him and
concealed him whilst he was engaged in consuming drugs.
According to NCB, this would amount to harbouring. It is their
case that the applicant allowed her residence for drug storage and
helped Sushant Singh Rajput in procuring drugs for consumption.
The Applicant not only regularly dealt in, but, also financed illicit
trafficking of drugs and that she was a conspirator with other
accused in the present offence involving commercial quantity of
contraband i.e LSD, which was recovered from co-accused Anuj
Keshwani.
8. The NCB claims that they have ample material
including electronic evidence that the Applicant was involved in
drug trafficking. She had facilitated in drug deliveries and
payment through credit card / cash / payment gateways for the
contraband and, therefore, the Applicant was not entitled for bail.
It is mentioned that if she was released on bail at this crucial stage
of investigation, it would hamper further investigation. It is
specifically mentioned that the drugs which were financed by her
14 1.3-BA-st-2386-2020
were not meant for her personal consumption. The drugs were
supplied for consumption by some other person. Thus, according
to NCB, Section 27A of NDPS Act was squarely applicable.
9. It was pointed out by the learned Counsel for the
Applicant that the Applicant’s statements were allegedly recorded
on 6.9.2020, 7.9.2020 and 8.9.2020. According to him, she
retracted such statements on 8.9.2020 and 9.9.2020.
10. The Applicant had preferred Criminal Bail Application
No.1871/2020 before the Special Court for NDPS at Greater
Mumbai for her release on bail. This Application was rejected by
the learned Special Judge vide his order dated 11.9.2020. The
learned Judge specifically observed that Section 27A operated
against her and at this stage it was not possible to observe that her
statement was recorded under coercion and hence was
inadmissible. The learned Judge referred to Section 37 of NDPS
Act. He also referred to recovery of commercial quantity of LSD
from accused Anuj Keshwani. It was further observed that the
investigation was at a preliminary stage and from the available
record, it could not be said that, there were no reasonable grounds
15 1.3-BA-st-2386-2020
to connect the Applicant/Accused. According to the learned
Judge, bar under Section 37 of NDPS Act operated and, therefore,
she was not entitled for release on bail. It was also observed that if
she was released on bail, then she would alert others involved in
the offence and that they would destroy the evidence. According
to the learned Special Judge, there was possibility of tampering of
evidence. On these reasons, her bail application was rejected.
11. In this background, the Applicant has approached this
Court for her release on bail.
12. Following are the submissions made by Mr. Maneshinde
in support of this Application. These submissions will be
discussed, in detail, at their proper place in the following
paragraphs when I give my reasons.
i.Mr. Maneshinde basically submitted that no contraband was
recovered from the Applicant. She cannot be connected with
recovery of any commercial quantity of any contraband. She
16 1.3-BA-st-2386-2020
cannot be connected even with an intermediate quantity of any
contraband. At the highest, there are allegations that she was
connected with the offence because she helped in procuring drugs
for personal consumption by Sushant Singh Rajput. There was
nothing to show that such consumption allegedly facilitated by the
present Applicant, exceeded small quantity of contraband.
Therefore, according to Mr. Maneshinde, the offences are bailable
as far as the present Applicant is concerned, and hence, she is
entitled to be released on bail as a matter of right.
ii.Mr. Maneshinde submitted that Section 27A is not applicable
against the present Applicant. She cannot be said to have financed
any illicit traffic of drugs. She cannot be said to have harboured
any such person mentioned under Section 27A of NDPS Act.
Sushant Singh Rajput had enough funds and he did not need
financial help from the Applicant to procure drugs. He further
submitted that when she was arrested, NCB did not even seek her
custody for investigation purposes and she was straightway
remanded to judicial custody. This shows that her custody for
investigation purposes was not required.
17 1.3-BA-st-2386-2020
iii.Mr. Maneshinde further submitted that Anuj Keshwani has
no connection with the Applicant or her brother Showik
Chakraborty. Therefore, recovery effected from him can not be
held as a circumstance against the present Applicant.
iv.Mr. Maneshinde pointed out that even as per NCB’s case,
Sushant Singh Rajput was the only consumer of drugs in the
house. There were four others staying with Sushant Singh Rajput
from March to June, 2020, namely, Dipesh Sawant, Samuel
Miranda, one Neeraj who was a cook and one Peethani who was a
friend of Sushant Singh Rajput.
v.Sushant Singh Rajput’s phone was not collected. Hence, one
material link is missing.
vi.It was not NCB’s case that Sushant Singh Rajput became
addicted to drugs only after the Applicant came in his life.
According to Mr. Maneshinde there was material to show that he
was already addicted to drugs. The affidavit-in-reply of the
Respondent, at the highest, shows that the Applicant had spent
about Rs.27,000/-. There was nothing to show that such money
was actually used for procuring drugs. The contraband was not
18 1.3-BA-st-2386-2020
seized from Sushant Singh Rajput’s house and there is no trace of
any such delivery of contraband.
vii.Mr. Maneshinde submitted that Sushant Singh Rajput was
financially sound. He was residing in his own house. Therefore, by
no stretch of imagination, can it be said that the Applicant
harboured him or that she gave him shelter.
viii.According to Mr. Maneshinde, at the highest, the Applicant’s
role was that of an abettor in the main offence of consumption. In
case of consumption of small quantity, the consumer can be granted
immunity. Therefore, the abettor in such cases cannot be punished
more severely.
ix.Lastly, Mr. Maneshinde submitted that NCB had no authority
to conduct the investigation in this case as the order passed by the
Hon’ble Supreme Court transferring the case involving death of
Sushant Singh Rajput to CBI bars investigation by any agency
other than CBI.
19 1.3-BA-st-2386-2020
13. As against the arguments advanced by Mr. Maneshinde,
learned ASG made his submissions on facts based on the affidavit
filed on behalf of Respondent No.1. He relied on the facts
mentioned in the affidavit, which are reproduced hereinabove, to
contend that all the serious offences are made out against the
present Applicant and, therefore, she is not entitled to be released
on bail.
14. The learned ASG strenuously made his submissions on
various aspects of law which I shall deal with, when I discuss those
questions of law.
15. Learned ASG submitted that the contention of Mr.
Maneshinde that NCB was not authorized to conduct investigation
is not correct. According to learned ASG, the investigation in this
case was entirely on a different subject matter. Consumption of
drugs by Sushant Singh Rajput was only one of the angles of entire
investigation; and that angle was totally unconnected with his
death. He submitted that the Court will have to look at the totality
20 1.3-BA-st-2386-2020
of the case. The drug abuse has to be controlled and stopped in
every field. People have to be encouraged to maintain good health.
He submitted that the offence under NDPS Act is worse than
murder or culpable homicide and it should be dealt with severely.
16. Learned ASG submitted that this investigation is started
by arrest of Abbas Lakhani, who was totally unconnected with
Sushant Singh Rajput. According to learned ASG, the youth of this
country look at their role models for inspiration and when they are
involved in such offences, they should be punished severely so that
it would be a lesson for everyone else.
17. Learned ASG relied on the statement of Objects and
Reasons of the main Act and its subsequent amendments. He also
relied on interpretation of the Hon’ble Supreme Court in many
cases emphasizing the Objects and Reasons of the Act. He
submitted that, as of today, twenty accused are arrested and they
are all inter-linked with each other. According to learned ASG,
recovery of contraband was not an absolute requirement for
proceeding with investigation and prosecuting the accused. At this
stage, the statements recorded under Section 67 of NDPS Act were
21 1.3-BA-st-2386-2020
sufficient and could be relied on for conducting further probe.
According to learned ASG, the Applicant was actively giving
instructions, making payments and facilitating procurement of
drugs. Her acts fell within the meaning of ‘financing’ and
‘harbouring’ as mentioned under Section 27A of the NDPS Act.
18. As Mr. Maneshinde has raised the basic issue as to
whether NCB was competent to conduct this investigation, this
issue needs to be decided first. According to Mr. Maneshinde, the
Hon’ble Supreme Court has transferred the investigation related to
Sushant Singh Rajput’s death to CBI. Mr. Maneshinde’s contention
is that all other cases registered in connection with that incident
are required to be transferred to CBI and that CBI alone was the
proper agency who could have investigated the subject matter of
this investigation conducted by NCB. Mr. Maneshinde relied on the
directions given by the Hon’ble Supreme Court in the case of Rhea
Chakraborty Vs. State of Bihar & Ors.1 Paragraph-41 of the said
order dated 19.8.2020 reads thus :
1Decision of Hon’ble Supreme Court dated 19.8.2020 in Transfer Petition (Crl.)
No.225/2020
22 1.3-BA-st-2386-2020
“41. In such backdrop, to ensure public confidence in the
investigation and to do complete justice in the matter,
this Court considers it appropriate to invoke the
powers conferred by Article 142 of the Constitution.
As a Court exercising lawful jurisdiction for the
assigned roster, no impediment is seen for exercise of
plenary power in the present matter. Therefore while
according approval for the ongoing CBI investigation,
if any other case is registered on the death of the actor
Sushant Singh Rajput and the surrounding
circumstances of his unnatural death, the CBI is
directed to investigate the new case as well. It is
ordered accordingly.”
19. On the other hand, learned ASG strongly urged that the
Hon’ble Supreme Court has directed that the CBI should investigate
any other case registered on the death of actor Sushant Singh
Rajput and the surrounding circumstances of his unnatural death.
According to learned ASG, the present investigation does not relate
to the death of Sushant Singh Rajput and it does not even relate to
the surrounding circumstances of his unnatural death. He also
submitted that the investigation in this case has started after secret
information was received and the first person, namely, Abbas
Lakhani was arrested. The investigation led to various disclosures
and recoveries. Consumption of drugs by Sushant Singh Rajput
was only one part of the investigation. The investigation ran deep
23 1.3-BA-st-2386-2020
into uncovering a chain of illicit traffic in drugs.
20. In my opinion, the contentions raised by learned
ASG will have to be accepted. The subject matter of the
investigation conducted by the NCB is different. It started after
receipt of information and after arrest of Abbas Lakhani. During
the course of this investigation, incidentally it was found that
Sushant Singh Rajput used to procure drugs. For that purpose,
many others helped him. This investigation led to arrest of many
other dealers in illicit traffic of drugs who are unconnected with the
death of Sushant Singh Rajput. In this view of the matter, I do not
find any force in the submissions of Mr. Maneshinde that NCB is not
empowered to investigate into this offence, which is a totally
different subject matter.
21. Since this is an application for bail in respect of offences
punishable under the NDPS Act, the provisions of that Act are
required to be considered carefully. The bail provisions under the
NDPS Act are mentioned under Section 37 of that Act. Section 37
reads thus :
24 1.3-BA-st-2386-2020
“37. Offences to be cognizable and non-bailable- (1)
Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this
Act shall be cognizable;
(b) no person accused of an offence
punishable for offences under section
19 or section 24 or section 27A and
also for offences involving
commercial quantity shall be released
on bail or on his own bond unless--
(i) the Public Prosecutor has
been given an opportunity
to oppose the application
for such release, and
(ii) where the Public Prosecutor
opposes the application, the
court is satisfied that there
are reasonable grounds for
believing that he is not
guilty of such offence and
that he is not likely to
commit any offence while
on bail.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time
being in force, on granting of bail. ”
22. As per requirements of this Section, the Court has to
give opportunity to the Public Prosecutor to oppose the application
for such relief. Such opportunity is given in the present case as I
have heard learned ASG extensively. He has opposed this
application. The second requirement is that, the Court should be
satisfied about the two conditions. There should be reasonable
25 1.3-BA-st-2386-2020
grounds for believing that the Applicant is not guilty of such
offence and the Applicant is not likely to commit any offence while
on bail. Therefore, the Court will have to consider whether these
two conditions are satisfied. However, these requirements are
applicable only where the rigours of Section 37 mentioned in
Clause (b) of Sub-Section (1) of Section 37 are applicable in the
case. This view is consistently taken by the Hon’ble Supreme
Court. The Hon’ble Supreme Court in the case of Union of India Vs.
Rattan Mallik alias Habul2 has dealt with this aspect in Paragraphs-
12, 13 & 14. They are as follows:
“12. It is plain from a bare reading of the non obstante
clause in Section 37 of the NDPS Act and sub-
section (2) thereof that the power to grant bail to a
person accused of having committed offence
under the NDPS Act is not only subject to the
limitations imposed under Section 439 of the
Code of Criminal Procedure, 1973, it is also
subject to the restrictions placed by clause (b) of
sub-section (1) of Section 37 of the NDPS Act.
Apart from giving an opportunity to the Public
Prosecutor to oppose the application for such
release, the other twin conditions viz. (i) the
satisfaction of the court that there are reasonable
grounds for believing that the accused is not guilty
of the alleged offence; and (ii) that he is not likely
to commit any offence while on bail, have to be
satisfied. It is manifest that the conditions are
26 1.3-BA-st-2386-2020
cumulative and not alternative. The satisfaction
contemplated regarding the accused being not
guilty, has to be based on "reasonable grounds".
13. The expression "reasonable grounds" has not been
defined in the said Act but means something more
than prima facie grounds. It connotes substantial
probable causes for believing that the accused is
not guilty of the offence he is charged with. The
reasonable belief contemplated in turn, points to
existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that
the accused is not guilty of the alleged offence
(vide Union of India v. Shiv Shanker Kesari,
(2007) 7 SCC 798). Thus, recording of satisfaction
on both the aspects, noted above, is sine qua non
for granting of bail under the NDPS Act.
14. We may, however, hasten to add that while
considering an application for bail with reference
to Section 37 of the NDPS Act, the court is not
called upon to record a finding of “not guilty". At
this stage, it is neither necessary nor desirable to
weigh the evidence meticulously to arrive at a
positive finding as to whether or not the accused
has committed offence under the NDPS Act. What
is to be seen is whether there is reasonable ground
for believing that the accused is not guilty of the
offence(s) he is charged with and further that he is
not likely to commit an offence under the said Act
while on hail. The satisfaction of the court about
the existence of the said twin conditions is for a
limited purpose and is confined to the question of
releasing the accused on bail.”
deciding the present Application.
27 1.3-BA-st-2386-2020
23. I need to decide following questions in this application.
I. Whether the offences alleged against the Applicant are
bailable. This question needs to be decided because the
Applicant is claiming her release on bail as a matter of
right.
II. If the offences are non-bailable, then, as to whether
rigours mentioned in Section 37(1)(b) of NDPS Act are
applicable.
III. If such rigours are not applicable and if the offences are
non-bailable then whether the Court should exercise its
discretion to grant or refuse bail.
24. The applicant has vehemently contended that the
allegations, at the highest, show that the offence is a bailable
offence and the Applicant could not have been detained in custody
since the Applicant was ready and willing to furnish bail.
25. This issue is important and, therefore, I am examining
this issue in detail. In support of his contention that the offences
28 1.3-BA-st-2386-2020
involving small quantities are bailable, Mr. Maneshinde relied on a
judgment of a Single Judge of this Court in the case of Stefan
Mueller Vs. State of Maharashtra3. In this case, it was held that the
offences involving small quantities of contraband were bailable
offences.
relied on by a Division Bench of High Court of Delhi in the case of
Minnie Khadim Ali Kuhn Vs. State NCT of Delhi and others4
Mueller (supra) has observed that the heading or the marginal note
of Section 37 reads as “Offences to be cognizable and non-
bailable”. However, the language of Section 37 itself mentions that
every offence punishable under this Act shall be cognizable, but,
there is no such similar sentence mentioning that every offence
punishable under NDPS Act shall be non-bailable.
explaining that marginal note, heading or title of a Section has a
3Passed in Criminal Writ Petition No.2939/2009 decided on 23.6.2010 [Bombay High
Court]. It is also reported in 2010 SCC OnLine Bom 1974
4Passed in WP (CRL) No.338/2012 & CRL. M.A. No.2824/2012 [Delhi High Court]
29 1.3-BA-st-2386-2020
limited role to play in the construction of statutes. In cases of
conflict between the plain language of the provisions and the
meaning of the heading or title, the heading or title would not
control the meaning which is clearly and plainly discernible from
the language of the provision thereunder.
Legislature has not declared specifically under Section 37 that all
the offences under the Act shall be non-bailable, the provisions of
Cr.P .C. are required to be looked into to find out whether the
offences under NDPS Act are bailable or not. The learned Single
Judge thereafter referred to Part-II of the Schedule to the Code of
Criminal Procedure, 1973 (for short, ‘Cr.P .C.’), which gives
classification of offences against other laws declaring them to be
bailable or non-bailable. This classification under Part II of the
Schedule to Cr.P .C. mentions that the offences in other laws are
bailable if they are punishable with imprisonment for less than
three years or with fine only. Therefore, according to the learned
Judge, since the offences involving small quantity of the
contraband were punishable for sentences less than three years,
30 1.3-BA-st-2386-2020
these offences would be bailable. In the same judgment, it was
further held that in bailable offences, even conditions cannot be
imposed on the accused in view of provisions of Section 436 of
26. In this view of the aforesaid reasoning, it is necessary
to consider this question in little more detail.
27. When the Act was brought in force in the year, 1985,
the preamble of the Act read thus:
“An Act to consolidate and amend the law
relating to narcotic drugs, to make stringent
provisions for the control and regulation of
operations relating to narcotic drugs and
psychotropic substances and for matters
connected therewith”
28. At that time, Section 37 of that Act read thus:
“37. Offences to be cognizable.
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), every offence
punishable under this Act shall be cognizable.”
29. Thus, there was no mention in the Act itself as to
whether the offences would be bailable or non-bailable. Therefore,
obviously to consider this aspect, recourse needed to be taken to
the provisions of Cr.P .C. i.e. Part II of its Schedule. It is important to
31 1.3-BA-st-2386-2020
note that the Act, as it stood then in 1985, Section 27 provided
punishment for illegal possession in small quantity for personal
consumption of a contraband and under that Section the maximum
punishment was one year. Similarly Sections 26 and 31 provided
lesser punishments. All the other offences, provided punishment of
rigorous imprisonment for a term which was not less than ten
years. Thus, there were bailable as well as non-bailable offences
mentioned under the NDPS Act in 1985, applying Part II of
Schedule of Cr.P .C..
30. Subsequently, the Legislature felt that though the major
offences were non-bailable by virtue of level of punishment, on
technical grounds the drug offenders were being released on bail.
Therefore, it was felt necessary to make the offences cognizable
and non-bailable. This is mentioned in the Statement of Objects
and Reasons dated 29.11.1988 for amendments carried out in the
Act. The opening paragraph of Statement of Objects and Reasons
reads thus :
“In recent years, India has been facing a problem of
transit traffic in illicit drugs. The spill-over from such
traffic has caused problems of abuse and addiction.
The Narcotic Drugs and Psychotropic Substances Act,
32 1.3-BA-st-2386-2020
1985 provides deterrent punishments for drug
trafficking offences. Even though the major offences
are non-bailable by virtue of the level of punishments,
on technical grounds, drug offenders were being
released on bail. In the light of certain difficulties
faced in the enforcement of the Narcotic Drugs and
Psychotropic Substances Act, 1985, the need to amend
the law to further strengthen it, has been felt.”
Reasons reads thus:
“2. A Cabinet Sub-Committee which was constituted
for combating drug traffic and preventing drug
abuse, also made a number of recommendations
for strengthening the existing law. In the light of
the recommendations of the Cabinet Sub-
Committee and the working of the Narcotic Drugs
and Psychotropic Substances Act, in the last three
years, it is proposed to amend the said Act. These
amendments, inter alia, provide for the
following :-
(vii) to provide that the offences shall be
cognizable and non-bailable.”
31. Accordingly, Section 37 was amended. The marginal
note of the amendment reads “Offences to be cognizable and non-
bailable”; and the Section 37 after 1988 amendment (w.e.f.
29.5.1989) itself reads thus:
33 1.3-BA-st-2386-2020
"37. (1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973,-
(a) every offence punishable under this Act
shall be cognizable;
(b) no person accused of an offence
punishable for a term of imprisonment of
five years or more under this Act shall be
released on bail or on his own bond
unless-
(i) the Public Prosecutor has been given
an opportunity to oppose the application
for such release, and
(ii) where the Public Prosecutor opposes
the application, the court is satisfied
that there are reasonable grounds for
believing that he is not guilty of such
offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified
in clause (b) of sub-section (1) are in addition to
the limitations under the Code of Criminal
Procedure, 1973 or any other law for the time
being in force on granting of bail".
provisions for bail for offences under NDPS Act. The rigours were
introduced for offences punishable with imprisonment of five years
or more. Sub-Section (2) mentioned that the limitations on
granting bail were in addition to the limitations under Cr.P .C. or any
other law for the time being in force.
34 1.3-BA-st-2386-2020
32. Section 37 was further amended in the year 2001. At
that time, sentencing structure was introduced depending on the
quantity of drugs in respect of certain penal Sections of NDPS Act.
The first paragraph of the Statement of Objects and Reasons of
2001 amendment reads thus :
“The Narcotic Drugs and Psychotropic Substances Act,
1985 provides deterrent punishment for various
offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. Most of the offences
invite uniform punishment of a minimum
ten years rigorous imprisonment which may extend up
to twenty years. While the Act
envisages severe punishments for drug traffickers, it
envisages reformative approach towards
addicts. In view of the general delay in trial it has been
found that the addicts prefer not to
invoke the provisions of the Act. The strict bail
provisions under the Act add to their
misery. Therefore, it is proposed to rationalise the
sentence structure so as to ensure that
while drug traffickers who traffic in significant
quantities of drugs are punished with
deterrent sentences, the addicts and those who commit
less serious offences are sentenced
to less severe punishment. This requires rationalisation
of the sentence structure provided
under the Act. It is also proposed to restrict the
application of strict bail provisions to those
offenders who indulge in serious offences.”
reads as mentioned hereinbefore.
35 1.3-BA-st-2386-2020
33. Thus, it can be seen that in the year 1985, Cr.P .C.
governed the provisions of bail for NDPS offences. By the
amendment carried in the year 1989 (w.e.f. 29.5.1989), for the first
time, the provisions of Cr.P .C. were excluded by specifically
introducing a non obstante clause excluding application of Cr.P .C.
for grant of bail. If there was inconsistency between the NDPS Act
and Cr.P .C., the provisions of NDPS Act were to prevail.
34. In the year 2001, the Act was further amended.
However, significantly the structure of Section 37 did not change.
The only major difference was that the provisions for grant of bail
were made less severe for offences involving quantities less than
the commercial quantity of a contraband. In addition, of course,
the rigours did apply to Sections 19, 24 and 27A. As observed by
the learned Single Judge in Stefan Mueller (supra), there was no
specific sentence categorically stating that every offence punishable
under the NDPS Act was non-bailable. The title was - “offences to
be cognizable and non-bailable”. The same position existed before
2001 between 1989 to 2001 as well.
35. In the 1985 Act except Sections 26, 27 and 32, all other
36 1.3-BA-st-2386-2020
offences were non-bailable as per the schedule of Cr.P .C. and yet
necessity was felt to make offences non-bailable as mentioned in
the Statement of Objects and Reasons. The concept of small
quantity was already there in the then existing Section 27.
Therefore, the amendment to Section 37 in the year 1989 and then
in the year 2001 will not be affected by concept of “small quantity”
introduced in sentencing structure of other penal sections.
36. In my opinion, the situation is completely clarified by a
Constitution Bench of the Hon’ble Supreme Court in the case of
State of Punjab Vs. Baldev Singh5. The Constitution Bench was
deciding the ambit and scope of Section 50 of the NDPS Act. The
Court was deciding various facets of Section 50 of the NDPS Act.
While deciding this issue, the Hon’ble Supreme Court considered as
to why this Act was brought in force and also considered other
provisions and as to how these provisions were interpreted. The
entire scheme of the Act was considered in detail. For the purpose
of deciding the present issue, two paragraphs can be
advantageously reproduced here. Paragraphs-3 and 4 read thus :
5(1999) 6 Supreme Court Cases 172
37 1.3-BA-st-2386-2020
“3. Drug abuse is a social malady. While drug
addiction eats into the vitals of the society, drug
trafficking not only eats into the vitals of the
economy of a country, but illicit money generated
by drug trafficking is often used for illicit
activities including encouragement of terrorism.
There is no doubt that drug trafficking, trading and
its use, which is a global phenomena and has
acquired the dimensions of an epidemic, affects
the economic policies of the State, corrupts the
system and is detrimental to the future of a
country. It has the effect of producing a sick
society and harmful culture. Anti-drug justice is a
criminal dimension of social justice. The United
Nations Convention against Illicit Trafficking in
Narcotic Drugs and Psychotropic Substances
which was held in Vienna, Austria in 1988 was
perhaps one of the first efforts, at an international
level, to tackle the menace of drug trafficking
throughout the comity of nations. The
Government of India has ratified this convention.
4. Prior to the passing of the NDPS Act, 1985 control
over narcotic drugs was being generally exercised
through certain Central enactments though some
of the States also had enacted certain statutes with
a view to deal with illicit traffic in drugs. The
Opium Act, 1857 related mainly to preventing
illicit cultivation of poppy, regulating cultivation
of poppy and manufacture of opium. The Opium
Act, 1878 supplemented the Opium Act, 1857 and
made possession, transportation, import, export,
sale, etc. of opium also an offence. The Dangerous
Drugs Act, 1930, was enacted with a view to
suppress traffic in contraband and abuse of
dangerous drugs, particularly derived from opium,
Indian hemp and coca leaf etc. The Act prescribed
maximum punishment of imprisonment for three
years with or without fine, insofar as the first
38 1.3-BA-st-2386-2020
offence is concerned and for the second or the
subsequent offence the punishment could go up to
four years' RI. These Acts, however, failed to
control illicit drug traffic and drug abuse on the
other hand exhibited an upward trend. New drugs
of addiction known as psychotropic substances
also appeared on the scene posing serious
problems. It was noticed that there
was an absence of comprehensive law to enable
effective control over Psychotropic substances in
the manner envisaged by the International
Convention on Psychotropic Substances, 1971.
The need for the enactment of some
comprehensive legislation on narcotic drugs and
psychotropic substances was, therefore, felt.
Parliament with a view to meet a social challenge
of great dimensions, enacted the NDPS Act, 1985
to consolidate and amend existing provisions
relating to control over drug abuse etc. and to
provide for enhanced penalties particularly for
trafficking and various other offences. The NDPS
Act, 1985 provides stringent penalties for various
offences. Enhanced penalties are prescribed for
the second and subsequent offences. The NDPS
Act, 1985 was amended in 1988 w.e.f. 29-5-1989.
Minimum punishment of 10 years' imprisonment
which may extend up to 20 years and a minimum
fine of Rs 1 lakh which may extend up to Rs 2
lakhs have been provided for most of the offences
under the NDPS Act, 1985. For the second and
subsequent offences, minimum punishment of
imprisonment is 15 years which may extend to 30
years while minimum fine is Rs 1.5 lakhs which
may extend to Rs 3 lakhs. Section 31( a) of the
Act, which was inserted by the Amendment Act of
1988, has even provided that for certain offences,
after previous convictions, death penalty shall be
imposed, without leaving any discretion in the
39 1.3-BA-st-2386-2020
court to award imprisonment for life in
appropriate cases. Another amendment of
considerable importance introduced by the
Amendment Act, 1988 was that all the offences
under the Act were made triable by a Special
Court. Section 36 of the Act provides for
constitution of Special Courts manned by a person
who is a Sessions Judge or an Additional Sessions
Judge. Appeals from the orders of the Special
Courts lie to the High Court. Section 37 makes all
the offences under the Act to be cognizable and
non-bailable and also lays down stringent
conditions for grant of bail. However, despite the
stringent provisions of the NDPS Act, 1985 as
amended in 1988 drug business is booming;
addicts are rapidly rising; crime with its role in
narcotics is galloping and drug trafficking network
is ever-growing. While interpreting various
provisions of the statute, the object of the
legislation has to be kept in view but at the same
time the interpretation has to be reasonable and
fair.”
the amendment Act of 1988 in detail and in clear terms it is
mentioned with no uncertainty that “Section 37 makes all the
offences under the Act to be cognizable and non-bailable and also
lays down stringent conditions for grant of bail.” This categorical
statement shows that Section 37, firstly, makes all offences non-
bailable; and, secondly, also lays down stringent conditions for
grant of bail.
40 1.3-BA-st-2386-2020
despite the stringent provisions of the NDPS Act, 1985, as amended
in 1988, the drug business was booming, addicts were rapidly
rising, crime with its role in narcotics was galloping and drug
trafficking network was ever-growing. While interpreting various
provisions of the statute, the object of the legislature is required to
be kept in view, but, at the same time the interpretation has to be
reasonable and fair.
observations were made by the Hon’ble Supreme Court. In fact, the
situation has become worse. Therefore, these observations apply to
today’s scenario with more force.
37. It was argued on behalf of the Applicants that this
judgment in Baldev Singh (supra) was delivered in the year 1999;
and thereafter there was further amendment to Section 37 in the
year 2001. Therefore, it was sought to be contended that these
observations are not applicable to the amended Section 37 after
2001. This contention has no force. The Section itself has not
undergone any change in its structure. Even in 1999, as the Act
41 1.3-BA-st-2386-2020
stood then, there was no specific sentence that “all the offences
were non-bailable”. This particular aspect was found to be
significant by the learned Single Judge in Stefan Mueller ’s case
(supra). It appears that Baldev Singh (supra) was not placed
before the Hon’ble Courts when Stefen Mueller and Minnie
Khadim’s cases (supra) were decided. Hence, the observations of
the Constitution Bench in Baldev Singh (supra) apply to the
provisions of Section 37, as it stood then, and also to Section 37 as
it stands today after the amendment in the year 2001. The
categorical statement and observation of the Constitution Bench in
Baldev Singh’s case (supra) clearly binds everybody. Hence, there is
no further scope to argue that only some offences under the NDPS
Act are non-bailable and other offences where punishment is less
than three years are bailable as per Part II of the Schedule of Cr.P .C.
38. It was contended on behalf of the Applicants, and in
particular by Mr. Subodh Desai and Mr. Taraq Sayed, that these
observations are ‘fleeting reference’ and do not have binding effect.
This contention will have to be rejected. Even obiter dictum of the
Hon’ble Supreme Court is binding on this Court. This was held in
42 1.3-BA-st-2386-2020
the case of Municipal Committee, Amritsar Vs. Hazara Singh6 In
this case, a Three Judges Bench of the Hon’ble Supreme Court
approved observations made by Kerala High Court in this regard.
The relevant portion reads thus:
“……. Indeed, the Kerala case cited before us by
Counsel viz., State of Kerala v. Vasudevan Nair,
(Cr. A. No. 89 of 1973, decided by the Kerala
High Court on July 18, 1974 – All India
Prevention of Food Adulteration Cases Reporter,
1975 Part I, p.8.] itself shows that such distortion
of the passage in the judgment did not and could
not pass muster. When pressed with such misuse
of this ruling, the High Court repelled it. The law
of food adulteration, as also the right approach to
decisions of this Court, have been set out correctly
there:
Judicial propriety, dignity and decorum
demand that being the highest judicial tribunal in
the country even obiter dictum of the Supreme
Court should be accepted as binding. Declaration
of law by that Court even if it be only by the way
has to be respected. But all that does not mean that
every statement contained in a judgment of that
Court would be attracted by Article 141.
Statements on matters other than law have no
binding force. Several decisions of the Supreme
Court are on facts and that Court itself has pointed
out in Gurcharan Singh v. State of Punjab, 1972
FAC 549 and Prakash Chandra Pathak v. State of
Uttar Pradesh, AIR 1960 SC 195, that as on facts
no two cases could be similar, its own decisions
which were essentially on questions of fact could
6(1975) 1 Supreme Court Cases 794
43 1.3-BA-st-2386-2020
not be relied upon as precedents for decision of
other cases.”
39. In the case of Laxmi Devi Vs. State of Bihar and others7,
the Hon’ble Supreme Court quoted various earlier judgments with
approval. It was mentioned and held that the ratio decidendi is
the underlying principle, namely, the general reasons or the general
grounds upon which the decision is based. The reasons for the
decision or the ratio decidendi is not the final order containing the
decision. In fact, in a judgment, though the ratio decidendi may
point to a particular result, the decision may be different and not a
natural consequence of the ratio decidendi of the judgment. It is
the ratio decidendi of a judgment and not the final order in the
judgment, which forms a precedent. Ratio decidendi in Latin meant
“the reason for deciding”.
are found in Paragraphs-21, 22, 23 & 24 of the judgment.
40. In the case of Baldev Singh (supra), the Constitution
Bench had considered the objects and reasons for the Act and the
amendments, various Sections, entire scheme of the Act and then
7(2015) 10 Supreme Court Cases 241
44 1.3-BA-st-2386-2020
they decided the scope of Section 50 of the NDPS Act. Thus, the
observations made in paragraph-4 of Baldev Singh’s case (supra)
are clearly in the nature of ratio decidendi; and they cannot be
termed as fleeting reference as is sought to be argued.
41. In fact, in the case of State of Orissa Vs. Laxman Jena8
Paragraph-4 of Baldev Singh’s case (supra) is reproduced and the
sentence prior to that says - “A Constitution Bench of this Court in
State of Punjab v. Baldev Singh, (1999) 6 SCC 172, has held …..”
Thus, even the Hon’ble Supreme Court in a later judgment has
treated Paragraph-4 of Baldev Singh’s case (supra) as important
decisive observations.
42. In another case of Beckodan Abdul Rehiman Vs. State of
Kerala9, Paragraph-4 of Baldev Singh (supra) is reproduced and
before that it was mentioned that “In that case the Court observed”.
Thus, in the subsequent judgments, i.e., subsequent to the
amendment of 2001 to Section 37, the Hon’ble Supreme Court
continued to refer to and rely on Paragraph-4 of Baldev Singh’s case
(supra).
45 1.3-BA-st-2386-2020
43. In the case of Director of Settlements, A.P. and others Vs.
M.R. Apparao and another10, it is observed that even obiter of
Supreme Court is of considerable weight. It was further observed
that a decision in the judgment of the Supreme Court cannot be
assailed on the ground that certain aspects were not considered or
the relevant provisions were not brought to the notice of the Court.
When the Supreme Court decides a principle, it would be the duty
of the High Court or a sub-ordinate Court to follow the decision of
the Supreme Court. These observations can be found in Paragraph-
7 of the said judgment. Thus, it leaves no manner of doubt in my
mind that the observations in Paragraph-4 in Baldev Singh’s case
(supra) are binding and it is my duty to follow this decision.
44. In another case of the Hon’ble Supreme Court, in the
case of Maktool Singh Vs. State of Punjab11, the Hon’ble Supreme
Court in Paragraph-17 observed that the only offences exempted
from the purview of the said rigours on the bail provisions are
those under Sections 26 and 27 of the Act. The former was
punishable upto a maximum imprisonment for three years; and the
46 1.3-BA-st-2386-2020
latter upto a maximum imprisonment for one year. For all other
offences, the Court’s power to release an accused on bail during the
period before conviction had been drastically curtailed. Thus, these
observations also mean that only in some of the offences where
lesser punishment is provided, the rigours of bail provisions under
Section 37 will not apply, but, that does not make those offences
bailable. As mentioned earlier, the concept of application of rigours
and the concept as to whether a particular offence is bailable or
non-bailable are two different issues.
45. The non obstante clause in Section 37 plays a very
important part in construction of that Section. Originally in the
year 1985 this non obstante clause operated to exclude the
provisions of Cr.P .C. only to make all offences cognizable. At that
point of time, Section 37 declared that all the offences were
cognizable notwithstanding anything contained in the Cr.P .C.. In the
year 1985, the applicability of the Schedule to Cr.P .C. was not
excluded. For the first time in the year 1989, when the amended
provision of Section 37 was brought into force, the bail provisions
of Cr.P .C. were brought under the non obstante clause of Section 37
47 1.3-BA-st-2386-2020
of NDPS Act. Therefore, since 1989, the provisions for bail
including the Schedule to Cr.P .C., and in particular Part II of
Schedule of Cr.P .C., ceased to apply for offences punishable under
the NDPS Act. The provisions of NDPS Act in respect of bail
provisions were given complete over-riding effect and from that
point onwards the classification of offences were strictly governed
by Section 37 of the NDPS Act to the exclusion of all the provisions
of Cr.P .C. in respect of classification of such offences. The only
concession given by Section 37 of NDPS Act to the provisions of
Cr.P .C. are mentioned in sub-section (2) of Section 37. The Scheme
of Section 37 clearly shows that its provisions are independent of
Cr.P .C. and only additional limitations mentioned in Cr.P .C. in
granting bail were relevant. Therefore, clearly the classification of
offence was restricted to Section 37 of the NDPS Act and the
Schedule, in particular Part II of the Schedule of Cr.P .C. has no
application. The same situation continued even after amendment
of year 2001 made to Section 37 of the NDPS Act. Wherever there
was no inconsistency between the provisions of Section 37 and the
provisions for bail under Cr.P .C. then only it was permissible to look
at the Cr.P .C. for bail provisions. Therefore, other procedural
48 1.3-BA-st-2386-2020
aspects concerning bail provisions, for example, execution of bail
bonds etc. will be governed by the provisions of Cr.P .C.. If the
accused claims bail as of right in case of possession of small
quantity then no investigation can be carried out to find the source
and trade of the contraband. This defeats the object of the Act.
Considering all this discussion, I am of the firm view that the
observations made by the Hon’ble Supreme Court in Baldev Singh
(supra) are binding and all offences under the NDPS Act are non-
bailable.
46. A competent officer can effect arrest if he thinks it
proper to arrest such person. This is provided under Section
42(d). The officer arresting any such person has to keep in his mind
the benevolent provisions of this Act as well. This Act is not only a
strict, stringent and harsh Act for drug traffickers, it also shows
compassion and leniency in laying down reformative approach
under Sections 64A and 71. This reformative approach should
never be lost sight of.
47. Having said this, one cannot overlook the prevailing
situation in today’s society. The offenders involving smaller
49 1.3-BA-st-2386-2020
quantity or lesser punishment expose themselves to immediate
arrest. They cannot claim bail as of right. The Act needs to have
this deterrent effect to curb the spread of drug abuse.
48. Another issue which was raised before me, particularly
by Mr. Sayed, is that Section 37 indicates that rigours in granting
bail are applicable for the offences involving commercial
quantity and this concept will apply even to Sections 19, 24
and 27A of the NDPS Act. The scheme of the NDPS Act, after
amendment in the year 2001 shows that the concept of small,
intermediate and commercial quantity was introduced in some
penal sections. The sentencing structure was changed. For smaller
quantity, the sentence is much lesser. For intermediate quantity,
minimum sentence was not provided. But for the offences
involving commercial quantity, the minimum sentence provided is
ten years. According to Mr. Sayed, the rigours of Section 37 will
apply to the offences under Sections 19, 24 and 27A of the NDPS
Act if only theoffences involve commercial quantity. His reasoning
is that Sections 19, 24 and 27A are separated by word “or”.
50 1.3-BA-st-2386-2020
After Section 27A, they have used the word “and also” followed by
the words “for offences involving commercial quantity”. He,
therefore, contended that the concept of offences involving
commercial quantity is applicable to Sections 19, 24 and 27 as well.
Even this contention will have to be rejected. If the Legislature
wanted to restrict application of rigours only to the offence
involving commercial quantity including Sections 19, 24 & 27 there
was no necessity to mention these sections specifically in Section
37. A simple sentence that rigours will apply to all offences
involving commercial quantity would have served the purpose. The
specific mention of these three sections has its significance. The
punishment and sentencing under these Sections are independent
of the quantity of a contraband. When the Act was amended in the
year 2001, the other relevant penal Sections, viz., Sections 20, 21
& 22 were amended to include the concept of commercial quantity
and lesser quantity. However, these three Sections were
deliberately left untouched. Therefore, the concept of commercial
quantity or lesser quantity is not applicable to these Sections even
for consideration of bail applications. In the case of Union of
51 1.3-BA-st-2386-2020
India Vs. Niyazuddin Sk. and another12, in Paragraph-6, the Hon’ble
Supreme Court has enumerated the offences where special rigours
apply. This Paragraph-6 reads thus:
“6. Section 37 of the NDPS Act contains special
provisions with regard to grant of bail in respect of
certain offences enumerated under the said section.
They are:
(1) In the case of a person accused of an offence
punishable under Section 19,
(2) Under Section 24,
(3) Under Section 27-A and
(4) Of offences involving commercial quantity.”
Hon’ble Supreme Court and the offences involving commercial
quantity is a separate category that has no direct connection with
the earlier three categories i.e. Sections 19, 24 & 27A. The use of
the word “and also” does indicate that the fourth category of
offences involving commercial quantity is separate. Therefore, if
the prosecuting agency has material to show that either of these
three offences are committed i.e. under Sections 19, 24 and 27,
then irrespective of the quantity of the contraband, the rigours of
Section 37 will apply.
52 1.3-BA-st-2386-2020
49. Another important question of law which is required to
be addressed in this case is the scope and interpretation of Section
27A of the NDPS Act. Section 27A reads thus:
“27A. Punishment for financing illicit traffic and
harbouring offenders :-- Whoever indulges in
financing, directly or indirectly, any of the
activities specified in sub-clauses (i) to (v) of
clause (viiia) of section 2 or harbours any person
engaged in any of the aforementioned activities,
shall be punishable with rigorous imprisonment
for a term which shall not be less than ten years
but which may extend to twenty years and shall
also be liable to fine which shall not be less than
one lakh rupees but which may extend to two lakh
rupees:
Provided that the court may, for reasons
to be recorded in the judgment, impose a fine
exceeding two lakh rupees.”
Section defines “illicit traffic” thus :
“2. Definitions.-- In this Act, unless the context
otherwise requires,
(viiia) “illicit traffic”, in relation to narcotic drugs and
psychotropic substances, means—
53 1.3-BA-st-2386-2020
(i) cultivating any coca plant or gathering any
portion of coca plant;
(ii) cultivating the opium poppy or any
cannabis plant;
(iii) engaging in the production, manufacture,
possession, sale, purchase, transportation,
warehousing, concealment, use or
consumption, import inter-State, export
inter-State, import into India, export from
India or transhipment of narcotic drugs or
psychotropic substances;
(iv) dealing in any activities in narcotic drugs
or psychotropic substances other than those
referred to in sub-clauses ( i) to (iii); or
(v) handling or letting out any premises for the
carrying on of any of the activities referred
to in sub-clauses ( i) to (iv);
other than those permitted under this Act, or any rule or
order made, or any condition of any licence, term or
authorisation issued, thereunder, and includes—
(1) financing, directly or indirectly, any of the aforementioned
activities;
(2) abetting or conspiring in the furtherance of or in support of
doing any of the aforementioned activities; and
(3) harbouring persons engaged in any of the aforementioned
activities;”
50. As per the NCB’s case, the Applicant financed
procurement of drugs for Sushant Singh Rajput and she harboured
him knowing that he was consuming drugs and, therefore, she has
committed the offence punishable under Section 27A. As discussed
earlier, rigours of Section 37 of the NDPS Act specifically apply to
Section 27A; and Section 27A is independent of the quantity
54 1.3-BA-st-2386-2020
involved. There is no mention of activities involving small,
intermediate or commercial quantity in Section 27A. Therefore,
what is required to be considered is what is meant by “financing”
and “harbouring”. Section 2(viiia) defining “illicit traffic” gives a
list of various activities. Clauses (i) to (v) in Section 2(viiia) are
referred to in Section 27A. Clauses (i), (ii) & (iii) are reproduced
ad verbatim in sub-clauses (a), (b) and (c) of the prohibitory
Section 8 of the NDPS Act. In the present case, the Applicant is
not concerned with sub-clauses (i) & (ii) of Section 2(viiia) or sub -
clauses (a) & (b) of Section 8 of the NDPS Act. Sub-clause (iii) of
Section 2(viiia) and sub-clause (c) of Section 8 require close
scrutiny. Section 8(c) prohibits certain activities and it lays down
that no person shall produce, manufacture, possess, sell, purchase,
transport, warehouse, use, consume, import inter-state, export
inter-state, import into India, export from India or tranship any
narcotic drug or psychotropic substance. These all activities are
included in sub-clause (iii) of Section 2(viiia) except ‘concealment’,
which is missing from Section 8(c). However, that would be
perhaps covered under the residuary provision of sub-clause (iv) of
Section 2(viiia). Contravention of Section 8 is made punishable
55 1.3-BA-st-2386-2020
under various provisions of NDPS Act, viz., Sections 20, 21, 22 and
23. Importantly all these penal Sections take into account the
quantity of the contraband to prescribe a particular sentence. The
penal Section like Sections 19, 24 and 27A are not quantity
specific. They make no reference to the quantity of the substance
involved.
51. The Legislature was clear in its intention to give
concession in the sentencing structure for smaller or intermediate
quantities of the contraband. If Section 27A is applied to the
activities mentioned in Sections 8, 18, 20(b), 21, 22 and 23, then
classification of offences for sentencing purposes depending on the
quantity will lose all its significance. Section 27A is a different
provision, though, the activities mentioned in these Sections are
common.
52. Section 27A is much wider if sub-clause (iv) of Section
2(viiia) is taken into account. This sub-clause (iv) of Section
2(viiia) takes in its sweep all the remaining activities which are not
mentioned in sub-clauses (i),(ii) & (iii). This covers just about
every activity which can be described as dealing in narcotic drugs
56 1.3-BA-st-2386-2020
or psychotropic substances. The interpretation of Section 27A
should not be stretched to the extent of rendering classification of
sentences depending on the quantities in penal Sections 20, 21, 22
and 23 otiose.
53. Sub-clause (viiia) of Section 2 of the NDPS Act is an
inclusive definition. The inclusive part mentions financing,
abetting or conspiring and harbouring. The financing and
harbouring parts are specifically made punishable under Section
54. The activities mentioned in Section 2(viiia)(iii) and
Section 8(c) refer to sale, purchase, export, import etc.. All these
activities involve monetary transactions. For every sale or
purchase, there can be use of money. But, that will not mean that
either of the parties has “financed” the transaction. Such sale and
purchase are separately prohibited and made punishable under
Section 8(c) read with Section 20 and other similar Sections.
Therefore, “financing” is something more than just paying for
purchase and other activities involving contraband as defined
under Section 8(c). Contravention of that Section and indulging in
57 1.3-BA-st-2386-2020
activities mentioned in Sections 20, 21, 22 and 23 incur
punishment depending on the quantity of the contraband.
55. For interpreting Section 27A harmoniously with the
Scheme of the Act and other Sections, it is necessary to go to the
Statement of Objects and Reasons for incorporating this Section in
the Act w.e.f 29.5.1989. The Statement of Objects and Reasons of
the 1989 Amendment, which is reproduced hereinbefore, mentions
that India was facing a problem of transit traffic in illicit drugs.
The spill-over from such traffic was causing problems of abuse and
addiction. Therefore, need was felt to amend the Law to further
strengthen it.
56. Thus, the aim was to control the traffic in illicit drugs as
the spill over from such traffic was causing problems of abuse and
addiction. The Legislature wanted to attack the basic cause of illicit
traffic of drugs. The prohibitory Section 8 was already existing at
that time. Therefore, a separate Section 27A was introduced to
check these activities which were the root cause of illicit traffic.
“Financing” and “harbouring” such activities were, therefore,
specifically mentioned under Section 27A.
58 1.3-BA-st-2386-2020
57. “Financing” is not defined under the Act. The Concise
Oxford Dictionary defines the word “finance” as “(1) the
management of (esp. public) money, (2) monetary support for an
enterprise, (3) (in pl.) the money resources of a state, company, or
person, to provide capital for (a person or enterprise)”.
58. Black’s Law Dictionary gives meaning of the word
“finance” as “to raise or provide funds”.
59. Thus, “financing” as generally understood, is offering
monetary support or provide funds.
60. Therefore, simply providing money for a particular
transaction or other transactions will not be financing of that
activity. Financing will have to be interpreted to mean to provide
funds for either making that particular activity operational or for
sustaining it. It is the financial support which directly or indirectly
is cause of existence of such illicit traffic. The word “financing”
would necessarily refer to some activities involving illegal trade or
business.
61. The allegations against the Applicant of spending
money in procuring drugs for Sushant Singh Rajput will not,
59 1.3-BA-st-2386-2020
therefore, mean that she had financed illicit traffic.
62. The next key word in Section 27A is “Harbours”. Again
“harbouring” is not defined under the NDPS Act. The expression
“harbour” is used in other Acts as well. One such Act is Terrorist
and Disruptive Activities (Prevention) Act, 1987 (for short,
“TADA”). Sub-section (4) of Section 3 of said Act reads thus:
“3. Punishment for terrorist acts.—
(4) Whoever harbours or conceals, or
attempts to harbour or conceal, any terrorist shall
be punishable with imprisonment for a term
which shall not be less than five years but which
may extend to imprisonment for life and shall
also be liable to fine.”
63. The word “harbours” was not even defined in TADA.
The Hon’ble Supreme Court had an occasion to address this issue
which is reflected in the case of Kalpanath Rai Vs. State (through
CBI)13. In that case, it was contended before the Hon’ble Supreme
Court that the word “harbour” which was not defined in TADA must
be understood in the same manner as it was understood in Indian
Penal Code. The Hon’ble Supreme Court did not completely agree
60 1.3-BA-st-2386-2020
with such contention, but, went on to make certain important
observations in Paragraphs-49, 50, 51, 52 and 53. Said Paragraphs-
49, 50, 51, 52 and 53 read thus :
“49. There are two hurdles in the way to adopt the IPC
definition of the word “harbour” for TADA. First
is that TADA permits reliance to be made only on
the definitions included in the Procedure Code
and not on the definitions in the IPC. Second is,
the word “harbour” as such has not been used in
the Procedure Code and hence the question of
side-stepping to Penal Code definitions does not
arise.
50. Be that as it may, we would refer to the
expression “harbour” as understood in IPC, for,
TADA is essentially a penal statute and hence the
meaning attached to the words in the IPC can
have a bearing on the words used in TADA,
unless they are differently defined in the Code.
51. Section 52-A of the Indian Penal Code defines the
word “harbour” as including “supplying a person
with shelter, food, drink, money, clothes, arms,
ammunition or means of conveyance, or the
assisting a person by any means, whether of the
same kind as those enumerated in this section or
not, to evade apprehension”.
52. Sections 136 and 312 of IPC are the provisions
incorporating two of the offences involving
“harbour” in which the common words used are
“whoever knowing or having reason to believe”.
Another offence in the Penal Code involving
61 1.3-BA-st-2386-2020
“harbour” is Section 157 wherein also the words
“whoever harbours knowing that such person
etc.” are available. It was contended that mens rea
is explicitly indicated in the said provisions in the
Penal Code whereas no such indication is made in
Section 3(4) of TADA and therefore, the element
of mens rea must be deemed to have been
excluded from the scope of Section 3(4) of
53. The word “harbours” used in TADA must be
understood in its ordinary meaning as for penal
provisions. In Black’ s Law Dictionary its meaning
is shown as “to afford lodging to, to shelter, or to
give a refuge to”. Quoting from Susnjar v. U.S.,
CCA Ohio, 27 F 2d 223 (F 2d at p. 224) the
celebrated lexicographer has given the meaning
of the word harbour as “receiving clandestinely
and without lawful authority a person for the
purpose of so concealing him that another having
a right to the lawful custody of such person shall
be deprived of the same”. In the other dictionaries
the meaning of the said word is delineated almost
in the same manner as above. It is, therefore,
reasonable to attribute a mental element (such as
knowledge that the harboured person was
involved in a terrorist act) as indispensable to
make it a penal act. That apart, there is nothing in
the Act, either expressly or even by implication,
to indicate that mens rea has been excluded from
the offence under Section 3(4) of TADA.”
64. Section 2(xxix) of NDPS Act also permits use of Cr.P .C.
to assign meaning to words and expressions. The Hon’ble Supreme
Court mainly discussed whether mens rea was applicable. Even in
62 1.3-BA-st-2386-2020
Section 27A of NDPS Act, the concept of mens rea is applicable.
Section 52-A of IPC can be used for a limited purpose as mentioned
by the Hon’ble Supreme Court. The key words in that Section are
“to evade apprehension”. This only means that first of all there has
to be another offender who has committed the offence. The person
who is charged with harbouring that main offender should have
supplied him with shelter, food etc.; and then the next requirement
is that that second person should have done this to prevent the
main offender’s apprehension. In the present case, no criminal case
or FIR was pending against Sushant Singh Rajput. He was residing
in his own house and was spending for his own food and other
necessities. At that point of time, he had no apprehension of any
arrest. Therefore, the act on the part of the Applicant cannot be
stretched to attract the allegation of harbouring Sushant Singh
Rajput.
65. Another important word in Section 27A is “engaged”.
The offence of harbouring is attracted when a person harbours the
persons “engaged” in the activities mentioned in Section 2(viiia)(i)
to (v). The Black’s Law Dictionary gives the meaning of the word
63 1.3-BA-st-2386-2020
“Engaged” as ‘to employ’ or ‘involve oneself’; ‘to take part in’; ‘to
embark’. Thus, if Section 27A is read in its entirety, it indicates that
financing is in respect of illicit traffic through which the financer
expects monetary or other returns. In the same context, Section
27A makes harbouring a punishable offence. Harbouring is in
respect of a person who is engaged in such activities. It requires
that he is either employed in or has involved himself with or has
taken part in or has embarked on such activities.
66. In this context, Mr. Maneshinde and Mr. Sayed relied on
the judgment of a Single Judge of High Court of Kerala in the case
of K.K. Ashraf s/o Muhammed K.K14. In Paragraph-17 of that
order, the expression “financing” was discussed. After referring to
the facts of the case, the learned Judge observed that sale of a
narcotic drug on credit is different from financing the activity of
sale of narcotic drug. The expression “financing” was not related to
the payment of the value of the narcotic drug. On the other
hand, it involved an activity other than sale or purchase of the
narcotic drug, in which a person invests or provides funds or
14Decided on 13.10.2009 in Bail Application No.5251/2009 [Kerala High Court].
64 1.3-BA-st-2386-2020
resources for facilitating the activities mentioned in sub-clauses (i)
to (v) of Clause (viiia) of Section 2 of the NDPS Act. I agree with
these observations. Though, the learned ASG tried to submit that
the observations in fact helped his cause, I am unable to agree with
the learned ASG in this regard.
67. There is another important angle to interpretation of
Section 27A. Mr. Sayed submitted that the interpretation of
“harbouring” and “financing”, as sought to be made by Respondent
No.1 gives rise to anomalous situation. He pointed out that the
punishment for consumption of any narcotic drug or psychotropic
substance, as mentioned under Section 27, is maximum one year or
imposition of fine which may extend to Rs.20,000/-. By applying
the interpretation of Section 27A by NCB, if some other person like
a friend or a relative pays money for such consumption, then the
person who actually consumes the drug can be punished only upto
one year or can get immunity under Section 64-A of NDPS Act; but
the person who gives money for purchasing that drug faces the
prospect of spending twenty years in jail. This is highly
disproportionate and would be extremely unreasonable.
65 1.3-BA-st-2386-2020
cannot be interpreted in this manner. Therefore, Section 27A will
have to be interpreted harmoniously with other Sections as well as
Objects and Reasons of the Act so that it attacks the illicit drug
trafficking, but, does not extend to sentencing another accused
more severely than the main offender.
money to another for consuming drug would mean encouraging
such habit and would mean “financing” or “harbouring” as
envisaged under Section 27A of the NDPS Act.
68. In the light of what is discussed above in respect of
questions of law, the facts in the case against the Applicant can be
considered.
69. The allegations and material against the present
Applicant are that on some occasions she had used her own money
in procuring drugs. She facilitated procuring of drugs through her
brother. For that purpose employees of Sushant Singh Rajput were
also used. As discussed earlier, her acts would not fall under
Section 27A of the NDPS Act.
66 1.3-BA-st-2386-2020
70. The main Section which could be attracted in her case
is violation of Section 8(c) of the NDPS Act, which is made
punishable under Section 20 or Section 22. In that case, it is
necessary for the investigating agency to show that her activities or
contravention involved commercial quantity of a Narcotic drug or
psychotropic substance. The investigation did not reveal any
recovery either from the Applicant or from the house of Sushant
Singh Rajput. It is their own case that the drugs were already
consumed and hence there was no recovery. In that case, there is
nothing at this stage to show that the Applicant had committed any
offence involving commercial quantity of contraband. The material
at the highest shows that she has committed an offence involving
contraband, but, the crucial element of incurring rigours of Section
37 in respect of commercial quantity is missing. Therefore, I am
satisfied that there are reasonable grounds for believing that the
Applicant is not guilty of any offence punishable under Sections 19,
24 or 27A or any other offence involving commercial quantity.
There are no other criminal antecedents against her. She is not
part of the chain of drug dealers. She has not forwarded the drugs
allegedly procured by her to somebody else to earn monetary or
67 1.3-BA-st-2386-2020
other benefits. Since she has no criminal antecedents, there are
reasonable grounds for believing that she is not likely to commit
any offence while on bail.
71. The learned ASG had argued that the celebrities and
role models should be treated harshly so that it sets an example for
the young generation and they do not get encouraged to commit
such offences. I do not agree. Everybody is equal before law. No
celebrity or role model enjoys any special privilege before the Court
of law. Similarly, such person also does not incur any special
liability when he faces law in the Courts. Each case will have to be
decided on its own merits irrespective of the status of the accused.
72. The learned Special Judge has observed that the
Applicant may alert others and evidence can be destroyed by them.
There is no basis for such observation. It is also important to note
that when the Applicant was produced before the Court for her first
remand, the investigating agency did not seek her custody. That
means, they are satisfied with her interrogation and she had
cooperated in that investigation.
73. Based on all this discussion, the Application is allowed.
68 1.3-BA-st-2386-2020
However, considering the background of the case, stringent
conditions are imposed. Hence, I pass the following order :
i. In connection with C.R. No.16/2020 registered with the
Narcotics Control Bureau, Mumbai, the Applicant is directed
to be released on bail on her furnishing PR bond in the sum
of Rs.1,00,000/- (Rupees One Lakh Only) with one or two
sureties in the like amount.
ii. The Applicant shall deposit her passport with the
investigating agency.
iii. The Applicant shall not leave the country without prior
permission from the Special Judge for NDPS at Greater
Mumbai.
iv. If the Applicant has to go out of Greater Mumbai, she shall
inform the Investigating Officer; and shall give her itinerary
to the Investigating Officer in advance.
v. The Applicant shall attend the office of investigating agency
on first Monday of every month between 10:00 a.m. to
11:00 a.m. to mark her presence, for a period of six months.
69 1.3-BA-st-2386-2020
vi. The Applicant shall attend all the dates in the Court unless
prevented by any reasonable cause.
vii. The Applicant shall not tamper with the evidence or
investigation of the case.
viii. Criminal Bail Application stands disposed of accordingly.
74. At this stage, Shri Maneshinde requested to permit the
Applicant to furnish cash bail for a period of one month so that the
sureties can be arranged within that period. He submitted that
considering the prevailing pandemic situation, it will not be
possible to complete the formalities to arrange for sureties. Learned
ASG left this aspect to the discretion of the Court. Therefore,
initially the applicant is permitted to furnish cash bail for the sum
of Rs.1,00,000/- (Rupees One Lakh only) for a period of one month
from today. Within that period, the Applicant will have to furnish
the sureties, as directed.
75. Learned ASG sought stay of this order for a period of at
least one week from today to enable him to approach the Hon’ble
Supreme Court.
70 1.3-BA-st-2386-2020
76. I have imposed sufficiently stringent conditions on the
Applicant. Some further condition can be imposed for a limited
period to take care of the request made by learned ASG though I
am not inclined to grant stay to the order. If finally the order is set
aside and the bail is cancelled, the Applicant will be available for
being arrested again. Hence to ensure that even further, one more
condition is imposed:
(vii-a) After her release on bail, the Applicant shall mark her
presence at the nearest Police Station from her residence
anytime between 11:00 a.m. to 5:00 p.m. to show her
availability, for a period of ten days from her release.
77. This order shall be digitally signed by the Private
Secretary of this Court. All concerned shall act on production by fax
or email of a digitally signed copy of this order.
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Justice SV Kotwal of the Bombay High Court today granted bail to Bollywood actress Rhea Chakraborty, Dipesh Sawant and Samuel Miranda in cases registered under the Narcotics Drugs and Psychotropic Substances (NDPS) Act by the NCB.
The Court, however, rejected the bail applications filed by Abdul Parihar and Showik Chakraborty, who are also accused of NDPS offences by the NCB.
Rhea Chakraborty's bail application was allowed subject to furnishing a PR Bond of Rs. 1 lakh, among other conditions.
The Court has directed Rhea to appear before the nearest police station every day for 10 days after she is released on bail. Rhea has also been restricted from leaving the country as a bail condition.
Dipesh Sawant and Samuel Miranda have been allowed bail subject to furnishing of a PR bond of Rs. 50,000/- each. Their passports are also directed to be impounded.
Appearing for the NCB, the ASG Anil Singh requested for a stay on the order's operation. However, the same was rejected by the Court.
Advocate Satish Maneshinde, appearing for Rhea, requested for 1 month to furnish bail bond, which was allowed.
Rhea Chakraborty, Showik Chakraborty, Abdel Basit Parihar, Samuel Miranda and Dipesh Sawant had filed bail applications before the Bombay High Court after their bail plea was rejected by a Special NDPS Court in Mumbai.
Justice Kotwal of the Bombay High Court had reserved the judgment after a marathon hearing of all 5 bail applications on September 29, which lasted beyond the Court's usual working hours.
Rhea Chakraborty and the others are accused of having facilitated the procurement of drugs for consumption by late actor Sushant Singh Rajput.
Advocates Satish Maneshinde, Tariq Sayed, Subodh Desai and Rajendra Rathod argued for the accused in the matter, contending that they ought to be granted bail for the following, among other reasons:
1. The Narcotics Crimes Bureau (NCB) had no jurisdiction to investigate in this matter because of the Supreme Court order of August 19, 2020, to hand over all investigations pertaining to the death of actor Sushant Singh Rajput to the CBI.
2. Even if NCB had jurisdiction, the offences that were charged on the accused were of a bailable nature. On this aspect, the counsel added that the quantities of the substance allegedly involved in the matter were small, and not commercial.
3. The charges against the accused under Section 27A of the NDPS Act were not made out with supporting evidence.
Additional Solicitor General Anil Singh appeared for the NCB and maintained his stand that NCB had the jurisdiction to investigate in the matter. He asserted that the NCB had enough evidence to show that the accused were all part of a larger drug cartel.
Rhea and the others were arrested by the NCB for alleged offences under the provisions of the NDPS Act. Upon making a remand application for judicial custody, the Additional Chief Metropolitan Magistrate at Esplanade Court granted 14 days' judicial custody over the accused.
The Special NDPS Court rejected their bail pleas on September 11.
After the Special NDPS Court refused to grant bail, Rhea and the others filed individual bail applications before the Bombay High Court, submitting 51 grounds for seeking bail.
Justice Kotwal gave a preliminary hearing to the applicants before listing the matter for final hearing on September 29, when he reserved the matter for verdict.
Read the judgement of Rhea Chakraborty's application here.
[LIVE UPDATES]Bombay High Court would be giving its verdict on the bail applications filed by Rhea Chakraborty and the others in the drug case today.Justice SV Kotwal will pronounce the judgement at 11 am.@Tweet2Rhea @narcoticsbureau #bombayhighcourt pic.twitter.com/ENaAFfXYWO
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Through: Mr. RHA Sikander, Mr. Jatin Bhatt,
Mr. Sanawar, Mr. Dhruv Yadav, Mr.
Aayushmaan Aggarwal, Mr. Harshit
Gahlot, Advs.
versus
Through: Mr. Amit Prasad, SPP for State with
Mr. Madhukar Pandey, SPP with Mr.
Ayodhya Prasad, Mr. Sulabh Gupta,
Advs. with IO Amit Bhati, PS Special
Cell
Mr. Ripu Daman Bhardwaj, CGSC
Exemption allowed, subject to all just exceptions.
Applications s tand disposed of.
This is a petition seeking the following prayers -
i) quashing of search warrants dated 22.12.2020 issued by learned
CMM, New Delhi District, Patiala House Courts in FIR No.
212/2020, PS Special Cell.
ii) setting asi de order dated 02.03.2021 passed by learned CMM,
New Delhi District, Patiala House Courts in FIR No. 212/2020, PS
Special Cell.
iii) to quash the search warrant dated 04.03.2021 passed by learned
CMM, New Delhi District, Patiala House Courts in FIR No.
212/2020, PS Special Cell.
iv) setting aside the order of 25.03.2021 passed by learned CMM,
New Delhi District, Patiala House Courts in FIR No. 212/2020, PS
Special Cell
v) setting aside the order dated 05.11.2022 passed by learned ASJ, -07,
New Delhi Distr ict, Patiala House Courts, New Delhi in Crl. Revision
No. 159/2021.
It is stated by Mr. Sikander, learned counsel for the petitioner that in
the present case, no notice u/s 91 has been served on the petitioner.
He further states that Section 93 Cr.P.C. proceeds on the assumption
that Section 91 notice has been given and not complied with and thereafter
only Section 93(1)(a) notice is to be issued.
He states that in the present case, the CPU is lying sealed in his
premises.
He further states that purs uant to the first search warrant, the
respondent has already searched the office premises of the petitioner on
24.12.2020 for more than 10 hours and have taken whatever documents
were required by them.
He further states that the petitioner is ready and w illing to comply
with all documents which are required by the respondent along with 65 B
certificates under the Indian Evidence Act.
Mr. Prasad, learned counsel for the respondent states that in the
present case, he cannot disclose the course of investig ation.
However, he states that the CPU which is lying sealed in the premises
of the petitioner may be sent to the FSL/CFSL and the petitioner may be
permitted to be present at the laboratory.
He further states that 65 B will not have any relevance as t he moment
meta data is changed, 65 B Certificate will lose its relevance.
Lastly, he submits that the fact of searching the premises of the
petitioner for 10 hours on 24.12.2020 is also disputed and the search was
obstructed and an FIR in that regard has already been lodged.
Issue notice. Mr. Prasad, learned special public prosecutor accepts
notice, seeks and is granted 2 weeks to file a response/status report.
This is an application seeking ex-parte stay.
Prima facie, I am of the view that the respondent has searched the
office premises of the petitioner on 24.12.2020. In addition, there also seems
to be no service of notice u/s 91 Cr.P.C.
For the reasons recorded hereinabove, the order dated 02.03.2021,
04.03.2021, 25.03.2021 pa ssed by learned CMM in FIR No. 212/2020 and
order dated 05.11.2022 passed by ASJ -07, New Delhi District in Criminal
Revision No. 159/2021 and the search warrant dated 04.03.2021 shall
remain stayed till the next date of hearing.
The learned counsel for th e respondent is at liberty to file his
response/status report.
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The Delhi High Court recently stayed the execution of a search warrant issued by the Chief Metropolitan Magistrate (CMM) and some other orders passed by the the lower court allowing the Delhi Police to search the office of advocate Mehmood Pracha.
Single-judge Justice Jasmeet Singh passed the order after noting that the Police had already searched Pracha's office in December 2020 and that they had not served him notice under Section 91 of the Code of Criminal Procedure (CrPC).
"For the reasons recorded hereinabove, the order dated 02.03.2021, 04.03.2021, 25.03.2021 passed by learned CMM in FIR No. 212/2020 and order dated 05.11.2022 passed by ASJ-07, New Delhi District in Criminal Revision No. 159/2021 and the search warrant dated 04.03.2021 shall remain stayed till the next date of hearing," the Court ordered.
Mehmood Pracha has been representing some of the accused in the North-east Delhi riots case.
Delhi Police had registered an FIR against him in August 2020 alleging that he forged documents in one of those cases.
Subsequently, police raided his office and seized certain documents, including his computer.
In his plea now, Pracha argued that the police are seeking documents from him that were already seized during the earlier search.
He added that while he is willing to supply the documents in compliance with the provisions of Section 91 CrPC, the Police were insisting on seizing his entire computer containing sensitive data of many of his clients.
Advocates RHA Sikander, Jatin Bhatt, Sanawar, Dhruv Yadav, Aayushmaan Aggarwal and Harshit Gahlot appeared for Pracha.
Central Government Standing Counsel Ripu Daman Bhardwaj and Special Public Prosecutor Amit Prasad along with advocates Madhukar Pandey, Ayodhya Prasad and Sulabh Gupta Gupta appeared for Delhi Police.
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IDIA s tudents from diverse backgrounds s oar to new heights in CLAT 2020
Press Release
India ( 6 October 2020)
IDIA Charitable Trust (IDIA) is ready to welcome its new batch of Scholars including Jai Singh
Rathor , who has performed brilliantly and obtained All India R ank 3 in Common Law
Admission Test (CLAT) 2020. Belonging to a small place in Patna district, Jai overcame many
issues including financial struggles to emerge as one of the toppers! His father runs a small
grocery shop (kirana shop) and his mother is a homemaker .
Anand Kumar who got All India Rank 5 hails from a small village called Masaurhi in Patna. He
used to travel by train every day to attend classes . His father is retired after his service in the
army and receives a small pension . He is the only bread winner of the family. His mother is a
homemaker. Anand also has two sisters , who are currently studying in school.
Another IDIA Scholar, Yashwant Kumar , has also made his family and IDIA proud by getting
All India Rank 48 in CLAT 2020. Yashwant hails from a village called Mosaurhi, in Patna district,
Bihar . His father , who is a mechanic and manufactures some machine parts , is the only earning
member of the family. These students have fought many odds and crossed numerous hurdles
to crack CLAT.
IDIA is a nationwide movement that selects and trains students from marginalized and
underprivileged backgrounds to crack CLAT and other law entrance examinations. Once
selected to top law colleges, IDIA gives them a holistic scholarship that includes financial
assistance, trainings, mentorship etc. The aim is to create community lead ers and change -
makers who are CHAMPS (Creative, Holistic, Altruistic, Maverick/Moral, Problem Solvers) . It is
hoped that this will help empower communities by creating capacity from within.
Many of our other IDIA Trainees have also performed well and aroun d 12 are expected to get
a seat at some of the top National Law Universities. These include Soumya who got All India
PWD Rank 20. Soumya belongs from Penugonda village in Telangana. Her parents are farmers
and she faced lot of hurdles in her preparation due to her visual impairment and the economic
challenges faced by her. Her grit and determination have prevailed as she cracked CLAT!
IDIA is proud of its studen t team members across law colleges in India who worked tirelessly
to train these students for the law entrance examinations. We are also thankful to our training
partners that include some of the coaching institutes, trainers , and centers across India who
helped us in training some of these students .
We now need your help to sponsor the education of these students. They have shown their
mettle and money should not stand in their way of pursuing their education! If you want to
contribute towards their educat ion, please write to info@idialaw.org .
About IDIA Charitable Trust
IDIA is a pan -India movement to train underprivileged students and help transform them into
leading lawyers and community advocates. IDIA is premised on the notion that access to
premier legal education empowers marginalized communities and helps them help
themselves. IDIA selects and trains students from underprivileged backgrounds (IDIA
Trainees) to crack top law entrance examinations in India. Once they are admitted to top law
colleges, it provides a scholarship to these students (IDIA Scholars) that comprises financial
support, training , and mentorship among other things.
|
Following the declaration of the results of this year's Common Law Admission Test (CLAT 2020), at least three IDIA scholars have emerged as top rank holders.
Three IDIA scholars have bagged ranks 3, 5 and 48 from among the 53,226 undergraduate candidates whose results were declared today.
Jai Singh Rathor has emerged 3rd in the all India rank list, and 1st in the All India EWS rank list, with a score of 120.5 marks. Hailing from Patna, Jai overcame many issues including financial struggles to emerge as one of the toppers. His father runs a small grocery shop (kirana shop) and his mother is a homemaker.
Anand Kumar has achieved the 5th rank in the All India rank list. Hailing from Masaurhi in Patna, Anand used to travel by train every day to attend classes. His father is retired after his service in the army and receives a small pension. He is the only breadwinner of the family. His mother is a homemaker. Anand also has two sisters, who are currently studying in school.
Yashwant Kumar has emerged at rank 48 in the All India rank list, whereas he stands at rank 3 in the all India OBC rank list, with a score of 95.5 marks. Yashwant hails from a village called Mosaurhi, in Patna district, Bihar. His father, who is a mechanic and manufactures machine parts, is the only earning member of the family.
IDIA scholar Soumya, who got All India PWD Rank 20 is also set to join a National Law University this year. Soumya belongs from Penugonda village in Telangana. Her parents are farmers. In total, around 12 IDIA scholars are expected to join top NLUs this year.
Another student who has emerged in the top ranks is Shailaja who has ranked 6th in the all India rank list with 110.5 marks.
Recently, IDIA Scholar Yamuna Menon broke the record for most gold medals after topping her class at National Law School of India University, Bangalore.
The CLAT exams are conducted annually for admissions to 22 National Law Schools. The exam was held on September 28 this year.
The consolidated results for the UG entrance exam can be viewed here.
Read IDIA's press release here:
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SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 1/23
Supreme Court of India
SuSwagatam
Prepared for :
Visitor
National Informatics Centre
Ministry of Communications & Information Technology, New Delhi
Service for litigants to visit the Supreme Court of India
SOP - Visitor/Litigant
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Page No. 2/23
Table of Contents
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 3/23
1. SuSwagatam Portal
SuSwagatam is an initiative introduced by the Supreme Court of India to
provide a seamless and straightforward process for obtaining , paperless ePasses
required to visit the SCI for official or case -related purposes. The platform offers
advanced features aimed at eliminating the cumbersome and tedious procedures
involved in making visit requests.
The application is cloud -based software equipped with an easy -to-use graphical
interface and robust security measures. It efficiently maintains all relevant visitor
information, automatically saving it in a secure database.
The primary objective of this document is to outline the workflow for the
Visitor/Litigant role on the SuSwagatam portal and the associated processes. This
system ensures that visitors/litigants can easily apply for and receive ePasses,
streamlining the ov erall visitation process to the Supreme Court of India.
2. Stakeholder s
The SuSwagatam system involves five main types of stakeholders:
1. Visitor/Litigant : A visitor/litigantis an individua l, who wish to visit the Supreme
Court of India and apply for an online ePass to gain entry.
2. Advocate on Record (AOR)/Senior Advocate : AOR/Senior Advocate can
approve or reject ePass requests submitted by litigants. AOR/ Senior Advocate
concerned can recommen d one litigant in particular Court number and Item
number and total 4 litigants can be recommended .
3. Registry/Other Officers : This group consists of officers from the Supreme Court
of India , who are authorized to create, approve, or reject ePass requests for all
types of visitors.
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 4/23 4. Head of the Contractor, Institutions, or Delegations for Group Pass :
Individuals in this category can submit ePass requests for groups, such as study
tours or contractual work, as permitted by the Registry officer.
5. Rece ption Officials : These officials are stationed at the reception area and are
responsible for verifying the identity of visitors, capturing their ID documents and
photos, and issu anceof passes to walk -in and/or pre-approved visitors.
3. Visitor /Litigant
A Visitor /Litigant can submit an online request for ePass for the applicable permit
based on their category and/or role. An ePass shall be issued to the visitor/litigant
subsequent to the approval of their request by the concerned authority . On approval, an
ePass will be issued and sent to the visitor /litigant’registered email , mobile or the same
can also be downloaded from the SuSwagatam portal.
1. All Visitor s must complete one -time registration process on the
SuSwagatam portal to submit online ePass requests and receive ePasses from
the approving authority.
2. During registration, visitors are required to provide their personal details, such as
- name, mother/father/husband name, date of birth, address, occupation, email -
ID, ID type and number, ID docu ment, and photo. Please note that it is
mandatory to capture live photo of the visitor for the process of registration.
3. On successful regist ration , a visitor will not be able to change name,
mother/father/husband name, mobile phone number and date of birth .
4. Successfully registered visitor is referred to as " Visitor with verified profile ."
5. After registration, a visitor will have a personalized dashboard, where one can
access all relevant information and perform ePass -related activities.
6. While approving the request for issuance of an ePass of the visitor, the approving
authority can view the visitor's personal details, excluding ID details and address.
7. Once the concerned approving authority takes action on visitor’s ePass request,
visitor w ill be notified through SMS & email.
8. A visitor may either download the ePass through the SuSwagatam portal or
through registered email ID .
9. The complete details of the visitor, including their ID document, can be viewed by
the following authorities:
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 5/23 a) Reception Official for creating passes at the reception, handling
queries, and generating reports.
b) Group/Institute Head authorized by an officer of the Registry ,to
create online group ePass of the group members.
c) Monitoring Authority
4. Visitor / Institution Login
a) Only a r egistered visitor can login from the registered mobile number either
through one time password ( OTP) or password set at the time of registration .
b) An unregistered visitor may registe r by click ing on the registration link -
SOP - Visitor/Litigant
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Page No. 6/23
4.1Visitor Registration
a) The registration process by a v isitor/litigant can be initiate by clicking on the
registration link. A visitor/litigant must fill in the required details, and themobile
number shall be validated through OTP (One -Time Password). Please note that
the details marked in red color asterisk(*) are mandatory.
b) On completion of initial registration, a visitor/litigant is required to update the
profile details in the next step . This step is crucial to ensure that the ePass
generation process is efficient a nd error -free.
Visitor Profile Page :The Visitor ’ profile page is divided into four sections:
a) Personal Details – such as name, mother/father/husband’ name, gender, date of
birth is to be filled by the user. Please note that the personal details once
submitted are non-editable after it has been saved successfully. Please fill in the
personal details carefully and accurately at the time of the registration process.
Note : In case a visitor intends to change the personal details such as name,
mother/father/husband’ name, gender, date of birth and mobile phone
number, the visitor must re -register on the SuSwagatam portal as per the
approved process as a new user .
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 7/23
b) Address & Other Details
c) Category/Role & ID Details:
Select Category / R ole on the basis of which you will submit request for
issuance of an online ePass.
A visitor can update one’sCategory/Role as per the requirement and
canapply for issuance of ePass , subject to approval by the concerned
approving authority.
d) Police Clearance Certificate (PCC) /Other Document & Photo of the visitor :
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 8/23 Upload PCC , if you require ePass for more than a week as per your
Category/R ole
Journalist may upload ‘ letter signed by Chief of Bureau and Editor’ which is
mandatory document for Journalist ePass.
5. Visitor Dashboard
After successful registration and login, a visitorwill have access to the
personalized dashboard on the SuSwagatam portal. This dashboard will serve as
a central hub where visitors can perform all ePass -related activities conveniently.
Some of the activities a visitorcan perform from th e personalized dashboard
include:
Submitting request for issuance of ePass to the concerned approving
authority for their intended visits to the Supreme Court of India.
Viewing the status of their submitted ePass requests.
Downloading approved ePasses for their scheduled visits.
Updating their profile information (where applicable) such as
Category/Role , ID details, photo etc .
Viewing the history of their previous ePass requests and approvals.
SOP - Visitor/Litigant
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Page No. 9/23
SOP - Visitor/Litigant
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Page No. 10/23
6. ePass Request by Visitor /Litigant
a) ePass request can be submitted to concerned approving authority based on their
Category /Role, which is saved in their profile page.
b) Once a request is submitted by a visitor or litigant, the authorizing officers (such
as AOR, Senior Advocate, or Registry Officer) will receive notification through
email and short message service ( SMS ) text that require action on their part to
approve or disapprove.
c) Officer can approve/reject ePass request submitted by visitor either from the link
sent on theregistered email ID/SMS or by logging into the portal using the login
credentials.
d) On processing of the visitor/ litigant’ request by the approving authority, the
visitor/litigant will receive a notification through email/SMS. On approval, the
ePass will be sent through email and /or the same can also be downloaded from
the portal.
e) Category/Role can be updated by clicking on the 'Update Profile' link available on
the dashboard. This feature enables the user to update the profile information and
select a different Category/Role , if required.
SOP - Visitor/Litigant
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Page No. 11/23
6.1 Category/ Role: Senior Advocates /Advocates
Senior Advocates/Advocates, upon uploading of a valid Bar Council details in
profile page, are privilege dto generate self-authorized ePassvalid for a period of 30
days.
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 12/23 6.2 Category / Role: Litigant
Litigant can submit request for issuance of ePass for visiting -
Cour t Room
Office Block
a) ePass request for Court Room by Litigant
Litigant can submit a Court Room request for attending a court hearing via the
cause list.
The request will be submitted to the concerned approving authority, which could
either be an AOR of the case, Senior Advocates, and Registry Officers in specific
cases such as contempt cases or on Court orders.
If the login details of an AOR are not available in the SuSwagatam master
database, the system will prompt them to collect the Pass from the reception.
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 13/23
b) Litigant - ePass request for Office Block :
a) A Litigant can submit ePass request for an official visit to the office
block for a single day.
b) The office block request can be authorized by the Registry Officer.
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 14/23 6.3 Category/Role: Party in Person (PIP)
Party -in-Person (PIP) can also apply for issuance of an ePassfor –
a) Advocate Enclosure
b) Office Block
a) Party -in-Person – ePass request for Advocate Enclosure
Party-in-Person can submit ePass requests for the Advocate Enclosure as per the
cause list.
The request will be authorized by the appropriate Registry Officer.
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 15/23 b) Party in Person – ePass request for Office Block
Party -in-Person can submit request for issuance of ePass, to visit O ffice Block for
single day authorized by appropriate Registry Officer.
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 16/23 6.4 Category / Role: Law Clerk / Intern
Law Clerk/Intern can also submit request for issuance of ePass , to visit –
a) Court Room
b) Office Block
a) Law Clerk / Intern ePass request for Court Room
Law Clerk / Intern can submit ePass request for court room for the following
visit types :
o For A ll Courts, an Advance Pass request for a maximum period of 30
days .
o As per the Cause List for particular Court Room and Item n umber for a
single day
Request will be Authorized by Registry Officer
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 17/23 b) Law Clerk / Intern request for Office Block
Request to visit Office Block for an Official visit for a maximum period of30
days.
Request will be authorized by the concerned Registry Officer.
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 18/23 6.5 Category / Role: Contractual Staff
Contractual Staff working and posted at Supreme Court Registry can submit
request for issuance of ePass , to visit –
a) Court Room
b) Office Block
a) Contractual Staff ePass request for Court Room
Request can be submitted by contractual staff for all courts for a period of up to
one month.
Require Police Clearance certificate (PCC) for Advance Pass for a period more
than a week
PCC can be uploaded from ‘update profile’ option available on dashboard.
Request will be authorized by the concerned Registry Officer.
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 19/23
b) Contractual Staff ePass request for Office Block
Request can be submitted by contractual staff for all Office Block for a period
up to one month.
Advance pass for a period of up to one month can be applied.
Police Clearance certificate (PCC) is required for Advance Pass for a period
more than a week
PCC can be uploaded from ‘Update Profile ’link available on the visitor’s
dashboard.
The ePass requ est submitted by contractual staff will be authorized by the
concerned Registry Officer.
While submitting the ePass request, the visitor should select the specific
division for which the ePass is required.
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 20/23 6.6 Category / Role : Journalist
Under this category, Journalists can submit an ePass request for access to
the Press Lounge
A journalist can apply for an advance pass for a period of up to 30 days .
Please note that only o ne ePass per organization can be recommended.
To apply for the Journalist ePass, one need s to upload a letter signed by
the Chief of Bureau and Editor, which is a mandatory document for this
category. The letter can be uploaded on the 'PCC/Other Document' link
available on the profile page and thereaf ter click on the 'Update Profile' link
available on the dashboard.
The ePass request submitted by Journalist will be authorized by the Branch
Officer (Reception) or Branch Officer (Editorial) .
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 21/23
6.7 Categor y / Role: Other
Under this category, any other type of visitor, apart from the ones mentioned
earlier, can submit an ePass request for:
Official visit
Contractual work.
The ePass request will be authorized by the Registry Officer or Other Officers
listed in Annexure – 1.
SOP - Visitor/Litigant
https://suswagatam.sci.gov.in
Page No. 22/23 7. Visitor Category, A pplicable Permit
The f ollowing list provides information about each category of visitor, type
of visit and corresponding approving authority:
S.No. Visitor Type/
|
The Supreme Court of India has launched a dedicated portal for visitors, litigants and journalists to get electronic passes to enter the top court's premises.
The portal, named SuSwagatam, allows visitors, litigants, counsel, judicial law clerks, staff, parties-in-person and journalists to apply for electronic passes online.
The earlier procedure involved standing in queues at the E-Sewa Kendra, to get paper passes before entry was allowed into the Court's premises.
Chief Justice of India DY Chandrachud announced the launch before beginning today's hearing in the Article 370 abrogation case.
"One can just make the pass an evening prior. The moment person comes to the security counter, the entire pass details reflected for CISF. We have called it SuSwagatam. The portal was tested as a pilot project from July 25. More than 10,000 e-passes issued till August 8 as a pilot basis. We also have a video tutorial on how to use it and we will have it soon in other languages than English. E-Seva Kendra will help in training," he said.
Solicitor General (SG) Tushar Mehta welcomed the move.
"It was a major concern. The entire nation will be grateful. We used to come at 9 AM so that we get a pass to enter by 10.30 AM. This was 12-13 years back," he said.
As per a standard operating procedure (SOP) concerning the use of the portal by visitors/litigants, SuSwagatam aims to provide a seamless and straightforward process to get paperless e-passes to visit the Supreme Court for official or case-related purposes.
"The platform offers advanced features aimed at eliminating the cumbersome and tedious procedures involved in making visit requests. The application is cloud-based software equipped with an easy-to-use graphical interface and robust security measures. It efficiently maintains all relevant visitor information, automatically saving it in a secure database. The primary objective of this document is to outline the workflow for the Visitor/Litigant role on the SuSwagatam portal and the associated processes," the SOP informed.
Depending on the category of pass sought, there will be a dedicated dashboard with details of the E-Pass upon successful registration.
The E-Pass can be valid for up to 30 days for counsel, journalists, law clerks and staff on applying for the same.
|
Reportable
Special Leave Petition (Civil) Diary No 19206 of 2023
Dinganglung Gangmei ... Petitioner(s)
Versus
Mutum Churamani Meetei & Ors ... Respondent(s)
Special Leave Petition (Civil) Diary No 19210 of 2023
Writ Petition (Civil) No 540 of 2023
Writ Petition (Civil) No 576 of 2023
Writ Petition (Civil) No 572 of 2023
Writ Petition (Civil) No 574 of 2023
Writ Petition (Criminal) No 321 of 2023
Writ Petition (Criminal) No 327 of 2023
Writ Petition (Criminal) No 329 of 2023
Writ Petition (Civil) No 802 of 2023
Dr Dhananjaya Y Chandrachud, CJI
1.The State of Manipur has been besieged by sectarian strife since the first week of
May 2023.
2.On 27 March 2023, the Acting Chief Justice of the High Court of Manipur issued
directions in a writ petition under Article 226 of the Constitution1 to the
Government of Manipur directing it to respond to a communication dated 29 May
2013 of the Ministry of Tribal Affairs in the Union Government by recommending
the inclusion of the Meitei community in the Presidential List of Scheduled Tribes.
The recommendation for including the community in the list of Scheduled Tribes
was directed to be considered expeditiously within a stipulated time frame. The
jurisdiction of this Court under Article 136 of the Constitution was invoked to
challenge the order of the High Court principally on the ground that while
exercising jurisdiction under Article 226 of the Constitution the High Court cannot
issue directions for the inclusion of a community in the list of Scheduled Tribes.
The pleadings in the Special Leave Petition highlight that ‘Manipur is burning after
the impugned order.’
3.On 8 May 2023, the Union Government apprised this Court that the State of
Manipur ‘is taking appropriate steps for recall of the order of the Single Judge of
the High Court dated 27 March 2023 by moving the competent forum in that
regard.’ The Union Government placed a statement on record indicating that the
following steps were taken to ensure normalcy:
1 WP(C) No 229 of 2023
“(a) 52 companies of Central Armed Police Forces and 105
columns of the Army/Assam Rifles have been deployed in
Manipur;
(b) Flag marches have been conducted in disturbed areas;
(c) A senior level former police officer has been appointed as
Security Adviser by the State Government and another
senior officer has been repatriated yesterday from
Central Deputation to serve as Chief Secretary to the
Government of Manipur;
(d) Peace meetings have been conducted and vigilance is
being maintained;
(e) Helicopters and drones are being used to monitor the
situation in addition to the extensive deployment of
security forces;
(f) Relief camps have been opened for displaced persons
where rations and medical help are being provided; and
(g) Movement of persons who are stranded is being
facilitated through security forces.”
A statement was made before this Court “that as a consequence of the measures
which have been adopted, no violence had been recorded in the State during the
course of the previous two days and the situation is gradually returning to
normalcy.” Counsel for the contesting parties had voiced concerns over the need
to preserve law and order and to provide relief and rehabilitation. This Court
emphasised the need to maintain vigil and ensure that there is no recurrence of
violence, bearing in mind the loss of human life and destruction of homes and
places of worship that had taken place. This Court observed:
“7. While expressing the concern of the court over the loss of
human life and destruction of homesteads and places of worships,
we emphasise the need for :
(i) Ensuring that due arrangements are made in
the relief camps by providing all basic
amenities in terms of food and medical care;
(ii) T aking all necessary precautions for the
rehabilitation of displaced persons; and
(iii) Protecting places of religious worship.”
This Court directed that where critical medical care is required for persons who are
in relief camps, the authorities shall make arrangements for medical care at Army
Hospitals or other medical establishments. An updated status report was called
from the State of Manipur in regard to the steps taken to provide relief and
rehabilitative measures.
4.When the proceedings were next taken up on 17 May 2023, a status report was
filed by the State of Manipur indicating:
a.The steps taken to bring normalcy to the law and order situation in the
State;
b.Details of relief camps which have been opened;
c.Compensation packages made available on account of death or, as the
case may be, injury;
d.Security measures taken for protecting religious places;
e.Transportation of persons who were stranded due to the ongoing crisis;
and
f.Registration of FIRs and the recovery of arms.”
5.Besides the challenge to the direction issued by the Acting Chief Justice of the
High Court, a batch of writ petitions under Article 32 of the Constitution was
moved before this Court. In one of those petitions,2 apprehensions were expressed
by the petitioners about threats to safety. The petitioners sought directions for
enhancing security in sensitive areas specifically with reference to certain
vulnerable villages. This Court directed that these apprehensions must be taken
into account by the authorities entrusted to monitor law and order in the State.
The Chief Secretary and the Security Adviser were directed to immediately attend
to the grievances after due verification and take such measures as are required to
foster confidence and to ensure peace and tranquillity. The apprehensions which
were expressed by the petitioners in other petitions were also directed to be taken
into account by the law enforcement authorities. The proceedings were listed
before this Court on 20 June, 3 July and 10 July 2023. Noting that the Chief
Secretary had filed a status report, this Court permitted the contesting parties to
make concrete suggestions to the State of Manipur and the Union of India for
improving the situation. On 11 July 2023, the following submissions were
formulated by the Petitioners in Zomi Students Federation v. Union of India :3
“1. Several bodies are reported to be lying unidentified and
unclaimed in several mortuaries in hospitals across
Imphal including The Jawaharlal Nehru Institute of
Medical Sciences Morgue, Imphal. Families of persons
who are missing and feared dead are unable to reach
these mortuaries. The State may designate an officer
who can be contacted and who will facilitate visits by
such families to mortuaries under escort/protection and
enable the process of identification and handover of
dead bodies for last rites.
2. There is an acute shortage of doctors in the district
hospitals in the hill districts. The doctors deputed by the
2 WP(C) No 540 of 20233 WP (C) No 572 of 2023
health ministry (see para 22.4 of the status report –
Annexure ‘A’) and those promised by the Hon’ble Home
Minister (see PIB Notification dt. 01.06.2023 – Annexure
‘B’) may be sent to the district hospitals in the hill
districts to address this shortage.
3. There is shortage of essential medicines, Dialysis
Machines, CT Scan Machines in the district hospitals in
the hill districts which must be addressed.
4. Arrangement has been made for students of
Churachandpur Medical College to attend classes in
Jawaharlal Nehru Institute of Medical Sciences, Imphal
(JNIMS) (see notification attached - Annexure ‘C’). Similar
arrangement may be made for medical students of
JNIMS, Regional Institute of Medical Sciences, Imphal
(RIMS) and other medical colleges in Imphal to attend
classes in other institutions of similar standing outside
the state (for example see proposal sent by RIMS,
Imphal to the Union of India - Annexure ‘D’).
5. Manipur University has decided to conduct examinations
in all its affiliated colleges (see para 14 of the Status
Report). These examinations need to be deferred since
schools and colleges in the hill districts have been
converted into relief camps and a large number of
students and university staff have been forced to flee
their homes.
6. Helicopter Services have been provided between
Churachandpur, Kangpokpi and T engnoupal and Imphal
(see para 22.3 of the Status Report). Such services are in
fact required between Churachandpur, Kangpokpi and
T engnoupal and Aizawl, Guwahati and Dimapur as tribals
from the hill districts are still afraid to come to Imphal
even to use the airport.
7. Jio and Vodafone Cellular Services have not been
functioning in the State for the last several weeks and
need to be restored.
8. The State Government has issued a circular on 26 th
June 2023 (see Annexure ‘E’) asking all government
employees to immediately report to work and
threatening disciplinary action against employees who
fail to do so. This circular may be withdrawn as a large
number of persons have either fled the State or are
living in relief camps.
9. There are 105 relief camps in Churachandpur, 56 in
Kangpokpi, 10 in Chandel and 15 in T engnoupal being
run by community self-help groups. There is acute
shortage of drinking water, food, sanitation, shelter and
bedding at these for the displaced persons staying at
these relief camps. The Petitioner be allowed to submit a
list of items urgently required at these camps and the
Respondents State/Central Government be directed to
supply these items at the earliest.
10. Direction be issued by this Hon’ble Court that
appropriate restraint be exercised by persons holding
official positions from making inciting or provocative
remarks directed at any particular community that may
exacerbate the conflict as per the directions issued by
this Hon’ble Court in the case of Kaushal Kishor v. State
11. The Hon’ble Home Minister, after discussions with
representatives of all communities had indicated that an
inter-agency unified command would be set up under
the chairmanship of the security adviser Shri Kuldeep
Singh (see PIB Notification dt. 01.06.2023 – Annexure B).
However, as per the updated status report, the meetings
of the unified command center are being chaired by the
Chief Minister (see paragraph 6 of the Status Report –
Annexure A) which is contrary to the stated position of
the Central Government. This needs to be corrected to
generate confidence in the neutrality of measures being
undertaken.
12. A status report be called for on the number of arms
looted from the police armories, the number of such
arms recovered and the measures being undertaken for
recovery of the remaining arms.
13. T o make the task of this Hon’ble Court easier, a
committee having representatives of both the affected
communities and chaired by a retired judge of this
Hon’ble Court be appointed to oversee rescue, relief and
rehabilitation measures and to address grievances
concerning the same. This will ensure neutrality and
build confidence in the impartiality of the relief and
rehabilitation measures. At present the teams
comprising ministers and MLAs appointed by the
Government to oversee relief and rehabilitation
measures comprise of 35 MLAs (from a legislative
assembly comprising 60 MLAs) across seven teams in-
charge of seven (7) districts pointedly do not include
even a single MLA from the ZoKuki tribes which
damages public confidence in the neutrality of the
measures being undertaken (see circular dated 5th July,
2023 – Annexure ‘F’).”
6.While issuing directions for implementing most of the above suggestions (save
and except those at Serials 5, 6, 7 and 13 above), this Court directed positive
action by 14 July 2023. As regards suggestion at Serial number 13, the court
noted that a notification was issued on 5 July 2023 by the Government of Manipur
constituting Committees in seven districts for overseeing the supervision and
management of relief camps set up for housing persons who have been displaced
by the situation in Manipur. On the aspect of providing compensation to the
victims of the sectarian strife, this Court observed:
“4 In the suggestions which have been made before
this Court in Manipur Tribal Forum Delhi vs The State of
Manipur and Another, at this stage, we are of the view
that following suggestion would merit consideration by
the State administration, namely:
“Direct the State to immediately begin and
complete within 3 months (a) the interim
payment of 10 lakhs for every tribal killed as
assured by the Home Minister, (See list of 118
killed tribals (Add Aff. 8.7.23), (b) the
reconstruction by the State of the 141 tribal
villages destroyed (pg.41 I.A. 115711), and the
227 churches destroyed (pg.26) and further to
provide security so that the tribals can return.”
5 The State administration shall take a considered
view for disbursal of compensation to the affected families
and for reconstruction of villages and places of religious
worship which have suffered destruction in the recent
incidents of violence in the State.”
7.On the arrangements for preserving security, the Chief Secretary of the State of
Manipur filed an affidavit indicating the steps taken. This Court directed the Union
Government and the State of Manipur to make sufficient arrangements to ensure
the protection of lives and properties of all the citizens and residents of the State
of Manipur.
8.On 20 July 2023, the proceedings were taken on board by this Court in response to
visuals which had appeared in the media on the previous day depicting the
perpetration of sexual assault and violence on women in Manipur. While noting
that it was ‘deeply disturbed by the visuals,’ this Court noted that what was
portrayed in the media indicated gross constitutional violations and infractions of
human rights. This Court observed that “using women as instruments for
perpetrating violence is simply unacceptable in a constitutional democracy.” The
Court called for reports indicating the steps taken by the Government (i) to hold
the perpetrators accountable; and (ii) ensure that such incidents are not repeated.
Both the Union Government and the State Government were directed to take
immediate steps – remedial, rehabilitative and preventive - and to apprise this
Court of the action which was taken by the next date.
9.On 1 August 2023, this Court was apprised by the State of Manipur that 6,523 FIRs
had been registered as on 25 July 2023. According to its status report, 150 deaths
had taken place between 3 May 2023 and 9 June 2023 and 502 persons were
reported to have been injured. The State reported that there were 5,101 cases of
arson; 252 persons were arrested in connection with the FIRs and 12,740
preventive arrests were made. The State informed the Court that 11 FIRs involved
cases of violence against women and children, though this was subject to further
verification. Seven arrests were reportedly made in connection with these 11 FIRs.
10.At that point, the Court was apprised by one of the counsel that there was one
more FIR of the same genre. The Union Government apprised this Court through
the Solicitor General that while two FIRs which had been registered in the context
of the horrific visuals that depicted sexual violence against women, the State of
Manipur was willing to refer all the 11 FIRs to the CBI. Noting that the material
which was disclosed before the Court was inadequate, this Court observed that
there was no disaggregation of the 6,523 FIRs on the basis of the offences to
which they pertained. The State was directed to carry out this exercise and inform
the Court how many of the FIRs pertain to cases involving: (i) murder and/or rape
and outraging of modesty; (ii) arson and looting; (iii) destruction of house property
and places of religious worship; and (v) grievous hurt. This Court expressed its
dissatisfaction with the tardy pace of investigation. The Court highlighted that
there was an unexplained delay between the occurrence of the crimes in early
May 2023 and the registration of the FIRs and the recording of witness statements
and making arrests have been few and far between. This Court, accordingly,
called for a tabulated statement indicating:
a.The date of each occurrence;
b.The date of the registration of the zero FIR, if any;
c.The date of the registration of the regular FIR;
d.The dates on which witness statements have been recorded;
e.The dates on which statements under Section 164 of the Code of Criminal
Procedure 1973,4 if any, have been recorded;
f.The dates on which the victims were medically examined;
g.The dates on which arrests, if any, have been effected; and
h.Whether the accused have been named in the complaint/FIR.
11.The status report which has been filed by the State of Manipur contains a
disaggregation of 6,523 FIRs registered between 3 May and 30 July 2023. It is
reproduced below:
(03 May to 30 July 2023)
1.Murder and /or rape and outraging of modesty:
Sl No Crime Section of Law (IPC) No of cases
(i)Murder 302/304 – Murder
(ii)Rape 376/376D – Rape/Gang rape
(iii)Murder and
Rape 302/304 – Murder and 376 - Rape
(iv)Outraging of
modesty354 – Assault or criminal force to
woman with intent to outrage her
modesty 6
Kindly note: There is an overlap of offences in the FIRs
2. Arson, Looting, Destruction of house property:
Sl No Crime Section of Law (IPC) No of cases
(i)Arson 436/435 -Mischief by fire or
explosive substance (arson) 4454
(ii)Looting 380 – Theft in dwelling house
392/397/395/400/390 - Robbery,
Dacoity 4148
There is
overlap of
offences
(iii)Destruction
of house
property427 – Mischief causing damage 4694
There is
overlap of
offences
(iv)Damage to
public
property3 PDPP ACT – Mischief causing to
damage to public property 584
There is
overlap of
offences
Kindly note: There is an overlap of offences in the FIRs
3. Destruction of places of worship:
Sl No Crime Section of Law (IPC) No of cases
(i)Destruction
of places of
religious
worship295/295A - Injury or defiling place
of worship
4. Grievous hurt:
Sl No Crime Section of Law (IPC) No of cases
(i)Grievous
hurt.325/326 - Grievous hurt
12. The status report contains details of FIRs, month wise occurrence of crimes,
registration of cases, and the reporting of deaths and injuries. The status report
provides the following data:
“1T otal number of FIR registered originally as regular
FIRs in the PS of original jurisdiction 4766
2 T otal number of FIRs registered originally as ZERO
FIRs 11414
3 T otal number of such ZERO FIRs transferred to PS of
respective jurisdiction 10382
4 T otal number of ZERO FIRs converted to regular
FIRs by PS of respective jurisdictions6621”
13. The status report indicates the following situation in regard to the examination of
witnesses, arrests, and medical examination of victims:
(1)Murder rape, Outrage of modesty
No of witness statements recorded : 193
No of 164 statements recorded : 3
No of arrests made : 16
No of medical examination : 13
(2)Arson, looting, damage to property
No of witness statements recorded : 1366
No of 164 statements recorded : 3
No of arrests made : 14
No of medical examination : 6
(3)Destruction of religious place of worship
No of witness statements recorded : 10
No of 164 statements recorded : nil
No of arrests made : nil
No of medical examination : nil
(4)Grievous Hurt
No of witness statements recorded : 56
No of 164 statements recorded : nil
No of arrests made : 12
No of medical examination :7”
14.During the course of the submissions which have been addressed before this
Court, certain fundamental aspects warranting the immediate attention of this
Court have crystallized. Counsel for the petitioners specifically highlighted the
following issues:
a.The need for the appointment of a court-mandated Committee for hearing
and healing and for restoring the confidence of survivors and the families of
victims of violence, particularly sexual violence against women;
b.Constituting a court-appointed Special Investigating T eam5 comprising five
police officers drawn from outside the State of Manipur with a specific
mandate to ensure:
i.registration of FIRs;
ii.recording of statements of victims under Section 164 CrPC;
and
iii.medical examination of the victims under Section 164A CrPC;
c.Protection of victims and witnesses;
d.Provision of legal aid;
e.Enforcing the right to a speedy trial;
f.Provision of free and comprehensive medical aid to survivors or victims;
g.Transformative and reparative justice for the victims of ethnic violence,
including by:
i.Ensuring conditions of dignity in the relief camps;
ii.Providing compensation and restitution to the victims of
violence; and
iii.T aking preventive measures;
h.Facilitating the right to information by appointing nodal officers at relief
camps and other places to bridge the informational vacuum;
i.Providing dignity in the disposal of dead bodies; and
j.Appointment of a Commission of Inquiry to enquire into dereliction of duty by
public servants.
15.The circumstances which justify the intervention of this Court in the exercise of its
jurisdiction under Article 32 of the Constitution, clearly emerge from the sequence
narrated earlier in this judgment. The sectarian violence and strife in Manipur has
received extensive coverage in the media. The affidavit which has been filed by
the Union Home Secretary in these proceedings states that:
“4. … large-scale violence broke out in the State of Manipur on
03.05.2023 after a Tribal Solidarity March undertaken by All
Tribal Students Union Manipur (ATSUM) in opposition to the
demand for inclusion of the Meitei community in the list of
Scheduled Tribes. The call for this march led to a counter
response by Meiteis. Thereafter large-scale violence broke out
in the State of Manipur, and as a result of the violence, many
residents of Manipur lost their lives and several other got
seriously injured, their houses and properties were burnt down
as a result of arson and many of them were rendered
homeless. Moreover, incidents of violence and heinous crimes
against women have come to light.”
The Union Home Secretary has also noted that on 26 July 2023, the Government
of Manipur recommended the entrustment of two FIRs to the CBI for investigation
which was then recommended by the Union Ministry of Home Affairs on 27 July
2023. The Union Government has also informed the Court of its position that not
only should the investigation be completed at the earliest but the trial should also
be conducted in a time bound manner outside the State of Manipur.
The tardy pace of investigation by the investigating machinery in the State of
Manipur has emerged from the material which was placed before this Court which
is indicative of:
a.Significant delays between the occurrence of incidents involving heinous
crimes including murder, rape and arson and the recording of zero FIRs;
b.Significant delays in forwarding the zero FIRs to the police stations which
have jurisdiction over the incidents;
c.Delays in converting the zero FIRs into regular FIRs by the jurisdictional
police stations;
d.Delays in recording witness statements;
e.Lack of diligence in recording the statements under Section 161 and
Section 164 CrPC;
f.The tardy pace of effecting arrests in cases involving heinous offences;
and
g.The lack of alacrity in ensuring medical examination of victims.
16.These lapses in the investigative process do not bode well for the State of
Manipur. The importance of a speedy and fair justice system should need no
reiteration but the magnitude of the offences that we are dealing with prompts
this Court to reiterate their importance:
a.When a bodily or sexual offence is complained of, it is necessary to conduct
a medical examination of the victim immediately after the FIR is registered,
without any delay (subject to the victim consenting to such examination).
This is because one of the crucial pieces of evidence which has great
probative value in a trial is the nature and severity of the injuries sustained
by the victim. The existence of that injury has to be proved to the
satisfaction of the court. A medical examination by a registered medical
practitioner appropriately authorised in this regard is necessary to prove
that an injury was sustained. As time passes, some injuries heal and it is
difficult (and in some cases, not possible) for a registered medical
practitioner to accurately assess the severity of the injury. It is also difficult
for the registered medical practitioner to develop an opinion on the nature
of the weapon or the type of trauma which caused the injury. These aspects
attain importance during the trial when a weapon recovered from the
accused may be found to be connected to the injury sustained by the
victim. If the prosecution fails to prove that the injury sustained by the
victim / survivor was a result of the weapon recovered from the accused, a
person who is guilty of an offence may be unjustly acquitted. Conversely, if
the injury sustained by the victim / survivor is incorrectly found to be linked
to the weapon recovered from the accused, an innocent person may be
wrongfully convicted. Time is especially of the essence when a sexual
offence is complained of. A medical examination may result in the recovery
of the DNA of the accused from the clothing or body of the victim / survivor.
It may also result in the identification and recording of the nature and
severity injuries sustained by the victim / survivor. This is one of the
reasons that Section 164-A CrPC requires the medical examination of rape
victims to take place within twenty-four hours from the time that
information about the commission of the offence is received (subject to the
victim / survivor consenting to such examination). Undoubtedly, the
absence of such evidence ought not to lead to an acquittal as a matter of
course. However, there is no reason to deprive the prosecution of evidence
which has significant probative value or to deviate from the investigative
procedures prescribed by law;
b.The statements under Sections 161 and 164 CrPC must be recorded as soon
as possible. Such statements often lead to the recovery of evidence or the
identification of accused persons or witnesses. The statement under Section
161 CrPC may attain relevance during the trial, where the defence may rely
on it to contradict a witness in terms of Section 145 of the Indian Evidence
Act 1872;
c.The statements under Sections 161 and 164 CrPC coupled with the medical
examination of the victim may lead to the recovery of evidence and the
discovery of relevant facts, which will enable the prosecution to correctly
identify the accused person(s) and arrest them. This, in turn, will enable the
trial to commence as soon as possible and for justice to be done. Justice
delayed is indeed justice denied;
d.It is crucial for the police to identify and arrest the accused person
expeditiously because the accused person may be required for the
completion of investigation. Further, the accused may attempt to tamper
with or destroy the evidence, intimidate witnesses, and flee from the place
of the crime. Whether or not a person who is arrested in a particular case is
likely to do this is a matter left to be determined by the court seized of the
matter (during proceedings for bail, if any) but a significant delay in the
identification and arrest of the accused for no reason at all cannot be
countenanced by this Court;
e.The importance of identifying, arresting, prosecuting, and convicting the
person who is actually responsible for the commission of an offence cannot
be overstated. If the police arrests a person who is not actually responsible
for the offence complained of, it results in injustice which is two-fold: the
actual perpetrator is not brought to justice and an innocent person is
unjustly prosecuted; and
f.A speedy investigation is necessary to secure a just and proper outcome in
a trial and to instil and maintain confidence in the administration of criminal
justice in our country. A speedy investigation also serves a preventive
function in that the persons who witness the swiftness and accuracy with
which the criminal justice system punishes the perpetrator, will be deterred
from committing similar crimes. Last but not least, an expeditious
investigation and trial ensures that the trauma of victims / survivors is not
prolonged because of the length of the proceedings.
17.This Court must express its anguish of the manner in which women have been
subjected to grave acts of sexual violence in the course of the sectarian strife in
Manipur. Subjecting women to sexual crimes and violence is completely
unacceptable and constitutes a grave violation of the constitutional values of
dignity, personal liberty and autonomy all of which are protected as core
fundamental rights under Part III of the Constitution. Mobs commonly resort to
violence against women for multiple reasons, including the fact that they may
escape punishment for their crimes if they are a member of a larger group. In time
of sectarian violence, mobs use sexual violence to send a message of
subordination to the community that the victims or survivors hail from. Such
visceral violence against women during conflict is nothing but an atrocity. It is the
bounden duty of the state – its foremost duty, even – to prevent people from
committing such reprehensible violence and to protect those whom the violence
targets.
18.The sectarian strife has also led to large scale destruction of residential property
and places of religious worship. In this backdrop, this Court is duty bound to step
in while performing its plain constitutional obligation. This Court is also of the
opinion that its intervention will be a step towards the guarantee of non-repetition
that victims of such crimes are entitled to.6 The remedies which have been
6 United Nations, General Assembly, Resolution 60/147, ‘Basic Principles and Guidelines on the Right to a
granted are those which the Court feels will be even handed across all
communities and do justice to all those who have been injured (in any manner) by
the sectarian violence. The victims of violence must receive remedial measures
irrespective of their community. Likewise, the perpetrators of violence must be
held accountable irrespective of the source of violence. There are serious
allegations including witness statements indicating that the law-enforcing
machinery has been inept in controlling the violence and, in certain situations,
colluded with the perpetrators. Absent a proper investigation, this Court will not
enter a finding of fact on these allegations. But, at the very least, such allegations
require an objective fact-finding to be conducted. Those who are responsible for a
breach of public duty must equally be brought to account, regardless of their rank,
position, or post. Every officer of the state or other employee of the state who is
guilty not only of the dereliction of their constitutional and official duties but of
colluding with perpetrators to become offenders themselves, must be held
accountable without fail. This is the promise of justice that the Constitution
demands from this Court and from all branches of the state.
19.In this backdrop, there are two broad objects which the directions of this Court
must subserve. Firstly, there is a need to ensure that the violence ceases, the
perpetrators of violence are punished according to the procedure established by
law, and that consequently, the faith and confidence of the community in the
justice system is restored. Secondly, there is a pressing need to ensure that the
rule of law is restored and public confidence in the investigative and prosecutorial
process is sustained.
Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law.’
20.In order to subserve the two objectives which have been highlighted above, we
issue the following directions:
a.A Committee consisting of the following three members is constituted:
i.Justice Gita Mittal, former Chief Justice of the High Court of
Jammu and Kashmir;
ii.Justice Shalini Phansalkar Joshi, former Judge of the High
Court of Judicature at Bombay; and
iii.Justice Asha Menon, former Judge of the High Court of Delhi.
b.The mandate of the Committee shall be to:
i.Enquire into the nature of violence against women that occurred in
the State of Manipur from 4 May 2023 from all available sources
including personal meetings with survivors, members of the families
of survivors, local/community representatives, authorities in charge
of relief camps and the FIRs lodged as well as media reports; and
ii.Submit a report to this Court on the steps required to meet the needs
of the survivors including measures for dealing with rape trauma,
providing social, economic, and psychological support, relief and
rehabilitation in a time bound manner;
iii.Ensure that free and comprehensive medical aid and psychological
care to victims of survivors is provided;
iv.Ensure conditions of dignity in relief camps set up for displaced
persons including suggestions for additional camps. This would
include, illustratively, ensuring that the following requirements are
met:
A.Clean rations which are adequate in quantity;
B.Adequate supplies of essential products such as soap, water,
toothpaste, other toiletries, and clothes;
C.T aking care of the needs of infants and lactating mothers;
D.Meeting the requirement of basic medical care;
E.Control on the outbreak of communicable diseases;
F .Providing information on the accessibility of legal, psycho-
social, medical and livelihood services;
G.Access to free pregnancy tests, free emergency
contraceptives, free sanitary pads and free maternal health
services including access to gynaecologists;
H.Emergency and specialised medical care for people suffering
with critical illness including haemophilia, cancer, and
I.Proper sanitation facilities at the relief camps including clean
toilets and bathrooms which are adequate in number having
due regard to the number of people housed in a particular
relief camp and proper disposal of sewage and other waste;
J.Suicide prevention services and regular visits by
psychologists / psychiatrists to treat the impact of violence
and trauma;
K.Regular visits by psychologists, psychiatrists, and counsellors
who are specifically trained to treat children and adolescents;
L.Ensuring that women, children and persons suffering from
physical and mental disabilities have equal access to
resources to meet their basic needs; and
M.Ensuring that information regarding the availability of the
facilities listed above is disseminated and awareness is
created amongst the residents of the relief camps.
v.Ensuring the payment of compensation and restitution to victims of
violence; and
vi.Issuing directions for the appointment of nodal officers at relief
camps and the provision of toll-free helplines to provide updates on
any investigation, missing persons, and the recovery of dead
bodies. The nodal officers must also ensure that they maintain a
database of all persons who are housed in their respective relief
camps. They must use this database to coordinate with one another
and ensure that minors and other persons who have been separated
from their families are reunited with their families at the earliest.
21.The three-Judge Committee appointed by this Court would, as part of its remit,
enquire into and take steps necessary for the disbursement of compensation
including the following:
a.Issuing directions to the Manipur State Legal Services Authority to ensure
award and payment of compensation to all victims under Section 357A
CrPC, NALSA’s Compensation Scheme for Women Victims/Survivors of
Sexual Assault/other Crimes 2018, and the Manipur Victim Compensation
Scheme 2019;
b.Where the victim is deceased, the next of kin should be identified for the
payment of compensation;
c.A report of compliance be filed before this Court within six weeks with full
particulars of the case, victim/witness, compensation awarded, date of
payment and the persons to whom the payment was made;
d.The Member-Secretary NALSA shall monitor together with the three-Judge
Committee on measures taken for witness protection, compensation and
the rehabilitation and treatment of victims; and
e.Issuing directions to the State of Manipur to settle compensation for
damages caused to the movable and immovable properties of persons
affected by violence; and
f.The updated status report shall be filed before this Court on a fortnightly
basis.
22.The State of Manipur and the Union Government have indicated that there are
eleven FIRs involving cases of sexual violence against women and children.
Details of the statement tendered by the Director General of Police, Manipur, who
was present in Court, under its directions, are reproduced below:
No
.FIR No. & Section Police station Distric
1FIR No. 94(5)2023 PRT-PS u/s 147/ 148/
149/302 IPC.Porompat PS Imphal
East
Corresponding to FIR No. ZERO (65)(5)2023
SKL PS u/s 326/ 354/ 366/ 375/ 302/ 34 IPCPorompat PS Imphal
East
3FIR No. 110 (06) 2023 NSK PS u/s
Corresponding to FIR No. ZERO (91)
6/376/34 IPC & 25 (1-C) A. Act.Nongpok
Sekmai PS Thoub
al
354/307/364/376/376D/506/34 IPC & Sec 3
Corresponding to ZERO FIR No. 0(930)
(7)2023 KPI-PS u/s 354/307/364/376 /
1989Porompat PS Imphal
East
Corresponding to ZERO FIR No. 00(5)2023
WPS-CCP u/s 143/148/307 /326/ 354/397/34
(POA) Act Porompat PS Imphal
East
6FIR No. 79(5)2023 LPS u/s 148/ 149/ 302
Corresponding to FIR No. 00(5)2023 CCP-PS
u/s 143/ 148/ 427/ 436/ 354/ 34 IPC
registered and then transferred to Lamphel
-PS on18/07/2023.Lamphel PS Imphal
West
147/149/354/427 IPC & 3(i)(ix) SC & STSingjamei PS Imphal
West
(Prevention of Atrocities) Act.
27 Arms Act.Singjamei PS Imphal
West
9FIR No. 499(7)2023 SJM-PS u/s 143/ 148/
Sec 3(2) (iii) of SC & ST (Prevention of
Atrocities Act).
(Transferred from WPS-CCP)Singjamei PS Imphal
West
10i) FIR No. 584(7)2023 IPS U/s 366/ 368/ 34
ii) FIR No. 1009(7)2023 LPS U/S 365/34 1PC.Imphal PS Imphal
West
147/148/149/325/354/307/427/400/34 IPC.Yaingangpok
pi PS Imph
al
East”
23.Apart from the above eleven FIRs, the petitioners have adverted to the following
six FIRs:
1.17.05.2023Zero FIR 79(5) 2023 SKL-PS
3.08.06.2023FIR No. 00(06) 2023 SKT – PS
4.17.05.2023FIR No. 146(5) 2023 LPS and FIR No. 147(5)
2023 LPS. These two FIRs are separate
FIRs filed by two victims but relate to the
same incident.
5.21.07.2023FIR No. 00(07) 2023 CCP-PS
6.09.07.2023FIR No. 00(07) 2023 CCP - PS”
24.The above statement which has been tendered on behalf of the petitioners in the
petition filed by the Zomi Students Federation shall be duly scrutinized. In the
event that these FIRs involve offences of a similar nature to those which have
been referred to the CBI, similar action in that regard shall be taken within two
weeks. This Court shall be apprised of the action taken in this regard by way of a
status report filed within three weeks.
25.In order to ensure the fairness of the investigation, the following directions are
issued:
a.The process of investigation shall be monitored by this Court. For this purpose,
this Court appoints Shri Dattatray Padsalgikar, former Director General of
Police, Maharashtra to supervise the investigation by the CBI into the FIRs
transferred to it and the investigation by the investigative machinery of the
State into the remaining FIRs;
b.For the purpose of ensuring proper investigation of the FIRs which are
transferred to the CBI, the Union Ministry of Home Affairs shall place at the
disposal of the CBI five officers drawn from the States of Rajasthan, Madhya
Pradesh, Jharkhand, Odisha and NCT of Delhi at least of the rank of Deputy
Superintendent of Police. At least one of these five officers shall be a woman.
For this purpose, the Directors General of Police of the above States shall
nominate an officer at least of the rank of Deputy Superintendent of Police for
deputation to the CBI. On deputation, the officers shall perform their functions
under the overall structure of the CBI and submit periodical information and
reports as may be required by Shri Dattatray Padsalgikar, the officer
appointed by this Court for supervising the investigation. They shall abide by
the directions as may be issued in that regard by him from time to time; and
c.Shri Dattatray Padsalgikar is also requested to investigate the allegations that
certain police officers colluded with perpetrators of violence (including sexual
violence) during the conflict in Manipur. The Union Government and the State
Government shall provide any assistance required in order to carry out this
investigation. The findings shall be submitted to this Court in the form of a
report.
26.The State of Manipur has, in its submission before the Court, indicated that in
order to ensure that the investigation into the FIRs is conducted in a time bound
manner, the following SIT s shall be constituted:
“For FIRs related to murder and/or any other heinous crime, the
SIT s are proposed to be headed by an officer not below the rank
of SP and such SIT s will also include the following :-
i.02 (two) Inspectors
ii.06 (six) Sub-Inspectors
iii.12 (twelve) Constables.
For FIRs related to rape, outraging of modesty and such other
sexual offences, the SIT s are proposed to be headed by an
officer not below the rank of SP and such SIT s will also include
the following :-
i.At least 01 (one) female Inspector
ii.At least 02 (two) female Sub-Inspectors
iii.At least 04 (four) Women PCs.
For other FIRs, SIT s headed by an officer not below the rank of
Dy SP will be constituted. The composition of these SIT s will be
as follows:
i.02 (two) Inspectors
ii.06 (six) Sub-Inspectors
iii.12 (twelve) Constables.
For the districts of Churachandpur, Kangpokpi, Imphal West,
Imphal East, Bishnupur and Kakching, there will be 06 (six) SIT s
in each district with the above composition.
For Thoubal and T engnoupal districts, there will be 03 (three)
SIT s each with the above composition.
These SIT s will be supervised weekly by an officer of the rank of
In addition, the DGP will also monitor these cases fortnightly.
In total, 42 (forty-two) nos. of SIT teams of Manipur Police are
being proposed to tackle these cases in a focused and timely
manner.”
27.In order to ensure proper monitoring and supervision of the investigation by the
police authorities, the Union Ministry of Home Affairs shall make available, on
deputation, one officer of the rank of Police Inspector drawn from the States of
Rajasthan, Madhya Pradesh, Odisha, Jharkhand, Maharashtra and NCT of Delhi.
The Ministry of Home Affairs shall also nominate, on deputation, at least fourteen
officers not below the rank of Superintendent of Police to be in charge of the
respective SIT s. The investigation by the SIT s constituted for the State of Manipur
shall also be monitored and supervised by Shri Dattatray Padsalgikar, the officer
appointed by this Court for the purpose. The following directions are issued in this
regard:
a.In cases where the FIR relates to a sexual offence (rape, outraging the
modesty of a woman, etc.) in addition to any other crime (murder, grievous
hurt, etc.), the SIT which consists of women officers (Inspectors / Sub-
Inspectors / PCs as described by the State of Manipur in the extract above)
shall be in charge of the entire investigation;
b.The SIT will visit each relief camp within the area assigned to it and make it
known that it is an impartial body which is accepting complaints of violence
(including sexual violence). This is necessary because many survivors / victims
may not approach the police machinery of their own accord, especially in the
aftermath of sectarian violence which may have resulted in the loss of family
members and homes, displacement, and trauma to their own bodies and
minds;
c.Where sexual offences are being investigated, the SIT s shall follow all
prescriptions in law intended to prevent the re-traumatization of women,
including the second proviso to Section 161(3) CrPC. The SIT s shall comply
with the directions issued by this Court with regard to the investigation of
sexual offences including the directions issued in Nipun Saxena v. Union of
India7 and XYZ v. State of Madhya Pradesh .8
d.The SIT s constituted by the State of Manipur shall not consist exclusively of
members belonging to either one of the communities involved in the clashes
in Manipur;
e.Should the officer appointed by this court require any further assistance of
supervising officers at the DIG level or otherwise, a requisition in that regard
shall be submitted to the Union Ministry of Home affairs for necessary action;
f.In the course of monitoring the investigation, Shri Dattatray Padsalgikar will
ensure that, depending on the facts of each case, the FIRs are registered by
invoking relevant penal provisions. Illustratively, some of the provisions are
set out below:
Indian Penal Code 1860
S.No.SectionDescription
1.117Abetting commission of offence by the
public or by more than ten persons.
2.121Waging or attempting to wage war or
abetting waging of war against the
Government of India
3.121AConspiracy to commit offences
punishable by section 121
4.122Collecting arms, etc, with intention of
waging war against the Government of
India.
5.124ASedition
6.145Joining or continuing in unlawful
assembly, knowing it has been
commanded to disperse.
7.147Punishment for rioting
8.149Every member of unlawful assembly
guilty of offence committed in
prosecution of common object.
9.151Knowingly joining or continuing in
assembly of five or more persons after
it has been commanded to disperse.
10.153APromoting enmity between different
groups on grounds of religion, race,
place of birth, residence, language, etc,
and doing acts prejudicial to
maintenance of harmony.
11.186Obstructingpublicservantin
discharge of public functions.
12.302Punishment for murder.
13.324Voluntarily causing hurt by dangerous
weapons or means.
14.326Voluntarily causing grievous hurt by
dangerous weapons or means.
15.332Voluntarily causing hurt to deter public
servant from his duty.
16.353Assault or criminal force to deter public
servant from discharge of his duty.
17.354Assault or criminal force to woman with
intent to outrage her modesty.
18.354ASexual harassment and punishment for
sexual harassment.
19.354BAssault or use of criminal force to
woman with intent to disrobe.
20.376Punishment for rape.
376(2)(g)Punishment for rape committed during
communal or sectarian violence.
376-APunishment for causing death or
resulting in persistent vegetative state
of victim.
376-CSexual intercourse by a person in
authority.
376-DGang rape.
21.392Punishment for robbery.
22.395Punishment for dacoity.
23.436Mischief by fire or explosive substance
with intent to destroy house, etc.
24.447Punishment for criminal trespass.
25.456Punishment for lurking house-trespass
or house-breaking by night.
26.457Lurking house-trespass or house-
breaking by night in order to commit
offence punishable with imprisonment.
27.458Lurking house-trespass or house-
breaking by night after preparation of
hurt, assault, or wrongful restraint.
28.505Statements conducing to public
mischief.
29.120BPunishment of criminal conspiracy.
Prevention of Damage to Public Property Act 1984
S.No.SectionDescription
1.3Mischief causing damage to public
property.
2.4Mischief causing damage to public
property by fire or explosive substance.
Arms Act 1959
S.No.SectionDescription
1.25Punishment for certain offences.
Unlawful Activities (Prevention) Act 1967
S.No.SectionDescription
1.15T errorist act
2.16Punishment for terrorist act.
3.18Punishment for conspiracy, etc.
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
S.No.SectionDescription
1.3Punishment for offences of atrocities.
28.The officer nominated by this Court shall, in the course of monitoring the
investigation, issue all appropriate directions including:
a.Providing qualified legal assistance during the course of investigation;
b.Making investigations time-bound;
c.Timely recording of statements under Section 161 and Section 164 CrPC
including with proper support persons/facilitators under the High Court of
Manipur guidelines for recording of evidence of vulnerable witnesses, if
required, through video conferencing or automatic transcription;
d.Provision for legal aid counsel to the victims during the course of the
investigation; and
e.Maintenance of secrecy of the materials collected during the investigation
and maintenance of the anonymity of the victims / survivors of sexual
violence in the status reports submitted to this Court.
29.The Union of India and the State of Manipur shall:
a.Ensure that all the areas which are vulnerable to sectarian violence and riots
are identified and monitored so that preventive measures are effectively put
into place;
b.Disseminate information regarding and widely publicize the constitution of the
SIT s and the constitution of the three-Judge Committee by this Court in all
villages, towns, and districts of Manipur as well as in every relief camp that
has been set up, in a language that is comprehensible to all residents of
Manipur. This information must be made available even to those who are not
in possession of a radio, newspaper subscription, smartphone, or television;
and
c.T ake stock of the number of arms missing or looted from the armouries of the
state and of these, the number of arms which have been recovered. Formulate
and implement a plan to recover any missing arms.
30.Shri Dattatray Padsalgikar and the three-Judge Committee appointed by this Court
shall submit reports to this Court within a period of two months, elaborating on
the progress which has been made. This Court shall issue further directions at that
stage for the shifting of the trials outside the State of Manipur, as may be required
and for consequential directions.
|
The Supreme Court on Monday constituted a three-member all-women judicial committee headed by former Jammu and Kashmir High Court Chief Justice Gita Mittal to examine the probe being conducted to ensure justice to all who are victims in the incidents of violence in the State.
The committee will also comprise former judges Justices Shalini Joshi and Asha Menon.
The committee will have a broad-based function of examining the ongoing probes and suggesting remedial measures, compensation and rehabilitation among other things.
A bench of Chief Justice of India (CJI) DY Chandrachud with Justices JB Pardiwala and Manoj Misra, however, made it clear that the committee will not supplant the CBI but is being constituted to ensure faith in rule of law.
"The broad outline is to use whatever in our power is to restore faith in rule of law. We will appoint a committee of 3 former HC judges. This committee of three judges will look at the investigation, relief, remedial measures, compensation and rehabilitation. It is a broad-based committee.. it will look at the relief camps (also)," the Court said.
The Court, however, refused to transfer trial in the cases to a State outside of Manipur.
The Court also said that it is not casting any aspersions on the CBI.
"We will not supplant the CBI since it is looking at it. But to ensure faith in rule of law.. we are not casting aspersion on CBI," the bench made it clear.
Further, the probe by the investigating agencies will also be specifically looked into by former Maharashtra DGP and NIA officer Dattatray Padsalgikar.
"The process of investigation shall be monitored by this Court. For this purpose, this Court appoints Shri Dattatray Padsalgikar, former Director General of Police, Maharashtra to supervise the investigation by the CBI into the FIRs transferred to it and the investigation by the investigative machinery of the State into the remaining FIRs," the Court said.
Both the judicial committee and Dattatray Padsalgikar shall submit separate reports before the top court, the bench ordered.
Pertinently, the Court also set out the investigation hierarchy as regards both CBI and State SIT probe.
Regarding CBI probe, it said,
"We are proposing to direct that there shall be 5 officers of rank at least DySP who will be brought into CBI from various states and we will ask the Director General of Police from the states where Hindi is spoken and have 5 officers to be brought on deputation to the CBI to oversee the investigation into these FIRs. These officers will also function within four corners of administrative set up of the CBI and will be supervised by joint director of CBI."
As regards State investigation, the bench directed that,
"There will be about 42 SITs which will look at cases not transferred to CBI. One inspector from that state will also be brought in by MHA in those 42 SITs so that one officer outside the State is there in each of those cases. These 42 SITs should be supervised by 6 DIG Rank officers from outside the State of Manipur... each officer will oversee 6 SITs."
The Court in its order also listed down the reasons why it was intervening:
a. Significant delays between the occurrence of incidents involving heinous crimes including murder, rape and arson and the recording of zero FIRs;
b. Significant delays in forwarding the zero FIRs to the police stations which have jurisdiction over the incidents;
c. Delays in converting the zero FIRs into regular FIRs by the jurisdictional police stations;
d. Delays in recording witness statements;
e. Lack of diligence in recording the statements under Section 161.
The bench was hearing a batch of pleas filed regarding the outbreak of violence in Manipur, including a plea by two women from Kuki-Zomi community who were seen in a video being paraded naked and molested by a mob of men.
The Central government had ordered a probe by the CBI into the issue.
The women, meanwhile, moved the apex court seeking a probe by an SIT into the incident.
Prior to this, the Supreme Court also registered a suo motu case after a video of the horrific incident with the two women went viral on social media triggering outrage.
During the hearing of the matter on August 1, the Court had castigated the authorities and the State police today over their apparent failure to control the law and order situation that unfolded in Manipur.
It had remarked that the State Police is incapable of investigating the crimes happening across the State including sexual offences against and women, and there is a total breakdown of law and order machinery.
It had, therefore, ordered the DGP of Manipur to be personally present in Court on August 7.
The top court had further sought details from the State and the Central government about the 6,000 FIRs claimed to have been registered in connection with the violence in the State.
Following the Court's order last week, the Director General of Police (DGP), Manipur, was personally present in the Court today.
Attorney General R Venkataramani today assured the top court that the criminal cases lodged in the wake of the violence are being disaggregated.
"The government is handling this at a very mature level," he said.
Murder cases would be investigated by the Superintendent of Police and other senior police officers and women officers would be involved in investigations into sexual offences, he told the Court.
There will be six Special Investigation Teams (SIT) formed in each district, where violence has taken place, he added.
The Court today also queried whether there will be any rise in the number of cases being handed over to the Central Bureau of Investigation (CBI).
At present around 11 cases are being probed by the CBI. If something further is found, these may be dealt with by SITs and there will be monitoring done, weekly and fortnightly, submitted Solicitor General Tushar Mehta.
A host of other counsel also made submissions today for various petitioners and applicants.
Senior Advocate Indira Jaising and Advocate Vrinda Grover expressed concern over whether steps were in place to ensure that the probe into various cases of violence and rape were fair.
Advocate Vishal Tiwari, meanwhile, urged the Court to constitute an SIT headed by a former judge to look into the matter.
Advocate Nizam Pasha also pressed for a similar prayer in his arguments today.
"There is a selection of case bias and progress of case bias is also seen here in the report of the State government towards a community. That is why an SIT overseen by court-appointed judges committee needs to be there," Pasha argued.
Advocate Prashant Bhushan told the Court that an inquiry is needed into whether there was any State involvement in incidents where arms and ammunition were looted from the State armory.
Senior Advocate Colin Gonsalves contended that there is a need to identify the core ring leaders of the riots.
"The investigation or the core part must focus on the 6,000 FIRs but also on the core persons who created and executed the conspiracy ... Once the core elements are caught.. Once they are behind bars, who think they are invincible.. then chance of further assaults will disappear," he said.
Manipur Violence: Supreme Court constitutes all-women judicial committee to oversee probe and suggest compensation, remediesreport by @DebayonRoy #ManipurViolence #SupremeCourt https://t.co/yCyjP3Qk67
(Read Judgment)
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1. In this clutch of writ petitions maintained under
Article 32 of the Constitution, the Court is called
upon to consider the true effect of Article 324 and,
in particular, Article 324(2) of the Constitution. The
said sub -Article reads as follows:
“324(2) The Election Commission shall consist
of the Chief Election Commissioner and such
number of other Election Commissioners, if any,
as the President may fr om time to time fix and
the appointment of the Chief Election
Commissioner and other Election Commissioners
shall, subject to the provisions of any law
made in that behalf by Parliament, be made by
the President.”
2. A Bench of two learned Judges of this Court in Writ
Petition (Civil) No. 104 of 2015, passed the following
Order on 23.10.2018 :
“I.A. No.2 for amendment of writ petition;
raising additional facts, grounds and prayer
is allowed.
The matter relates to what the petitioner
perceives to be a requirement of having a full -
proof and better system of appointment of
members of the Election Commission.
Having heard the learned counsel for the
petitioner and the learned Attorney General for
India we are of the view that the matter may
require a close look and interpretation of the
provisions of Article 324 of the Constitution
of India. The issue has not been debated and
answered by this Court earlier. Article 145
(3) of the Constitution of India would,
therefore, require the Court to refer the
matter to a Constitution Bench. We,
accordingly, refer the question arising in the
present proceedings to a Constitution Bench for
an authoritative pronouncement.
Post the matter before the Hon’ble the Chief
Justice of India on the Administra tive Side for
fixing a date of hearing. ”
3. We may notice the following prayers in the said
Writ Petition (Civil) No. 104 of 2015:
i) issue a writ of mandamus or an appropriate
writ, order or direction, commanding the
Respondent: to make law for ensuring a fair,
just and transparent process of selection by
constituting a neutral and independent
collegium/ selection committee to recommend
the name for the appointment of the member to
the Election Commission under Article 324(2)
of the Constitution of India;
ii) issue a writ of mandamus or an appropriate
writ, order or direction constituting an
interim neutral and independent collegium/
selection committee to recommend the names for
the appointment on the vacant post of the
member to the Election Commission;
iii) issue a writ of mandamus or an
appropriate writ, order or direction
commanding the Respondent to decide the
petition of the petitioner dated 03.12.2014 for
making a law for ensuring a fair, just and
transparent selection process by constituting
an independent and neutral collegiums/
selection committee for recommending the names
for members to the Election Commission;”
4. In Writ Petition (Civil) No. 1043 of 2017, filed
by one Shri Ashwani Kumar Upadhyay, which is also a
Public Interest Litigation, the reliefs sought are as
follows:
a) direct the Central Government to take
appropriate steps to provide same and similar
protection to both the Election Commissioners
so that they shall not be removed from their
office except in like manner and on the like
grounds as the Chief Election Commissioner;
b) direct the Central Government to take
appropriate steps to provide independent
secretariat to the Election Commission of India
and declare its expenditure as charged on the
consolidated. fund of India on the lin es of the
Lok Sabha / Rajya Sabha secretariat;
c) direct the Central Government to take
appropriate steps to confer rule making
authority on the Election Commission of India
on the lines of the rule making authority
vested in the Supreme Court of India to e mpower
it to make election related rules and code of
conduct;
d) take such other steps as this Hon'ble Court
may deem fit for strengthening the office of
the Election Commission of India and allow the
cost of petition to petitioner.”
5. In Writ Petition (Civil ) No. 569 of 2021, filed by
the Association for Democratic Reforms, the reliefs
sought are as follows:
“i. Issue an appropriate writ, order or
direction declaring the practice of
appointment of Chief Election Commissioner and
Election Commissioner solely by the executive
as being violative of Articles 324(2) and 14
of the Constitution of India.
ii. Direct the Respondent to implement an
independent system for appointment of members
of the Election Commission on the lines of
recommendation of Law Commissio n in its 255th
report of March 2015; Second Administrative
Reform Commission in its fourth Report of
January 2007; by the Dr. Dinesh Goswami
Committee in its Report of May 1990; and by
the Justice Tarkunde Committee in its Report
of 1975.; ”
6. In the latest and the last Writ Petition (Civil)
No. 998 of 2022, Writ Petitioner is one Dr. Jaya Thakur.
The relief sought is as follows:
“(a). issue a writ order or directions in the
nature of Mandamus to the Respondents to
implement an independent and transparent
system for appointment of members of the.
election Commission on the lines, recommended
by the Report of the Committee on Electoral
Reforms of May 1990, formulated by the Ministry
of Law and Justice, Government of India, the
Report of Second Administrative Reforms
Commission, Government of India of 2007 and the
Report of Law Commission of India on Electoral
Reforms of March 2015 and;”
7. Having referred to the broad complaint, the reliefs
sought, we may appropriately notice the contentions of
the parties.
8. In Writ Petition No. 1043 of 2017, Shri Gopal
Sankaranarayanan makes the following submissions:
There is a lacuna in the matter of appointment
under Article 324. Of the twelve categories of
unelected Constitutional Authorities, it is only the
Election Commission and the National Commission for
Scheduled Castes, where qualifications and eligibility
are not laid down in the Constitution or the Statute.
The words ‘subject to law made’ falls into two broad
categories. In the matter of appointments, they are
represente d by Article s 324, 338, 338A and 338B. The
other category relates to conditions of service.
Representative of this group are Articles 146, 148, 229
and 243K. In the first category, Article 324 assumes
critical importance. Shri Gopal Sankaranarayanan put
forward the tes t that if a law could be made under
Article 324, providing for a committee to select CECs
and ECs and also for their qualifications, then, there
is a void. If such a law cannot be made, then, there
is no vacuum. Continuing with the argument about the
presence of a vacuum, it is contended that the
underlying rationale for the Court intervening must be
the existence of a fundamental norm or a basic feature
that needs to be secured. In this regard, democracy and
the concomitant imperative to hold free and fair
elections are projected. It is contended that the other
aspect, which must be borne in mind, is to be not
oblivious to the impact of the existence of the vacuum
on the rights of the members of the public, both
directly and indirectly. Like the Judiciary, the
Election Commission must display fearless
independence. In the absence of norms regarding the
appointment, a central norm, viz., institutional
integrity is adversely affected. An independent
appointment mechanism would guarantee eschewing of even
the prospect of bias. Favouritism would be largely
reduced. Right to Vote is a Constitutional Right. With
reference to law prevailing in other South Asian
countries and in the United Kingdom, it is contended
that clear qualification, as also eligibility
conditions, have been put in place. Mandatory tenures
are made available. The removal process, which is
uniform, is rigorous. It is contended that there has
been a sudden change after 2001, in the matter of
appointing Chief Election Commissioners. Successive
Governments have decided to select increasingly older
candidates. This has resulted in casting a shadow on
the much -needed independence, apart from curtailing
their tenure. Inaction on the part of the Election
Commission even in the face of alarming increase o f
criminals in public life, must guide this Court. With
reference to the Article, which we have adverted to,
it is pointed out that the Election Commission has
indulged in the alleged misconduct and favouritism. A
vigorous appeal is made to the Court to li sten to the
constitutional silence and understand the dire need for
the Court to step -in. In this regard, we are reminded
that this Court has played a very proactive role in
matters relating to elections and electoral reforms.
Interference was noteworthy i n matters relating to
affidavits on assets, criminal antecedents , time-bound
election petition trials, special courts for criminal
trials of M.P.s and M.L.A.s, protection from booth
capturing, freebies and NOTA. The executive underreach
justifies judicial oversight and activism,
particularly when more than 72 years have gone by. It
is contended that no mandamus is sought against
Parliament or to implement the Gaikwad Law Commission
Report. The following directions are pressed for until
a law is made. A Comm ittee of five, comprising the
Prime Minister, the leader of the Opposition or of the
single largest party in the Lok Sabha, the Chief
Justice of India, the Speaker of the Lok Sabha and an
eminent jurist selected by the first four to recommend
suitable cand idates, is to be appointed for appointment
to the Election Commission. The petitioner would have
the Court declare qualifications, which include
citizenship of India , and that a person should have
completed between 45 years and 61 years. The further
qualifications are that the person should have
impeccable integrity and high moral character. The
individual must have never had affiliation either
directly or indirectly to any political par ty. It is
also prayed that the person appointed must have been a
Member of the IAS or the IPS or a Judge of the High
Court. In terms of the two provisos in Article 324(5),
the Election Commissioners must be irremovable except
after following the procedure in the first proviso. An
independent Secretariat must be established. The
expenditure of the Election Commission should be
brought on par with those of the Supreme Court, the CAG
and the UPSC. The expenditure must be made non -votable
expenditure charged on the Consolidated Fund of India.
9. An independent Election Commission is necessary
for a functioning democracy as it ensures Rule of Law
and free and fair elections. The existing practice of
appointment is incompatible with Article 324(2) and
manifestly arbitrary. This is because Article 32 4(2)
mandates that Parliament should make a just, fair and
reasonable law. The provision for making a law was
rested on the hope that in due course of time, the
Government would exhibit initiative to make such a law
and ensure independence and integrity of the Members
of the Election Commission. It is contended that there
is a vacuum. No power under the constitution can be
exercised contrary to Part III of the Constitution , be
it the Executive or the Legislative power. The
Government of India (Transaction of Business ) Rules,
1961 are silent regarding the process of selection and
on the eligibility criteria. The convention invoked by
the Union of India of appointments being made from
Members of the Bure aucracy, is criticised as being not
a healthy convention. It is for the reason that it is
bereft of transparency, objectivity and neutrality.
This system is inaccessible to public. The Executive
alone being involved in the appointment, ensures that
the Commission becomes and remains a partisan Body and
a branch of the Executive. The independence of the
Commission is intimately interlinked with the process
of appointment. The concepts of power of reciprocity
and loyalty to the appointing Body, referred to in
Supreme Court Advocates -on-Record Association and
Another vs. Union of India1, is invoked. With reference
to developments said to have taken place recently ,
casting a shadow on the conduct of the Election
Commission, the Report of Justice Madan B. Lokur is
relied upon. Several instances of inaction or omission
are pointed out. This is apart from various Commissions
and Committees which have highlighted the need for a
change. This Court has stepped -in on many occasions.
It is further contended that the de mocracy is a facet
of the basic structure of the Constitution. The
appointment of Members of the Election Commission is
being done on the whims and fancies of the Executive.
The object of having an independent Election Commission
is defeated. It is further contended that the Election
Commission resolves various disput es between various
political parties including the Ruling Government and
other parties. This means that the Executive cannot be
the sole participator. The practice falls foul of
Article 14. Elaborate reference is made to the
Constituent Assembly Debates. E laborating on the powers
of the Election Commission, it is pointed out that the
power to register a political party under Section 29A
of the Representative of the People Act, 1951, has com e
up for our consideration. The ruling of this Court in
Indian Natio nal Congress v. Institute of Social Welfare
and Others ,2 that the Election Commission acts in a
quasi-judicial capacity under Section 29A is relied
upon. The Election Commission is clothed under Rules 6
and 8 of the Election Symbols (Reservation and
Allotment) Order, 1968 to recognise political parties
and allot symbols. Rule 15 of the said Order is pressed
into service to highlight that Election Commission is
empowered to take a decision with reference to
splintered and rival groups arising within already
recognized parties. There is power to withdraw and
suspend recognition for breach of duty to follow the
model code of conduct or the instructions of the
Commission (See Rule 16A of the Symbol Order). It is
blessed with the power to enforce the model code of
conduct. The Election Commission can, in exercise of
powers under Article 324(1), ban a candidate from
campaigning. The Election Commission is also empowered
to remove star campaigners. Reliance is placed on the
various Reports, which we will advert to at a later
stage. Still further, support is sought to be drawn
from the Second Judges case in Supreme Court Advocates -
on-Record Association and Others vs. Union of India ,3
and the Judgment of this Court declaring the NJAC
unconstitutional in Supreme Court Advocates -on-Record
Association and Another vs. Union of India4. The learned
Counsel also relies upon the Judgment of this Court in
Prakash Singh and Others vs. Union of I ndia and Others ,5
relating to reforms in the Police Administration. This
is besides relying on Vineet Nara in and Others vs.
Union of India and Another,6 and the Third Judges Case
in Special Reference No. 1 of 1998, R e7. It is contended
that the Court may, apart from declaring appointment
by the Executive of Members as unconstitutional, direct
the constitution of a Committee to recommend the names
for appointment on the basis of the Reports, including
the recommendations of the Law Commission of India in
its Two-Hundred and Fifty Fifth Report.
10. Shri Anup G. Choud ary, learned Senior Coun sel
assisted by Virender K. Sharma, appeared on behalf of
the petitioner. I t is pointed out that there is ad -
hocism flowing from the legislative vacuum. Regional
Commissioners have never been appointed since 1951. The
role of the Election Commission is such that in a modern
election process, it can be a bused by simply playing
with the election schedule. The instrument of
instructions which were sought even at the time of
passage of amendments to the original Article can be
filled in by judicial intervention. Appointment is
reduced only to Bureaucrats , that too, majorly IAS
Officers. The IAS Officers work in close alliance to
their political masters. Appointment must be from a
more broad -based pool of talent like Judicial Members.
The Secretariat must have sufficient manpower .
(Civil) No. 569 of 2021.
11. Shri Kaleeswaram Raj, learned Counsel for the
intervenor in Writ Petition (Civil) No. 569 of 2021
would contend that the vacuum, which is projected must
be conceded as a democratic space which the Founding
Fathers of the Constitution, left open for the future
Parliament to fill -up. It is contended that the
Constituent Assembly not being an elected Body in the
real sense, left many things to Parliament, which could
claim be tter democratic legitimacy. Relying upon the
Judges’ cases, he would submit that a parallel may be
drawn. It’s a glaring instance of legislative inaction.
Since denial of free and fair elections vitiates
Fundamental Rights of the citizens, judicial
intervention is highly necessary. The Right to Vote is
now a part of the Fundamental Right. It is contended
that, in fact, the Right to Vote is a Constitutional
Right. He invites our attention to instances in other
jurisdiction s including from neighbouring countries
like Sri Lanka.
12. The learned Attorney General, Shri R.
Venkataramani, would address the following
submissions:
Accepting the petitioners’ contention would
involve nothing less than an amendment to the
provisions of Article 324. The case of the petitioners
is based on various Reports including that of the
Central Law Commission. The premise of the petitioners’
complaint is the failure of the extant mechanism and
the reluctance or failure of the Union of India to
redress the complaint. A vacuum, which is not existent,
is suggested as the very foundation of the petitioners
claim. There is no such vacuum. The learned At torney
General would point out that introduction of the
Collegium or Body of persons to select the Chief
Election Commissioner or the Election Commissioner,
would necessitate the Court, trampling upon the
constitutional process of aid and advise of Ministe rs,
contemplated under Article 74 of the Constitution of
India. There cannot be merit in the contention that a
tenure of six years must be inexorably guaranteed.
Judicial intervention in these matters would be at the
expense of causing violence to the del icate separation
of powers between the Legislature, the Executive and
the Judiciary. The cases at hand appear to be supported
with reference to an aspirational ideal as against any
vacuum which is disclosed. A debatably better model of
selection of the Com missioner cannot form the
foundation for this Court to make a foray into the
working of constitutional provisions. Article 324(2)
contemplates clear procedure for appointment of a Chief
Election Commissioner and the Election Commissioner s.
Till a law is made, providing otherwise , the Founding
Fathers have laid down that the appointment of the
Chief Election Commissioner and other Election
Commissioners shall be by the President. Indisputably,
the Constitution of India follows the Westminster model
of Government. The powers of the President, it is well-
settled, is to be exercised on the advice of the Council
of Ministers. The President is only the formal Head of
the State. The power under Article 324(2) was always
understood to be exercised by the President , acting on
the aid and advise of the Council of Ministers. Article
77 provides for the conduct of the business of the
Government of India. Rules have been laid down
thereunder. The learned Attorney General does not
dispute that under the Rules, as laid d own, the
appointment of the Chief Election Commissioner and the
Election Commissioner s is a matter which need not
engage the attention of the Council of Ministers. The
Rules instead provide that it is the Prime Minister,
who is empowered to decide upon the person to be
appointed as the Chief Election Commissioner or the
Election Commissioner. I n other words, the President
exercises the power under Article 324(2) and he
proceeds to appoint a person as a Chief Election
Commissioner or an Election Commissioner , acting on the
advice of the Prime Minister. The contention is, it is
this system, which has been in place for the last more
than seven decades. There is no room for confusion. A
long array of Chief Election Commissioners and the
Election Commissioners ha ve been appointed by resorting
to the legitimate method contemplated under Article
324(2). It is further conten ded that there exists no
identifiable wrong or trigger point to warrant any
judicial interference. It is pointed out that elections
have been hel d and voting rights ensured to millions
of eligible voters. Nearly 68 per cent po lling took
place. The Election Commission of India, it is
contended, has entered into various agreements under
the auspices of the United Nations under which the
Election Commission of India shares its expertise and
lends its competent services for the conduct of
elections in various other countries. This is not a
case where the petitioners have been able to
demonstrate that the independence of the Chief Election
Commissioner or the Election Commissioner is under
threat. The Election Commission is regulated in the
discharge of its functions by law in every manner. The
matters re lating to the appointment of the Chief
Election Commissioner and the Election Commissioner
have been settled by the decision of this Court in T.N.
Seshan, Chief Election Commissi oner of India v. Union
of India and others8. It is pointed out that the
Election Commission (Conditions of Service of Election
Commissioners and Transaction of Business) Act, 1991
(hereinafter referred to as, ‘the 1991 Act) does not
deal with the process of selection and all the details
that may be connected to it. It is commen ded to the
Court as a matter of fact that the Election
Commissioners have been appointed from the high -ranking
Members of the Civil Services since no Government so
far has thought it fit to provide for any other source
other than the Civil Services for maki ng appointment
and the Parliament has also not intervened. The system
has worked well under Article 324(2). Any aberrations
or illegalities in the matter of appointment or acts
or omissions on the part of the appointees, lend
themselves to the correctional jurisdiction of the
superior courts under its powers of judicial review.
Section 4 of the 1991 Act does contemplate a six -year
tenure for both the Election Commissioners’ and the
Chief Election Commissioner . Based on the observations
made in T.N. Seshan (supra), Government has followed a
sound practice of a ppointing Officers from the Civil
Services. It is contended that those who are considered
for appointment, must be “ripe” enough ‘for being
inducted into the Election Commission’. The six-year
tenure is an ideal. However, strict adherence to the
same would have introduced considerable problems. This
being the position, the concept of a composite tenure
has been arrived at. In other words, the separate term
of six years, contemplated in Section 4 of the 19 91 Act
of six years each, has been understood as been
practically attained with the incumbent being selected
and appointed in such a manner that the person
appointed as an Election Commissioner can look forward
to an approximate tenure of six years, even t hough not
as Election Commissioner but as an Election
Commissioner and as a Chief Election Commissioner.
There is a database of serving/retired Officers of the
rank of Secretary to the Government of India/Chief
Secretaries. The appointees are selected from the said
database. The Minister of Law and Justice recommends a
panel for the Prime Minister and the President from the
database. Unless this Court considers non -adherence to
Section 4 of the 1991 Act, as constitut ing a subversion
of the independence of the Election Commission
requiring redress thereof, this Court need not consider
the ‘aspirational propositions’ as a principle to
occupy an ‘imagined vacuum’. The Reports relied upon
by the petitioners are based on syst ems enshrined in
other jurisdictions. It is significant that the
Constituent Assembly, though conscious of other
mechanisms, deliberately chose to adopt the method
found in Article 324(2). There is no identifiable
wrong. There is no continuing wrong either . The
decisions, laying down principles, empowering this
Court to lay down guidelines, are inapposite. The
decisions were rendered by this Court in a situation
where there clearly existed a vacuum. It is further
pointed out that the Court was invited and p ersuaded
to interfere, more importantly, when a Fundamental
Right was found to exist or a right vouch -saved under
an International Treaty. In the present batch of cases,
there is no Fundamental Right involved, which can
support any interference by this Cou rt. This is apart
from Article 324(2) laying down a procedure, signalling
the absence of any vacuum. The proof of the non -
existence of the vacuum is sought to be established by
the fact that several Chief Election Commissioners and
Election Commissioners h ave been appointed according
to need in the past. A perceived advancement in the
method of appointment, based on the Reports, including
the Law Commission of India, would scarcely furnish the
foundation for doing violence to the provisions of the
Constitut ion. We are reminded by the learned Attorney
General that this Court is being invited to apply
principles involved in the context of ordinary Statutes
to the interpretation of the Constitution itself. The
same is impermissible.
13. Relying upon Article 53, which deals with the
Executive power of the Union, it is contended that the
law contemplated under Article 324(2) is the law
contemplated under Article 53(3)(b). In the absence of
such a l aw, the President has the constitutional power.
The constitutional validity of Article 324 cannot be
considered as it is a part of the original
Constitution. The Constitution provides for a complete
machinery to deal with the appointments to the
Commission . The Vineet Nara in Judgment was dealing with
a lack of statutory enactment and not a constitutional
provision. Any potential direction to include any non -
Executive, would involve a violation of the Doctrine
of Separation of Powers. Reliance is placed on the
judgment of this Court in Samsher Singh v. State of
Punjab and Another9. Article 324(2) cannot lead to a
constitutional duty on the part of Parliament to
legislate. Reliance is placed on T.N. Seshan (supra)
to contend that the President is the appointing
Authority and that the Chief Election Commissioner
could not claim to be equated with Supreme Court
Judges. The Doctrine of Separation of Powers is
emphasised. Separation of powe rs, it is pointed out,
is a reflection of democracy itself. The learned
Solicitor General persuades the Court to exhibit
judicial restraint. A causus omissus may not justify
judicial interference. Matters relating to policy
rightfully must remain immune from the judicial radar.
What is involved in this case is essentially a
political question.
14. Shri Balbir Singh forcefully contended that there
is no vacuum and no trigger. Unlike the position
obtaining in Vishakha , there is no dire need made out.
The efficient working of the Election Commission
unerringly points to independence , informing it s
function ing. Several elections have been conducted
under its aegis. The Election Commission of India is
recognised all over the world. A utopian model cannot
be the premise for inserting guidelines, when the
existing provisions are working well. The extent of
neutrality and transparency invoked by the petitioners
cannot be a sound basis for the Court to interfere.
15. It is apposite that we understand the historical
perspective including the debates in the Constituent
Assembly. In the work, the ‘Framing of India’s
Constitution ’ by B. Shivarao, we find the following
narrative as regards the topic of Franchise and
Elections.
“Election Commission
In the Government of India Act, 1935, and in
the earlier statues the conduct of elections
was left to the executive – the Central or
Provincial Governments, according as election
to the Central or State Legislature was
concerned. In the discussions in the
Constituent Assembly, there emerged almost
from the beginning a consensus of opinion that
the right to vote should be treated as a
fundamental right of the citizen and that, in
order to enable him to exercise this right
freely, an independent machinery to control
elections should be set up, free from local
pressures and political influences.
There was considerable discussion on these
issues in the Fundamental Rights Sub -Committee
and the Minorities Sub -Committee. K.M.
Munshi’s draft articles on fundamental rights
included the following clause:
Every citizen has the right to choose the
Government and the legislators of the Union and
his State on the footing of equality in
accordance wi th the law of the Union or the
unit, as the case may be, in free, secret and
periodic elections.
This clause was considered by the Fundamental
Rights Sub -Committee at its meeting held on
March 29, 1947. The sub -committee approved that
(1) universal adult suff rage must be guaranteed
by the Constitution;
(2) elections should be free, secret and
periodic; and
(3) elections should be managed by an
independent commission set up under Union law.
To give effect to these conclusions, the
following recommendation was drafted for
inclusion in the sub -committee’s report:
(1) Every citizen not below 21 years of age
shall have the right to vote at any election
to the Legislature of the Union and of any unit
thereof, or, where the Legislature is
bicameral, to the lower chamber of the
Legislature, subject to such disqualifications
on the ground of mental incapacity, corrupt
practice or crime as may be imposed, and
subject to such qualifications relating to
residence within the appropriate constituency
as may be required by or under the law.
(2) The law shall provide for free and secre t
voting and for periodical elections to the
Legislature.
(3) The superintendence, direction and control
of all elections to the Legislature, whether
of the Union or of a unit, including the
appointment of Election Tribunals, shall be
vested in an Election Co mmission for the Union
or the unit, as the case may be, appointed in
all cases in accordance with the law of the
Union.
There was some difference of opinion about
vesting so much power in the Union in the
matter of Election Commissions. It will be seen
that, in terms of the recommendation made by
the sub -committee, the appointment of all
Election Commissions, irrespective of whether
they were to function in relation to elections
to the Legislature of the Union or in relation
to elections to the Legislature of a unit was
to be regulated by Union law. Some members of
the sub-committee felt that it would be an
infringement of the rights of the units if such
over-riding authority was given to Union law
in matters relating to elections to the
Legislatures of the units. Nevertheless the
recommendation as included in the draft was
adopted by the sub -committee by a majority
vote’.
The Minorities Sub -Committee considered these
provisions at its meeting held on April 17, and
accepted these recommendations. The only poi nt
that arose at the meeting of this Sub -Committee
was raised by Syama Prasad Mukerjee, who
thought that the minorities should be
effectively represented in these Election
Commissions. On the other hand Jairamdas
Daulatram did not think it practicable to
provide for separate representation for
minorities. He suggested that the Election
Commissions should be so constituted that they
would function as impartial bodies and inspire
confidence among all parties and communities.
Accepting this suggestion, the Min orities Sub -
Committee proposed in its report that Election
Commissions should be independent and quasi -
judicial in character.
The Advisory Committee on Fundamental Rights,
Minorities, and Tribal and Excluded Areas
considered this matter at its meetings of April
20 and 21. There was unanimous acceptance of
the principles formulated by the Fundamental
Rights Sub -Committee. Discussion centred
mainly on the question whether the chapter on
fundamental rights was the proper place for
laying down these matters whi ch pertained to
electoral law. C. Rajagopalachari was of the
view that franchise would not ordinarily be a
part of fundamental rights; and P.R. Thakur
pointed out that the proposal not only made
adult franchise compulsory, but also provided
for direct elec tions, thereby prejudging the
issue of direct elections; he expressed the
view that the Advisory Committee, dealing as
it did with fundamental rights, could not
appropriate the jurisdiction to decide on this
issue. Ambedkar, on the other hand, was clearly
and emphatically of the opinion that adult
franchise and all provision for its free and
fair exercise should be recognized as in the
nature of fundamental rights. He said:
So far as this committee is concerned, my
point is that we should support the
proposition that the committee is in favour
of adult suffrage. The second thing that we
have guaranteed in this fundamental right
is that the elections shall be free and the
elections shall be by secret voting ... We
have not said that they shall be direct or
they shall be indirect. This is a matter
that may be considered at another stage ...
The third proposition which this
fundamental clause enunciates is that in
order that elections may be free in the
real sense of the world, they shall be taken
out of the han ds of the Government of the
day, and that they should be conducted by
an independent body which we may here call
an Election Commission. We have also given
permission in sub -clause (3) of this clause
that each unit may appoint its own
Commission. The only thing is that the law
shall be made by the Union. The reason for
this is that later on there will be a clause
in the Constitution which will impose an
obligation upon the Union Government to
protect the Constitution framed by
themselves for the units. Ther efore we
suggested that the Union should have the
power of making a law, although the
administration of that law may be left to
the different units.
There was unanimous support for the principles
enunciated by Ambedkar but Rajagopalachari
argued that it wo uld not be proper to deal with
this issue as a fundamental right. It could not
be taken for granted, he said, that the Union
Legislature would be elected by the direct vote
of all citizens from all India. He therefore
suggested that these matters relating to
franchise should be dealt with when they arose
in connection with the Constitution and not be
prejudged as fundamental rights. Eventually a
compromise solution suggested by Govind
Ballabh Pant was adopted, and it was decided
that these recommendations n eed not go as part
of the clauses on fundamental rights; but that
in the letter forwarding the report of the
Advisory Committee the Chairman should make it
clear that the committee recommended the
adoption of these proposals.
In accordance with this decisi on the Advisory
Committee recommended that, instead of being
included in the chapter of fundamental rights,
the provision regarding the setting up of an
independent Election Commission, along with
the other two proposals regarding adult
franchise and free and fair elections to be
held periodically, should find a place in some
other part of the Constitution.
In his memorandum on the principles of a model
Provincial Constitution circulated on May 30,
1947, B.N. Rau, the Constitutional Adviser,
included a prov ision that the superintendence,
direction and control of elections, including
the appointment of election tribunals, should
be vested in the Governor acting in his
discretion, subject to the approval of the
Council of State. Likewise, in the memorandum
on the Union Constitution, circulated on the
same date, he included a similarly
comprehensive provision that the control of
central elections, including the appointment
of election tribunals, should be vested in the
President acting in his discretion; the
intention of this provision was to make
available to the President the advice of the
Council of State.
The Provincial Constitution Committee in its
report of June 27, 1947, accepted the
suggestions in the Constitutional Adviser’s
memorandum but deleted the re ference to the
approval of the Council of State. The Union
Constitution Committee deleted all the
suggestions for the exercise of discretionary
powers by the President and also the proposal
for a Council of State. The committee however
took a definite step in the direction of a
centralized authority in the matter of
elections: according to its recommendations,
all powers of supervision, direction and
control in respect of the federal as well as
provincial elections would be vested in a
Commission to be appo inted by the President.
The Union Powers Committee expanded this
proposal by the inclusion in the Federal
Legislative List of the subject “All Federal
elections: and Election Commission to
superintend, direct and control all Federal and
Provincial election s”.
The provisions suggested in the model
Provincial Constitution came up for discussion
in the Constituent Assembly on July 18, 1947.
The Constitutional Adviser in his Draft
Constitution of October, 1947 provided that the
superintendence, direction and control of all
elections to the Federal parliament and
Provincial Legislatures (including the
appointment of Election Tribunals for the
decision of doubts and disputes in connection
with elections to Parliament and to Provincial
Legislatures) and of all elections to the
offices of President, Vice -President, Governor
and President. The Drafting Committee altered
this scheme and in its draft the power of
appointing an Election Commission for
supervising elections to the office of Governor
and to the State Legislature was vested in the
Governor. The Drafting Committee expressed the
definite opinion that the Election Commission
for provincial elections should be appointed
by the Governor. This view underwent a radical
change subsequently and on Jun e 15, 1947, when
the article came up for discussion in the
Constituent Assembly, Ambedkar introduced a
new article which made comprehensive provision
for a Central Election Commission to be in
charge of all Central and State elections.”
16. Draft Article 289 went on to blossom into Article
324 of the Constitution. Regarding the Draft Article
289 it is apposite that we notice the following
developments and discussions. On 15th June, 1949, the
following discussions are noticed. Am endment No.99 was
moved by Dr. B.R. Ambedkar to the original Article 289 .
The original Article 289 read as follows:
“289. The superintendence, directions and
control of elections to be vested in an
Election Commission.
(1) The superintendence, direction and control
of the preparation of the electoral rolls for,
and the conduct of, all elections to Parliament
and to the Legislature of every State and of
elections to the offices of President and Vice -
President held under this Constitution,
including the appointment of election
tribunals for the decision of doubts and
disputes arising out of or in connection with
elections to Parliament and to the Legislatures
of States shall be vested in a Commission
(referred to in his Constitution as the
Election Commission) to be appointed by the
President.
(2) The Election Commission shall consist of
the Chief Election Commissioner an d such number
of other Election Commissioners, if any, as the
President may, from time to time appoint, and
when any other Election Commissioner is so
appointed, the Chief Election Commissioner
shall act as the Chairman of the Commission.
(3) Before each general election to the House
of the People and to the Legislative Assembly
of each State and before the first general
election and thereafter before each biennial
election to the Legislative Council of each
State having such Council, the President shall
also appoint after consultation with the
Election Commission such Regional
Commissioners as he may consider necessary to
assist the election Commission in the
performance of the functions conferred on it
by clause (1) of this article.
(4) The conditions of service and tenure of
office of the Election Commissioners and the
Regional Commissioners shall be such as the
President may by rule determine: Provided that
the Chief Election Commissioner shall not be
removed from the office except in like manner
and on the like grounds as a judge of the
Supreme Court and the conditions of the service
of the Chief Election Commissioner shall not
be varied to his disadvantage after his
appointment: Provided further that any other
Election Commissioner or a Regional
Commissioner shall not be removed from office
except on the recommendation of the Chief
Election Commissioner.
(5) The President or the Governor or Ruler of
a State shall, when so requested by the
Election Commission, make available to the
Election Commission o r to a Regional
Commissioner such staff as may be necessary for
the discharge of the functions conferred on the
Election Commission by clause (1) of this
article.”
17. The amendment moved contemplated substitution of
the original Article 289 inter alia as fol lows:
“(2) The Election Commission shall consist of
the Chief Election Commissioner and such number
of other Election Commissioners, if any, as the
President may, from time to time appoint, and
when any other Election Commissioner is so
appointed, the Chie f Election Commissioner
shall act as the Chairman of the Commission.
Xxx xxx xxx
(4) The conditions of service and tenure of
office of the Election Commissioners and the
Regional Commissioners shall be such as the
President may by rule determine:
Provided that the Chief Election Commissioner
shall not be removed from the office except in
like manner and on the like grounds as a judge
of the Supreme Court and the conditions of the
service of the Chief Election Commissioner
shall not be varied to his disadvantage after
his appointment:
Provided further that any other Election
Commissioner or a Regional Commissioner shall
not be removed from office except on the
recommendation of the Chief Election
Commissioner. ”
18. Dr. B.R. Ambedkar had this to state inter alia:
“The House will remember that in a very early
stage in the proceedings of the Constituent
Assembly, a Committee was appointed to deal
with what are called Fundamental Rights. That
Committee made a report that it should be
recognised that the independence of the
elections and the avoidance of any interference
by the executive in the elections to the
Legislature should be regarded as a fundamental
right and provided for in the chapter dealing
with Fundamental Rights. When the matter came
up before the House, i t was the wish of the
House that while there was no objection to
regard this matter as of fundamental
importance, it should be provided for in some
other part of the Constitution and not in the
Chapter dealing with Fundamental Rights. But
the House affirme d without any kind of dissent
that in the interests of purity and freedom of
elections to the legislative bodies, it was of
the utmost importance that they should be freed
from any kind of interference from the
executive of the day. In pursuance of the
decision of the House, the Drafting Committee
removed this question from the category of
Fundamental Rights and put it in a separate
part containing articles 289, 290 and so on.
Therefore, so far as the fundamental question
is concerned that the election mach inery should
be outside the control of the executive
Government, there has been no dispute. What
article 289 does is to carry out that part of
the decision of the Constituent Assembly. It
transfers the superintendence, direction and
control of the preparat ion of the electoral
rolls and of all elections to Parliament and
the Legislatures of States to a body outside
the executive to be called the Election
Commission. That is the provision contained in
sub-clause (1).
Sub-clause (2) says that there shall be a Chief
Election Commissioner and such other Election
Commissioners as the President may, from time
to time appoint. There were two alternatives
before the Drafting Committee, namely, either
to have a permanent body consisting of four or
five members of the Election Commission who
would continue in office throughout without any
break, or to permit the President to have an ad
hoc body appointed at the time when there is
an election on the anvil. The Committee, has
steered a middle course. What the Drafting
Committee proposes by sub -clause (2) is to have
permanently in office one man called the Chief
Election Commissioner, so that the skeleton
machinery would always be available. Election
no doubt will generally take place at the end
of five years; but there is this question,
namely that a bye -election may take place at
any time. The Assembly may be dissolved before
its period of five years has expired.
Consequently, the electoral rolls will have to
be kept up to date all the time so that the
new election may tak e place without any
difficulty. It was therefore felt that having
regard to these exigencies, it would be
sufficient if there was permanently in session
one officer to be called the Chief Election
Commissioner, while when the elections are
coming up, the P resident may further add to the
machinery by appointing other members to the
Election Commission.
Now, Sir, the original proposal under article
289 was that there should be one Commission to
deal with the elections to the Central
Legislature, both the Uppe r and the Lower
House, and that there should be a separate
Election Commission for each province and each
State, to be appointed by the Governor or the
Ruler of the State. Comparing that with the
present article 289, there is undoubtedly, a
radical change. This article proposes to
centralize the election machinery in the hands
of a single Commission to be assisted by
regional Commissioners, not working under the
provincial Government, but working under the
superintendence and control of the central
Election Commission. As I said, this is
undoubtedly a radical change. But, this change
has become necessary because today we find that
in some of the provinces of India, the
population is a mixture …”
(Emphasis supplied)
19. Professor Shibban Lal Saksena gave notice of an
amendment to the amendment to Article 289 which , inter
alia, stated that after the word ‘appoint’ in clause
(2), the words “subject to confirmation by two -third
majority in a joint session of both the Houses of
Parliament” be inserted. He also proposed that in
clause (4), the words “Parliament may by law determine”
be substituted for the words “President may b y rule
determine”. There were certain other amendments
proposed by Prof. Saksena. Prof. Saksena further went
on to make the following sta tement:
“..Of course it shall be completely independent
of the provincial Executives but if the
President is to appoint this Commission,
naturally it means that the Prime Minister
appoints this Commission. He will appoint the
other Election Commissioners o n his
recommendations. Now this does not ensure their
independence… ”
Xxx xxx xxx
“So what I want is this that even the person
who is appointed originally should be such that
he should be enjoying the confidence of all
parties—his appointment should be confirmed
not only by majority but by two -thirds majority
of both the Houses. If it is o nly a bare
majority, then the party in power could vote
confidence in him but when I want 2/3rd
majority it means that the other parties must
also concur in the appointment so that in order
that real independence of the Commission may
be guaranteed, in ord er that everyone even in
opposition may not have anything to say against
the Commission, the appointments of the
Commissioners and the Chief Election
Commissioner must be by the President but the
names proposed by him should be such as command
the confiden ce of two -thirds majority of both
the Houses of Legislatures. ”
xxx xxx xxx
“I want that in future, no Prime Minister
may abuse this right, and for this I want to
provide that there should be two -thirds
majority which should approve the nomination
by the President. Of course there is danger
where one party is in a huge majority. As I
said just now it is quite possible that if our
Prime Minister wants, he can have a man of his
own party, but I am sure he will not do it.
Still if he does appoint a party -man, and the
appointment comes up for confirmation in a
joint session, even a small opposition or even
a few independent members can down the Prime
Minister before the bar of public opinion in
the world. Because we are in a majority we can
have anything pa ssed only theoretically. So the
need for confirmation will invariably ensure a
proper choice. ”
(Emphasis Supplied)
20. On 16th June 1949 , we notice that Shri H.V. Pataskar
stated as follows:
“As I said, so far as I can see, article 289(2)
is quite enough for the purpose. Even under
article 289(2) we can appoint not merely some
officials of the Government as Election
Commissioners, but people of the position of
High Court Judges; we can make them permanent;
we can make them as Independent as we are
trying to make them in the case of the Central
Commission. ”
(Emphasis Supplied)
21. Pandit Hirday Nath Kunzru addressed the following
concerns and suggested as follows:
“Here two things are noticeable: the first is
that it is only the Chief Election Commissioner
that can feel that he can discharge his duties
without the slightest fear of incurring the
displeasure of the executive, and the second
is that the removal of the other Election
Commissioners will depend on the
recommendations of one man only, namely the
Chief Election Commissioner. However
responsible he may be, it seems to me very
undesirable that the removal of his colleagues
who will occupy positions as responsi ble as
those of judges of the Supreme Court should
depend on the opinion of one man. We are
anxious, Sir, that the preparation of the
electoral rolls and the conduct of elections
should be entrusted to people who are free from
political bias and whose impa rtially can be
relied upon in all circumstances. But, by
leaving a great deal of power in the hands of
the President we have given room for the
exercise of political influence in the
appointment of the Chief Election Commissioner
and the other Election Com missioners and
officers by the Central Government. The Chief
Election Commissioners will have to be
appointed on the advice of the Prime Minister,
and, if the Prime Minister suggests the
appointment of a party -man the President will
have no option but to a ccept the Prime
Minister's nominee, however unsuitable he may
be on public grounds . (Interruption ). Somebody
asked me suitable why it should be so. ”
xxx xxx xxx
“My remedy for the defects that I have pointed
out is that Parliament should be authorised to
make provision for these matters by law. Again,
Sir, this article does not lay down the
qualifications of persons who are chosen as
Chief Election Commissioners or as Election
Commissioners. And, as I have already pointed
out, in the matter o f removal, the Election
Commissioners are not on the same footing as
the Chief Election Commissioner. ”
(Emphasis Supplied)
22. Shri K.M. Munshi expressed the following views:
“Between two elections, normally there would
be a period of five years. We cannot have an
Election Commission sitting all the time during
those five years doing nothing. The Chief
Election Commissioner will continue to be a
whole-time officer performing the duties of his
office and looking after the work from day to
day, but when major elections take place in the
country, either Provincial or Central, the
Commission must be enlarged to cope with the
work. More members therefore have to be added
to the Commis sion. They are no doubt to be
appointed by the President, but as the House
will find, they are to be appointed from time
to time. Once they are appointed for a
particular period they are not removable at the
will of the President. Therefore, to that
extent their independence is ensured. So there
is no reason to believe that these temporary
Election Commissioners will not have the
necessary measure of independence. Any way the
Chief Election Commissioner an independent
officer, will be the Chairman and being a
permanent officer will have naturally
directing and supervising power over the whole
Commission. Therefore, it is not correct to say
that independence of the Commission is taken
away to any extent.
We must remember one thing, that after all an
election department is not like a judiciary, a
quasi-independent organ of Government. It is
the duty and the function of the Government of
the day to hold the elections. The huge
electorates which we are putting up now, the
voting list which will run into several c rores—
all these must necessarily require a large army
of election officers, of clerks, of persons to
control the booths and all the rest of them.
Now all this army cannot be set up as a
machinery independent of Government. It can
only be provided by the Ce ntral Government, by
the Provincial Government or by the local
authorities as now. It is not possible nor
advisable to have a kingdom within a kingdom,
so that the election matters could be left to
an entirely independent organ of the
Government. A machine ry, so independent,
cannot be allowed to sit as a kind of Super -
Government to decide which Government shall
come into power. There will be great political
danger if the Election Tribunal becomes such a
political power in the country. Not only it
should preserve its independence, but it must
retain impartiality. Therefore, the Election
Commission must remain to a large extent an
ally of the Government; not only that, but it
must, a considerable extent, be subsidiary to
Government excep t in regard to the discharge
of the functions allotted to it by law.
“Therefore, the Parliament as well as the State
Legislatures are free to make all provisions
with regard to election, subject, of course, to
this particular amendment, namely, the
superintendence, direction and control of the
Election tribunal. Today, for instance, the
elections re controlled by officers appointed
either by the Center or the Provinces as the
case may be. What is now intended is that they
should not be subjected to the d ay-to-day
influence of the Government nor should they be
completely independent of Government, and
therefore a sort of compromise has been made
between the two positions; but I agree with my
honourable Friend, Pandit Kunzru that for the
sake of clarity, at any rate, to allay any
doubts clause (2) requires a little amendment.
At the beginning of clause (2) the following
words may be added; “subject to the provisions
of law made in this behalf by Parliament .”
(Emphasis Supplied)
23. Dr. B.R. Ambedkar made the following remarks:
“Now with regard to the question of appointment
I must confess that there is a great deal of
force in what my Friend Professor Saksena said
that there is no use making the tenure of the
Election Commissioner a fixed and secure tenure
if there is no provision in the Constitution
to prevent either a fool or a knave or a person
who is likely to be under the thumb of the
Executive. My provision —I must admit -—does not
contain anything to provide against nomination
of an unfit person to the post of the Chief
Election Commissioner or the other Election
Commissioners. I do want to confess that this
is a very important question and it has given
me a great deal of headache and I have no doubt
about it that it is going to give this House a
great deal of headache . In the U.S.A. they have
solved this question by the provision contained
in article 2 Section (2) of their Constitution
whereby certain appointments which are
specified in Section (2) of article 2 cannot
be made by the Presid ent without the
concurrence of the Senate; so that so far as
the power of appointment is concerned, although
it is vested in the President it is subject to
a check by the Senate so that the Senate may,
at the time when any particular name is
proposed, make enquiries and satisfy itself
that the person proposed is a proper person.
But it must also be realised that that is a
very dilatory process, a very difficult
process. Parliament may not be meeting at the
time when the appointment is made and the
appointme nt must be made at once without
waiting. Secondly, the American practice is
likely and in fact does introduce political
considerations in the making of appointments.
Consequently, while I think that the provisions
contained in the American Constitution is a
very salutary check upon the extravagance of
the President in making his appointments, it
is likely to create administrative
difficulties and I am therefore hesitating
whether I should at a later stage recommend the
adoption of the American provisions in our
Constitution. The Drafting Committee had paid
considerable attention to this question
because as I said it is going, to be one of
our greatest headaches and as a via media it
was thought that if this Assembly would give
or enact what is called an Inst rument of
Instructions to the President and provide
therein some machinery which it would be
obligatory on the President to consult before
making any appointment, I think the
difficulties which are felt as resulting from
the American Constitution may be ob viated and
the advantage which is contained therein may
be secured . At this stage it is impossible for
me to see or anticipate what attitude this
House will take when the particular draft
Instructions come before the House. If the
House rejects the proposa l of the Drafting
Committee that there should be an Instrument
of Instructions to the President which might
include, among other things, a provision with
regard to the making of appointments, this
problem would then be solved by that method .
But, as I said , it is quite difficult for me
to anticipate what may happen. Therefore in
order to meet the criticism of my honourable
Friend Professor Saksena, supported by the
criticism of my honourable Friend Pandit
Kunzru, I am prepared to make certain
amendments in amendment No. 99. I am sorry I
did not have time to circulate these
amendments, but when I read them the House will
know what I am proposing .”
(Emphasis Supplied)
24. Thereafter, he proposed that an amendment which
read as follows:
“The appointment of the Chief Election
Commissioner and other Election Commissioners
shall, subject to the provisions of any law
made in this behalf by Parliament , be made by
the President.”
(Emphasis Supplied)
25. We notice that the amendment which was proposed by
Professor Shibban Lal Saksena which we have noticed
came to be negatived and the amendment which was
proposed by Dr. B.R. Ambedkar was adopted . Thus,
Article 289 as amended was added to the Constitution.
It is this Article which appears in the Constitution
as Article 324.
26. At this stage, we may only notice the following
comment, however, in the work by B Shiva Rao: -
“By leaving a great deal of power in hands of
the President, it gave room for the exercise
of political influence by the Centra l
Government in the appointment of the Chief
Election Commissioner and the other Election
Commissioners. His remedy was that Parliament
should be authorized to make provision for
these matters by law. K.M. Munshi, while
supporting Ambedkar’s proposal sugge sted in
order to meet Kunzru’s criticism an amendment
requiring that the appointment of the Chief
Election Commissioner and the other Election
Commissioners would be subject to law made by
Parliament; and that the power of the President
to make rules regul ating their conditions of
service would likewise be subject to any law
made by Parliament. With these modifications
the article was adopted: at the revision stage
it was numbered as article 324.”
27. The Constituent Assembly of India can proximately
be traced to the deliberations of the cabinet mission.
The broad features were as follows. The members of the
constituent assembly were to be elected not on the
basis of adult suffrage. At the time, i.e., in 1946,
India was still under British rule . British India
broadly consisted of the Governors provinces and the
Chief Commissioner’s provinces. There were also a large
number of princely states . An interim government, no
doubt, based on elections, was put in place. There were
also at the same time , provincial legislative bodies.
The members of the Constituent Assembly came to be
elected by the members of the provincial assemblies and
they were not directly elected by the people of the
country as such. Shri Kaleeswaram Raj is, therefore,
correct that the Constituent Assembly was not directly
elected by the people. There were changes which were
necessitated by the partition. Suffice it to note that
there were 238 members representing the Governors and
others provinces . This is besides 89 sent by the
princely states. The first meeting of the Assembly was
held on 9th December, 1946. One Shri B.N. Rau was
appointed as the constitutional advisor. He made a
draft constitution. A drafting committee, drawn from
the members of the constituent assembly in turn with
the help of the Secretariat as well, brought out two
drafts further, which in turn, were published . Public
discussion ensued. Thereafter, the draft articles were
discussed in the constituent assembly. There were
further amendments . It is to be noticed also that the
humongous task necessarily led to the creation of
several committees. The most prominent of them can be
perceived as the drafting committ ee, the advisory
committee and various sub -committees which included the
sub-committee on fundamental rights.
28. In regard to the use of Constituent Assembly
debates, the law has not stood still. At any rate,
whatever may be the controversy, as regards its
employment to discern, the purport of a provision there
can be no taboo involved in its use to understand the
history of a provision under the Constitution and the
various steps leading up to and accompanying its
enactment. In this regard, we may refer to the
following view expressed in His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kerala and Another10:
“1598. If the debates in the Constituent
Assembly can be looked into to understand the
legislative history of a provision of the
Constitution including its derivation, that
is, the various steps leading up to and
attending its enactment, to ascertain the
intention of the makers of the Constitution,
it is difficult to see why the debates are
inadmissible to throw light on the purpose and
general intent of the provision. After all,
legislative history only tends to reveal the
legislative purpose in enacting t he provision
and thereby sheds light upon legislative
intent. It would be drawing an invisible
distinction if resort to debates is permitted
simply to show the legislative history and the
same is not allowed to show the legislative
intent …”
(Emphasis supplied)
29. In fact, in a recent Judgment by Justice Ashok
Bhushan, which is partly concurring and partly
dissenting, reported in Dr. Jaishri Laxmanrao Patil v.
Chief Minister and others11, has approved, after
referring to the decisions of this Court on the point,
‘the use of Constituent Assembly debates’.
30. The members of the Constituent Assembly were
undoubtedly concerned over the need to ensure
independence of the Election Commission. Under the
Government of India Act, 1935, the earlier law, it was
the Executive which was conferred the power to conduct
the election. Initially, there was a consensus of
opinion, in fact, that the right to vote was to be made
a fundamental right. In fact, in the draft Article by
Shri K.M. Munshi, he contemplated provi ding for right
to choose for every citizen and a free secret and
periodic election. The Fundamental Right s Sub-
Committee also approved that there must be universal
adult franchise guaranteed by the Constitution. The
election was to be free, secret and peri odic. Most
importantly, the Fundamental Rights Sub-Committee in
the meeting held on 29.03.1947 contemplated that an
independent Commission must be set up under Union law .
A recommendation providing for an Election Commission
being appointed in all cases with the law of the Union
was made. Further, i t becomes clear from a perusal of
the work ‘Framing of India’s Constitution ’ by B. Shiva
Rao that some disputes arose relating to so much power
being conferred on the Union in the matter of
elections. The dispute essentially related to clothing
the Commission with power to conduct elections in
regard to the State Legislatures , besides the Union
Legislature. The Minority Sub-Committee also made a
report that the Election Commission should be
independe nt and quasi -judicial in character. The
Advisory Committee on Fundamental Rights, M inority,
Tribal and Excluded Area also accepted the principles
formulated by the Fundamental Right s Sub-Committee .
However, the view was expressed by Shri C.
Rajagopalachar i that the right to vote should not be a
part of fundamental right. Dr. Ambedkar, however,
specifically opined that in order that election may be
free in the real sense of the word , they shall be taken
out of the hands of the government of the day , and be
conducted by the independent body called the Election
Commission. Shri C. Rajagopalachari, however,
persevered with the theme that the matter relating to
franchise may not find itself among the provision s
providing for Fundamental Rights. Shri Gov ind Vallabh
Pant suggested a compromise and the Advisory Committee
thereby recommended that instead of being included in
the Chapter o n Fundamental Right s, the provisions
relating to franchise and to an independent Election
Commission should be located in another part of the
Constitution. In his work, the Framing of India’s
Constitution, by B. Shivarao has not minced words by
commenting that by leaving a great deal of power in the
hands of the President , it gave room for exercising
political influence in t he appointment of the Election
Commissioner and other election commissioners. The
remedy, it was found, which was contemplated was, that
the Parliament would make a law to regulate the matter.
As we have noticed, there was severe criticism,
particularly by Shri Kunzuru and Professor Shiben Lal
Saxena, and it was thereupon, that Shri K.M. Munshi
while supporting Ambedkar’s amendment to the original
article, recommended that the appointment be subject
to the law made by the Parliament. It is on this
fundamental basis that the amendment which was proposed
by Dr. Ambedkar to the original article was adopted.
31. Professor Saxena was emphatic that the draft
amended Article 289, which contemplated appointment
being made by the President, without anything more,
would necessarily mean that the Prime Minister would
end up appointing the Commission. He warned that it
would not ensure their independence. He was clear that
in future, no Prime Minister should abuse the right to
appoint. Shri H.V. Pataskar felt Article 289(2)
sufficed. The thought which comforted the Member was
not merely some official of the Government could be
appointed as Election Commissioners but people in the
position of High Court Judges. Pandit Hirday Nath
Kunzru clearly articulated the anxiety a nd the need for
the preparation of the electoral roll and the conduct
of the elections, being entrusted to people, who were
free from political bias and whose impartiality could
be relied upon ‘in all circumstances’. The plight of
the President, who has to act on the advice of the
Prime Minister, was highlighted. It was the learned
Member, who suggested the remedy for the defect, that
is that the Parliament should be authorised to make
provisions for these matters, by law. This was also the
view of the Sub-Committee on Fundamental Rights. Shri
K. M. Munshi, took the view that the Election
Commission must remain to a large extent an ally of the
Government. The pursuit of independence of the Election
Commission, he felt, should not result in there arising
‘a kingdom within a kingdom’. It was not to be a quasi -
independent organ of the Government. This is on the
basis that the Election Commission would necessarily
have to rely upon Officers, who would have to be
provided by the Government. Finally, we find Dr.
Ambedkar acknowledging the existence o f a great deal
of merit in the fear that guaranteeing a fixed and
secured tenure, was of no use, if there was no provision
in the Constitution, which would stand in the way of
either an incompetent or unfair official, becoming and
running the Election Comm ission. In particular, Dr.
Ambedkar foresaw the danger of the Election
Commissioners, being persons who were likely to be
under the control of the Executive. The provision, as
proposed to be amended by Dr. Ambedkar, it was admitted
by Dr. Ambedkar himself, did not provide against an
‘unfit’ person being appointed to the Election
Commission. Thereafter, he predicted that the question
will emerge as one of the greatest headaches. He found
solace in the prospect of an instrument of instructions
being issued to the President, which would guide the
President in the matter of appointment to the Election.
Noticing the uncertainty about the prospect, however,
it was and to allay the apprehensions voiced by both
Professor Saxena and Pandit Kunzru, that Article
324(2), as it presently obtains, came to be proposed
by way of the amendment to the amendment of the original
Article. In other words, before the words ‘ be made by
the President ’, the words ‘subject to provisions of any
law made in this behalf by Parliament’. ca me to be
inserted .
32. We understand the historical perspective, and the
deliberations of the Fundamental Rights Sub -Committee,
the Drafting Committee and the other Sub -Committees
and, finally, of the Constituent Assembly itself, to
be as follows:
A golden thread runs through these proceedings.
All the Members were of the clear view that
election must be conducted by an independent
Commission. It was a radical departure from the regime
prevailing under the Government of India Act, 1935. The
Members v ery well understood that providing for
appointment of Members of the Election Commission by
the President would mean that the President would be
bound to appoint the Election Commissioner solely on
the advice of the Executive, which, in a sense, was
understood as on the advice of the Prime Minister. The
model of appointment prevailing in the United States
was deliberated and not approved. Though, Shri K. M.
Munshi was not in favour of giving complete
independence to the Election Commission and felt that
it should be an ally of the Government, it clearly did
not represent the views of the predominant majority of
the Members. Right to Vote was, to begin with,
considered so sacrosanct that it was originally
contemplated as a Fundamental Right. However, finally,
as we have already noticed , it was found more
appropriate that it should be contained in a separate
part of the Constitution, which is the position
obtaining under the Constitution. It is equally clear
that the Members of the Committees, including the
Constituent Assembly, wanted t he appointment to the
Election Commission not to be made by the Executive.
The uncertain prospect of an instrument of
instructions, finally led the Assembly to adopt the
amendment suggested by Dr. Ambedkar, which, as we have
noticed, was initially the sugg estion made by Pandit
Kunzru, and what is more, even seconded by Shri K. M.
Munshi. In short, what the Founding Fathers clearly
contemplated and intended was, that Parliament would
step-in and provide norms, which would govern the
appointment to such a uni quely important post as the
post of Chief Election Commissioner and the Election
Commissioners. In this regard, we notice the final
words of Dr. Ambedkar in regard to the debate
surrounding Article 324, was that he felt sorry that
he did not have time to c irculate the amendments.
33. It is important that we understand that when the
Founding Fathers, therefore, inserted the words
‘subject to the provisions of any law to be made by
Parliament’, it was intended that Parliament would make
a law. While we would no t go, so far as to hold that
Parliament was under a compellable duty, which this
Court can enforce by a Mandamus, to make a law, all
that we are finding is that the Constituent Assembly
clearly intended that Parliament must make a law within
the meaning of Article 324(2). Such an understanding
of Article 324(2) may be contrasted with similar
provisions in the Constitution, which also contemplated
enabling the making of law by Parliament. This brings
us to the question relating to an evaluation of similar
provisions in the Constitution.
34. One of the contentions of the respondent -Union is
that this Court must bear in mind the snowballin g
effect of the interpretation canvassed by the
petitioners being accepted on other situations governed
by other Articles.
35. Articles in the Constitution, which employ the
words ‘subject to any law’ to be made by Parliament as
contained in Article 324.
36. Article 98 provides that each House of Parliament
shall have a separate Secretarial Staff. Article 98(2)
provides that Parliament may, by law, regulate the
recruitment and conditions of the staff. Article 98(3)
empowers the President, in consultation with the
Speaker of the House of People or Chairman of the
Council of States, to make Rules, till Parliament makes
law. Apart from the dissimilarity, it is to be noticed
that, even in the matter governed by Article 98, if not
law, Rules are to govern.
37. Article 137 declares that, subject to the
provisions of any law made by Parliament or Rules made
under Article 145, Supreme Court shall have the power
of review. It will be noticed that in the first place,
the Supreme Court has framed rules, regulating the
power to review. The absence of a law made by Parliament
would have little effect. The purport of Article 137
has absolutely no comparison with Article 324(2).
Article 142(2) uses the same expression, viz., ‘subject
to the provisions of any law made by Parliament ’ and
it provides that the Supreme Court is to have power for
ordering the attendance of any person, the discovery
or protection of any document or the investigation or
punishment for any contempt. Patently, the absence of
any law under Article 142 cannot produce the impact,
which Article 324(2) is capable of producing and, what
is more, vouchsafed by the debates in the Constituent
Assembly.
38. Article 145 uses the expression ‘subject to the
provisions of any law made by Parliament’ , Supreme
Court can make Rul es for regulating the practice and
procedure of the Court. It is self -evident that it
bears no resemblance to the context, purpose and
background of Article 324(2).
39. Article 146 of the Constitution of India reads as
follows:
“146. Officers and servants and the expenses
of the Supreme Court
(1) Appointments of officers and servants of
the Supreme Court shall be made by the Chief
Justice of India or such other Judge or officer
of the Court as he may direct: Provided that
the President may by rule require that in such
cases as may be specified in the rule, no
person not already attached to the Court shall
be appointed to any office connected with the
Court, save after consultation with the Union
Public Service Commission
(2) Subject to the provisions of any law made
by Parliament, the conditions of service of
officers and servants of the Supreme Court
shall be such as may be prescribed by rules
made by the Chief Justice of India or by some
other Judge or officer of the Court authorised
by the Chief Justice of India to make rules
for the purpose: Provided that the rules made
under this clause shall, so far as they relate
to salaries, allowances, leave or pensions,
require the appro val of the President
(3) The administrative expenses of the Supreme
Court, including all salaries, allowances and
pensions payable to or in respect of the
offices and servants of the Court, shall be
charged upon the Consolidated Fund of India,
and any fees or other moneys taken by the court
shall form part of that Fund.”
40. Article 14 6(2) is essentially a matter which deals
with the conditions of service of Officers and Servants
of Supreme Court. In regard to the said employees, the
Founding Fathers have provided for Rule -making power
with the Chief Justice of India. We are clear in our
minds that apart from the fact, the rule -making power
is lodged with the Chief Justice of India, there cannot
be any valid comparison between the employees of the
Supreme Court and the members of the Election
Commission. There is no safeguard provided against the
removal as is contemplated for the Chief Election
Commissioner a nd Election Commissioners . Article 148
deals with appointment of the Comptroller and Auditor
General of India. It reads as follows:
“148. Comptroller and Auditor General of India
(1) There shall be a Comptroller and Auditor
General of India who shall be appointed by the
President by warrant under his hand and seal
and shall only be removed from offi ce in like
manner and on the like grounds as a Judge of
the Supreme Court
(2) Every person appointed to be the
Comptroller and Auditor General of India shall,
before he enters upon his office, make and
subscribe before the President, or some person
appointed in that behalf by him, an oath or
affirmation according to the form set out for
the purpose in the Third Schedule
(3) The salary and other conditions of service
of the Comptroller and Auditor General shall
be such as may be determined by Parliament by
law and, until they are so determined, shall
be as specified in the Second Schedul e:
Provided that neither the salary of a
Comptroller and Auditor General nor his rights
in respect of leave of absence, pension or age
of retirement shall be varied to his
disadvantage after his appointment
(4) The Comptroller and Auditor General shall
not be eligible for further office either under
the Government of India or under the Government
of any State after he has ceased to hold his
office
(5) Subject to the provisions of this
Constitution and of any law made by Parliament,
the conditions of service of persons serving
in the Indian Audit and Accounts Department and
the administrat ive powers of the Comptroller
and Auditor General shall be such as may be
prescribed by rules made by the President after
consultation with the Comptroller and Auditor
General
(6) The Administrative expenses of the office
of the Comptroller and Auditor General,
including all salaries, allowances and
pensions payable to or in respect of pensions
serving in that office, shall be charged upon
the Consolidated Fund of India.”
41. As far as the appointment of the Comptroller and
Auditor General is concerned, it is governed by Article
148(1) and the Founding Fathers have provided beyond
the pale of any doubt that the appointment of the
Comptroller and Auditor General, vital and
indispensable as he is for the affairs of the nation,
his appointment is to be made by the President. The
safeguard, however, considered suitable to ensure his
independence has been declared by providing that the
CAG can be removed only in like manner and on like
grounds as a Judge of the Supreme Court. In stark
contrast, Article 324(2) has, while it has provided for
the appointment of the Chief Election Commissioner and
the Election Commissioners by the President, it has
been made subject to a law to be made by the Parliament .
No such provision is provided in Article 148(1) . We
cannot be oblivious to the fact that this is apart from
providing for the safeguard in the first proviso to
Article 324(5) that the Chief Election Commissioner
shall not be removed exce pt in like manner and like
grounds as a Judge of Supreme Court of India. Still
further, there is a third distinguishing feature
between the Chief Election Commissioner and the CAG
again located in the first proviso to Article 324(5).
It is declared that th e conditions of service of the
Chief Election Commissioner shall not be varied to his
disadvantage after his appointment. The Chief Election
Commissioner and Election Commissioners stand on a far
higher pedestal in the constitutional scheme of things
having regard to the relationship between their powers,
functions and duties and the upholding of the
democratic way of life of the nation, the upkeep of
Rule of Law and the very immutable infusion of life
into the grand guarantee of equality under Article 14.
42. Article 187 provides for a Secretariat for the
State Legislature. Except for the difference in the
Legislative Body being the State Legislature and the
Governor taking the place of the President, it mirrors
Article 98 of the Constitution.
43. Article 229 deal s with Officers, servants and
expenses of High Court. There cannot be any valid
comparison between the Chief Election Commissioner and
the Election Commissioners contemplated under Article
324(2) and the Officers and servants of the High Court.
The very fa ct that Officers covered by Article 229(2)
are not extended any protection against removal, itself
not merely furnishes a significant starting point but
may itself be conclusive of the dissimilarity between
the persons associated with the Central Election
Commission and the employees covered by Article 229(2).
44. Article 229(2) deals with the Officers, expense
and servants of the High Court. Since Article 229 is
pari materia with Article 146(2), we would find merit
in the same rationale, which we have furnish ed for not
comparing the employees with the persons governed by
Article 324(2).
45. Article 243(k) is part of Part IX of the
Constitution, which was inserted by the Constitution
(Seventy Third) Amendment Act, 1992. Part IX deals with
the panchayats. Article 24 3(k) reads as follows:
“243K. Elections to the Panchayats The
superintendence, direction and control of the
preparation of electoral rolls for, and the
conduct of, all elections to the Panchayats
shall be vested in a State Election Commission
consisting of a State Election Commissioner to
be appointed by the Governor .
(2) Subject to the provisions of any law made
by the Legislature of a State the conditions
of service and tenure of office of the State
Election Commissioner shall be such as the
Governor may by rule determine: Provided that
the State Election Commissioner shall not be
removed from his office except in like manner
and on the like ground as a Ju dge of a High
Court and the conditions of service of the
State Election Commissioner shall not be varied
to his disadvantage after his appointment .
(3) The Governor of a State shall, when so
requested by the State Election Commission,
make available to the State Election Commission
such staff as may be necessary for the
discharge of the functions conferred on the
State Election Commission by clause (1) .
(4) Subject to the provisions of this
Constitution, the Legislature of a State may,
by law, make provision with respect to all
matters relating to, or in connection with,
elections to the Panchayats .”
46. Article 243(k)(1) contemplates the appointment of
the State Election Commissioner to be made by the
Governor. Article 243(k)(2) contemplates that the
conditions of service and the tenure of the State
Election Commissioner i s to be such as maybe made by
the Governor by Rule and this is, however, made subject
to the provisions of any law made by the Legislature
of a State. It is, no doubt, again true that the
Parliament, while inserting Article 243 K, has partly
insulated the S tate Election Commissioner by providing
that he shall not be removed from Office except in like
manner and on like ground as a Judge of the High Court.
Similarly, in the proviso to Article 243 K(2), the
conditions of service of the State Election
Commission er cannot be varied to his disadvantage after
his appointment. It must be noticed that Parliament was
aware of the mandate of Article 324(2) when it inserted
Article 243. Parliament has carefully chosen not to
provide for the making of any law as regards t he
appointment of the State Election Commissioner. In
fact, this may leave no choice for a Court to step -in
and provide for the matter of appointment as regards
the State Election Commissioner. However, we need not
explore the matter further having regard to the stark
contrast between Article 243 K on the one hand and
Article 324(2) on the other. As far as the conditions
and tenure forming the subject matter of a law to be
made by the Legislature of the State, we would think
that in keeping with the p osition and the subject
matter of Article 243 K(2), it may not be apposite to
project Article 243 K(2) as a premise to reject the
request of the petitioners to place the interpretation
on Article 324(2), if it is otherwise justified.
47. Article 338(2) provides that subject to the
provisions of any law made by Parliament, the National
Commission for Scheduled Caste was to consist of a
Chairman , Vice-Chairman and three other Members and the
conditions of service and tenure of Office, were to be
such as the Presid ent, may by Rule, determine. An
identical provision is contained in Article 338A(2) as
regards National Commission for Scheduled Tribes. Not
unnaturally, in Article 338B(2), similar provisions are
contained in regard to National Commission for Backward
Classes. What is, however, pertinent to notice is
Article 338(3). It provides:
“The Chairperson, the Vice -Chairperson and
other Members of the Commission shall be
appointed by the President by warrant under his
hand and seal.”
Identical provisions have been made vide Article
338A and Article 338B.
48. We would notice that pertinently, Articles 338,
338A and 338B contemplates a law to regulate the
conditions of service and tenure of the Members of the
National Commission for Scheduled Castes, Scheduled
Tribes an d Backward Classes. Article 324(5)
contemplates a law being made to regulate the
conditions of service and the tenure of Office of the
Election Commissioners. Most pertinently, Parliament
has enacted the 1991 Act, as contemplated in Article
324(5). It is, when it comes to providing for the
appointment of the Election Commissioners, which was
clearly in the contemplation of the Founding Fathers
that no law has been made. The old regime continues.
In regard to the Members of the National Commissions,
covered by Articles 338, 338A and 338B, the
Constitution is clear that the appointment is to be
made by President.
49. Article 367(3) deals with the meaning of a foreign
State for the purpose of the Constitution and after
declaring it to be ‘any State’ other than India, makes
it, subject to a proviso, which declares that subject
to the provisions of any law made by Parliam ent, the
President may, by order, declare any State not to be a
foreign State for such purposes, as may be specified
in the Order. The matter is governed fully by the
Constitution (Declaration as to Foreign States) Order,
1950. Apart from the apparent abse nce of any imperative
need for a law, the matter is governed by an Order,
which is issued under the Constitution, which itself
would be of a statutory nature and also issued under
an enabling provision of the Constitution itself.
No further discussion is needed to conclude that
Article 324(2) is unique in its setting and purpose.
50. In the year 1951, Shri S ukumar Sen was appointed
as the first Chief Election Commissioner of India. He
was a Civil Servant and a former Chief Secretary of the
State of West -Bengal. His term was to last for eight
years and two hundred and seventy -three days. Shri
Kalyan Sundaram, t he second Chief Election
Commissioner, again a Civil Servant, the first Law
Secretary and who also chaired the Indian Law
Commission for the period from 1968 to 1971, was
appointed as Chief Election Commissioner on 20.12.1958
and his term termin ated on 30.09.1967. It is noteworthy
that his term also lasted eight years and two hundred
and eighty -four days.
51. The Government of India (Transaction of Business)
Rules, 1961 ha ve been referred to by the parties.
Insofar as it is relevant, we may notice th em. Under
Rule 8, the cases to be submitted to the Prime Minister
and President, are described as all cases of the nature
specified in the Third Schedule. In the Third Schedule,
Serial No.22 describes appointment, resignation and
removal of the Chief Elect ion Commissioner and other
Election Commissioners in Column 1 under the heading
‘nature of cases’. Article 324 is referred to, under
the Column ‘authority to whom the matter is submitted,
it is indicated ‘the Prime Minister and the President’.
52. Shri S.P. Se n Verma was the third Chief Election
Commissioner and he was appointed on 01.10.1967 and he
continued till 30.09.1972 (his term lasted for five
years). Shri Nagendra Singh, a Civil Servant and a
Member of the Constituent Assembly and who, later on,
became the Judge of the International Court of Justice,
had a short tenure as the fourth Chief Election
Commissioner from 01.10.1972 to 06.02.1973 (his term
lasted for one hundred and twenty -eight days). The
fifth Chief Election Commissioner was Shri T.
Swaminath an, who was also a Civil Servant, having
become a Cabinet Secretary as well and his stint as
Chief Election Commissioner was from 07.02.1973 to
17.06.1977 (his term lasted for four years and ten
days). Shri S.L. Shakdh er was appointed as the Sixth
Chief El ection Commissioner. He was also a Civil
Servant and Secretary General of the Lok Sabha. His
term commenced on 18.06.1977 and expired on 17.06.1982
(his term lasted for four years and three hundred and
sixty-four days). Shri R. K. Trivedi, the Seventh Chie f
Election Commissioner, was also a Civil Servant, and
he had a term of three years and one hundred and ninety -
six days. Shri R.V.S. Perishastri was the Eighth Chief
Election Commissioner. He was the Secretary to
Government and his term lasted from 01.01.1 986 till
25.11.1990. It was for the first time that Election
Commissioners, two in number, viz., Shri V. S. Seigell
and Shri S. S. Dhanoa came to be appointed as Election
Commissioners on 16.10.1989. However, as we shall see
in greater detail, the Notifica tion dated 16.10.1989
came to be rescinded on 01.01.1990. The same came to
be challenged by Shri S.S. Dhanao and it culminated in
the Judgment of this Court reported in S.S. Dhanoa v.
Union of India and Others12. A Committee known as the
Goswami Committee, made certain recommendations. On its
heels, Parliament passed an Act titled ‘The Chief
Election Commissioner and other Commissioners
(Conditions of Service) Act, 1991 (hereinafter referred
to as, ‘the 1991 Act’). It is noteworthy that this is
the law made by Parliament and relatable to Article
324(5), which contemplated a law made by Parliament
regulating conditions of service of the Chief Election
Commissioner and the Election Commissioners. Smt. V.S.
Ramadevi , who had the shortest tenure as the ninth
Chief Election Commissioner was drawn from the Civil
Services. Her term lasted for sixteen days. The Tenth
Chief Election Commissioner was none other than Shri
T. N. Sheshan, who was the Eighteenth Cabinet Secretary
of India and had a term of six years commencing from
12.12.1990 till 11.12.1996. The 1991 Act came to be
amended, initially, by an Ordinance, and later, by a
law made by Parliament, the Ordinance being published
on 01.10.1993. Shri M.S. Gill and Shri G.V.G .
Krishnamurthy were appointed as Election
Commissioners, w.e.f., 01.10.1993. The amendment and
the appointments came to be challenged by Shri T. N.
Seshan, the Chief Election Commissioner and others and
the challenge was repelled by a Constitution Bench o f
this Court and the Judgment is reported in T.N. Seshan,
(supra). We would observe that what was essentially
contemplated by founding Fathers was an Election
Commission, which was to consist of a permanent figure,
viz., the Chief Election Commissioner and such Election
Commissioners, as may be necessary. For nearly forty
years after the adoption of the Constitution of India,
there were only Chief Election Commissioners. After the
Judgment in T.N. Seshan (supra) , it will be noticed
that thereafter, the Election Commission of India
became a team consisting of the Chief Election
Commissioner and the two Election Commissioners. With
the term of Shri T. N. Seshan coming to an end
11.12.1996, the trend began of appointing the Election
Commissioners as Chief Election Commissioners . Thus,
Shri M.S. Gill became the Chief Election Commissioner.
Shri M.S. Gill was also a Civil Servant. He ser ved as
Chief Election Commissioner for a period of four years
and sixty -nine days, i.e., from 12.12.1996 till
13.06.2001. Shri G.V.G. Krishnamurthy continued till
30.09.1999 (nearly six years) as Election Commissioner.
Shri James Michael Lyngdoh became an Election
Commissioner in the year 1997 and was made the Chief
Election Commissioner on 14.06.2001, on the expiry of
the term of Shri M.S. Gill, and he continued till
07.02.2004 (the term lasted two years and two hundred
and sixty -nine days). Thereafter, we may notice, for
the period 2000 to 2022, the details of the Election
Commissioners and the Chief Election Commissioners and
the length of the tenure, which is as follows:
No. Name of
Commissioner Tenure as
EC Tenure as
CEC Length of
Tenure
Krishnamurthy,
EC Jan 2000 –
15.05.2005 5 yrs 3
mts 16
days
29.06.2006 5 yrs 17
days
3. N.Gopalaswamy,
20.04.2009 5 yrs 2
mts 13
days
4. Navin
B.Chawla, EC 16.05.200
07.2010 5 yrs 2
mts 14
days
Quraishi, EC 30.06.200
10.06.2012 5 yrs 11
mts 12
days
Sampath, EC 21.04.200
15.01.2015 5 yrs 8
mts 26
days
7. H.S. Brahma, EC 24.08.201
18.04.2015 4 yrs 7
mts 26
days
8. Nasim Zaidi, EC 07.01.2012 -
05.07.2017 4 yrs 10
mts 29
days
9. Achal Kumar
Joti, EC 07.05.201
22.01.2018 2 years 8
mts 16
days
10. O.P. Rawat, EC 14.08.201
01.12.2018 3 yrs 3
mts 18
days
11. Sunil Arora, EC 31.08.201
12.04.2021 3 yrs 7
mts 13
days
12. Ashok Lavasa,
because of
voluntary
resignatio
n) 2 yrs 7
mts 9
days
13. Sushil
Chandra, EC 15.02.201
14.05.2022 3 yers 3
mts
14. Rajiv Kumar, EC 01.09.202
14.05.2022 4 yrs 8
mts 14
days
(expected
15. Anup Chandra
Pandey, EC 08.06.202
4 2 yrs 8
mts 7
days
(expected
53. It was on 07.10.1989 that the President, in
exercise of his powers under Clause 2 of Article 324
of the Constitution, fixed the number of Election
Commissioners as two. This was to continue until
further orders. Later on, on 16.10.1989, two persons
of which, one was Shri S.S. Dhanoa, were appointed as
the Election Commissioners. It was for the first time
after Independence that Election Commissioners were
appointed , thereby making the Election Commission of
India a multi -Member Commission. In other words, t ill
16.10.1989, the Chief Election Commissioner
constituted the Election Commission of India. The
multi-Member Commission was, however, a short -lived
affair. In less than three months’ time, on 01.01.1990,
exercising power under Article 324(2), the President
notified, with immediate effect, the res cinding of the
Notification dated 07.10.1989, by which Notification,
the two posts of Election Commissioner had been
created. Another Notification res cinding the
Notificatio n dated 16.10.1989, by which the two
Election Commissioners were appointed, came to be
issued. The la tter Notifications came to be challenged
by Shri S.S. Dhanoa before this Court. A Bench of two
learned Judges dismissed the Writ Petition. This Court
took the view, inter alia, that the framers of the
Constitution did not want to give same status to the
Election Commissioners as was conferred on the Chief
Election Commissioner. In the course of this Judgment
in S.S. Dhanoa v. Union of India and others13, this
Court, inter alia, observed as follows:
“17. … There is no doubt that there is an
important distinction between the Council of
Ministers and the Election Commission in that
whereas the Prime Minister or the Chief
Minister is appointed by the President or the
Governor and the other Ministers are appointed
by the President or the Governor on the advice
of the Prime Minister or the Chief Minister,
the appointment of both the Chief Election
Commissioner and the other Election
Commissioners as the law stands today, is made
by the President under Artic le 324(2) of the
Constitution. It has, however, to be noted that
the provisions of the said article have left
the matter of appointment of the Chief Election
Commissioner and the other Election
Commissioners to be regulated by a law to be
made by the Parli ament, and the President
exercises the power of appointing them today
because of the absence of such law which has
yet to be made. …”
(Emphasis supplied)
54. We may notice paragraph 18, dealing with the manner
in which a multi -Member Commission must act.
Thereafter, the Court went on to find that there was
really no need to have appointed the Election
Commissioners and, still further made the following
observations:
“26. There is no doubt that two heads are
better than one, and particularly when an
instituti on like the Election Commission is
entrusted with vital functions, and is armed
with exclusive uncontrolled powers to execute
them, it is both necessary and desirable that
the powers are not exercised by one individual,
however, all -wise he may be. It ill conforms
the tenets of the democratic rule. It is true
that the independence of an institution depends
upon the persons who man it and not on their
number. A single individual may sometimes prove
capable of withstanding all the pulls and
pressures, which m any may not. However, when
vast powers are exercised by an institution
which is accountable to none, it is politic to
entrust its affairs to more hands than one. It
helps to assure judiciousness and want of
arbitrariness. The fact, however, remains that
where more individuals than one, man an
institution, their roles have to be clearly
defined, if the functioning of the institution
is not to come to a naught.”
(Emphasis supplied)
55. The Court found that it was not a case of removal
of the Election Commissioners within the meaning of the
second proviso to Article 324(5).
56. This led to certain changes in the 1991 Act. The
changes were introduced through an Ordinance published
in the Gaze tte of India on 01.10.1993. It, inter alia,
provided for a new Chapter III, which contemplates that
as far as possible, all business shall be transacted
unanimously (Section 10(2) of the 1991 Act). Section
10(3) provides that subject to Section 10(2), in c ase
of difference of opinion, the matter is to be decided
according to the opinion of the majority. This, it must
be noticed, was introduced in the context of the
observations in S.S. Dhanoa (supra). By the Ordinance
dated 01.10.1993, other far -reaching ch anges were
introduced, which, inter alia, provided for bringing
the Election Commissioners substantially on par with
the Chief Election Commissioner. The Chief Election
Commissioner, it must be noticed, under the 1991 Act,
was to be paid a salary equal to the Judge of the
Supreme Court. The Election Commissioner was to be paid
the salary equal to the Judge of the High Court. After
the amendment, they stand equated. The 1991 Act also
provided that the Chief Election Commissioner would be
entitled to continue in Office till the age of 65 years
whereas the Election Commissioner was to continue in
Office till he attains the age of 62 years. The age of
superannuation of the Chief Election Commissioner and
the Election Commissioner w as brought on par by the
Ordinanc e insofar as both were entitled to continue for
a period of six years subject to their liability to
vacate Office should they attain the age of 65 years
before the expiry of six years from the date on which
they assumed Offic e. However, under the first proviso
to Article 324(5), the Chief Election Commissioner can
be removed from his Office only in the manner and on
the like grounds as the Judge of the Supreme Court of
India. The first proviso also prohibits the conditions
of service of the Chief Election Commissioner being
varied to his disadvantage after his appointment. In
the matter of the removal of the Election Commissioner
or a Regional Commissioner the second proviso to
Article 324(5) provides the safeguard for the Elec tion
Commissioner or a Regional Commissioner that they
cannot be removed except on the recommendation of the
Chief Election Commissioner. On 01.10.1993, again, in
exercise of the powers under Article 324(2) , the
President fixed until further orders, the nu mber of
Election Commissioners other than the Chief Election
Commissioner at two. Two Election Commissioners also
came to be appointed w.e.f. 01.10.1993. The Ordinance,
which had been passed on 01.10.1993, became Act No. 4
of 1994 on 04.01.1994. This led t o certain Writ
Petitions being filed calling in question the Ordinance
including at the instance of Shri T.N. Seshan, who, it
must be noticed, was appointed earlier on 12.12.1990
as the Chief Election Commissioner. He challenged the
Ordinance on various gr ounds. Matters engaged the
attention of the Constitution Bench and its decision
is reported in T.N. Seshan, Chief Election Commissioner
of India v. Union of India and others14. The
Constitution Bench, we may notice, made the following
observations:
“10. The Preamble of our Constitution
proclaims that we are a Democratic Republic.
Democracy being the basic feature of our
constitutional set -up, there can be no two
opinions that free and fair elections to our
legislative bodies alone would guarantee the
growth of a healthy democracy in the country.
In order to ensure the purity of the election
process it was thought by our Constitution -
makers that the responsibility to hold free and
fair elections in the country should be
entrusted to an in dependent body which would
be insulated from political and/or executive
interference. It is inherent in a democratic
set-up that the agency which is entrusted the
task of holding elections to the legislatures
should be fully insulated so that it can
function as an independent agency free from
external pressures from the party in power or
executive of the day. This objective is
achieved by the setting up of an Election
Commission, a permanent body, under Article
324(1) of the Constitution. The
superintendenc e, direction and control of the
entire election process in the country has been
vested under the said clause in a commission
called the Election Commission. Clause (2) of
the said article then provides for the
constitution of the Election Commission by
providing that it shall consist of the CEC and
such number of ECs, if any, as the President
may from time to time fix. It is thus obvious
from the plain language of this clause that the
Election Commission is composed of the CEC and,
when they have been appoi nted, the ECs. The
office of the CEC is envisaged to be a
permanent fixture but that cannot be said of
the ECs as is made manifest from the use of
the words “if any”. Dr Ambedkar while
explaining the purport of this clause during
the debate in the Constitu ent Assembly said:
“Sub-clause (2) says that there shall be a
Chief Election Commissioner and such other
Election Commissioners as the President may,
from time to time appoint. There were two
alternatives before the Drafting Committee,
namely, either to h ave a permanent body
consisting of four or five members of the
Election Commission who would continue in
office throughout without any break, or to
permit the President to have an ad hoc body
appointed at the time when there is an election
on the anvil. Th e Committee has steered a
middle course. What the Drafting Committee
proposes by sub -clause (2) is to have
permanently in office one man called the Chief
Election Commissioner, so that the skeleton
machinery would always be available.”
It is crystal clear from the plain language of
the said clause (2) that our Constitution -
makers realised the need to set up an
independent body or commission which would be
permanently in session with at least one
officer, namely, the CEC, and left it to the
President to fur ther add to the Commission such
number of ECs as he may consider appropriate
from time to time. Clause (3) of the said
article makes it clear that when the Election
Commission is a multi -member body the CEC shall
act as its Chairman. What will be his role as
a Chairman has not been specifically spelt out
by the said article and we will deal with this
question hereafter. Clause (4) of the said
article further provides for the appointment
of RCs to assist the Election Commission in the
performance of its func tions set out in clause
(1). This, in brief, is the scheme of Article
324 insofar as the constitution of the Election
Commission is concerned.”
57. This Court went on to disagree with certain parts
of the Judgment in S.S. Dhano a (supra). The Court,
inter alia, held that the Election Commission of India
can be a single -Member Body or a multi -Member Body. It
was further held as follows:
“16. While it is true that under the scheme of
Article 324 the conditions of service and
tenure of office of all the functionaries of
the Election Commission have to be determined
by the President unless determined by law made
by Parliament, it is only in the case of the
CEC that the first proviso to clause (5) lays
down that they cannot be varied to the
disadvantage of the CEC after his appointment.
Such a protection is not extended to the ECs.
But it must be remembered that by virtue of
the Ordinance the CEC and the ECs are placed
on a par in the matter of salary, etc. Does
the absence of such provi sion for ECs make the
CEC superior to the ECs? The second ground
relates to removability. In the case of the CEC
he can be removed from office in like manner
and on the like ground as a Judge of the Supreme
Court whereas the ECs can be removed on the
recommendation of the CEC. That, however, is
not an indicia for conferring a higher status
on the CEC. To so hold is to overlook the scheme
of Article 324 of the Constitution. It must be
remembered that the CEC is intended to be a
permanent incumbent and, there fore, in order
to preserve and safeguard his independence, he
had to be treated differently. That is because
there cannot be an Election Commission without
a CEC. That is not the case with other ECs.
They are not intended to be permanent
incumbents. Clause (2) of Article 324 itself
suggests that the number of ECs can vary from
time to time. In the very nature of things,
therefore, they could not be conferred the type
of irremovability that is bestowed on the CEC.
If that were to be done, the entire scheme o f
Article 324 would have to undergo a change. In
the scheme of things, therefore, the power to
remove in certain cases had to be retained.
Having insulated the CEC from external
political or executive pressures, confidence
was reposed in this independent f unctionary to
safeguard the independence of his ECs and even
RCs by enjoining that they cannot be removed
except on the recommendation of the CEC. This
is evident from the following statement found
in the speech of Shri K.M. Munshi in the
Constituent Assem bly when he supported the
amended draft submitted by Dr Ambedkar:
“We cannot have an Election Commission sitting
all the time during those five years doing
nothing. The Chief Election Commissioner will
continue to be a whole -time officer performing
the duties of his office and looking after the
work from day to day but when major elections
take place in the country, either Provincial
or Central, the Commission must be enlarged to
cope with the work. More members therefore have
to be added to the Commission. They are no
doubt to be appointed by the President.
Therefore, to that extent their independence
is ensured. So there is no reason to believe
that these temporary Election Commissioners
will not have the necessary measure of
independence.”
Since the other ECs were not intended to be
permanent appointees they could not be granted
the irremovability protection of the CEC, a
permanent incumbent, and, therefore, they were
placed under the protective umbrella of an
independent CEC. This aspect of the matter
escaped the attention of the learned Judges who
decided Dhanoa case [(1991) 3 SCC 567] . We are
also of the view that the comparison with the
functioning of the executive under Articles 74
and 163 of the Constitution in paragraph 17 of
the judgment, with resp ect, cannot be said to
be apposite.”
(Emphasis supplied)
58. Dealing with the argument that as the Chief
Election Commissioner is designated as the Chairman,
it put him on a higher pedestal , this Court, inter
alia, held as follows:
“19. … The function of the Chairman would,
therefore, be to preside over meetings,
preserve order, conduct the business of the
day, ensure that precise decisions are taken
and correctly recorded and do all that is
necessary for smooth transaction of business.
The nature and duties of this office may vary
depending on the nature of business to be
transacted but by and large these would be the
functions of a Chairman. He must so conduct
himself at the meetings chaired by him that he
is able to win the confidence of his colleagues
on the Commission and carry them with him. This
a Chairman may find difficult to achieve if he
thinks that others who are members of the
Commission are his subordinates. The functions
of the Election Commission are essentially
administrative but there are certain
adjudicative and legislative functions as
well. The Election Commission has to lay down
certain policies, decide on certain
administrative matters of importance as
distinguished from routine matters of
administration and also adjudic ate certain
disputes, e.g., disputes relating to allotment
of symbols. Therefore, besides administrative
functions it may be called upon to perform
quasi-judicial duties and undertake
subordinate legislation -making functions as
well. See Mohinder Singh Gil l v. Chief
Election Commr [(1978) 1 SCC 405 : (1978) 2 SCR
272] . We need say no more on this aspect of
the matter.”
59. Still further, we may notice the following
discussion, which brings out the rationale for treating
the Chief Election Commissioner differently from the
Elections Commissioners:
“21. We have pointed out the distinguishing
features from Article 324 between the position
of the CEC and the ECs. It is essentially on
account of their tenure in the Election
Commission that certa in differences exist. We
have explained why in the case of ECs the
removability clause had to be different. The
variation in the salary, etc., cannot be a
determinative factor otherwise that would
oscillate having regard to the fact that the
executive or t he legislature has to fix the
conditions of service under clause (5) of
Article 324. The only distinguishing feature
that survives for consideration is that in the
case of the CEC his conditions of service
cannot be varied to his disadvantage after his
appointment whereas there is no such safeguard
in the case of ECs. That is presumably because
the posts are temporary in character. But even
if it is not so, that feature alone cannot lead
us to the conclusion that the final word in
all matters lies with the CEC. Such a view
would render the position of the ECs to that
of mere advisers which does not emerge from the
scheme of Article 324. ”
(Emphasis supplied)
60. It is clear that the founding fathers intended that
the elections in the country must be under the
superintendence, direction and control of an
independent Body. The Body is the Election Commission
of India. Under Article 324, the Chief Election
Commission er is an unalterable feature or figure. A
Commission can consist of only the Chief Election
Commissioner. A multi -Member Commission was also
contemplated by the founding fathers. However, t he post
of Election Commissioner was to be need based. For
nearly f our decades, there was no Election
Commissioner. As we have noticed, it is on 16.10.1989
that the first two Election Commissioners were
appointed. In regard to the appointment of the Chief
Election Commissioner and other Election
Commissioner s, the Constit ution does not provide for
any criteria. It does not fix any qualifications. It
does not prescribe any disqualifications in the matter
of appointment as either Chief Election Commissioner
or Election Commissioner.
61. The appointees have been bureaucrats draw n from
the Civil Services. Article 324(5) deals with the
conditions of service and tenure of Office of the
Election Commissioners and the Regional Commissioners.
Till Parliament made any law with regard to the same,
the founding fathers clothe d the President with power
to lay down the conditions of service and tenure of
Office by Rule. It is to lay down the conditions of
service and tenure of Office that Parliament has
enacted the 1991 Act. The first proviso to sub -Article
324(5) acts as a guarantee against the removal of the
Chief Election Commissioner except on like grounds and
a similar manner a Judge of the Supreme Court can be
removed. The conditions of service of the Chief
Election Commissioner shall not be varied to his
disadvantage after his appointm ent. This means that
Parliament cannot , nor can the Government by Rule,
either remove the Chief Election Commissioner, except
by impeaching him in the manner provided for the
removal of a Judge of Supreme Court nor can Parliament
make law nor Government a Rule to vary the conditions
of service of the Chief Election Commissioner to his
disadvantage, after he is appointed. The first proviso
to Article 324(5) operates as a singular insulation to
protect the Chief Election Commissioner from either
being arbitrarily removed or his conditions of servi ce
being varied to his disadvantage. But as contemplated
by the founding fathers, protection against arbitrary
removal or protection against varying of conditions of
the appointment were not the sole safeguards . Far more
vital was the appointment of the ‘r ight man’ and the
need to take it out of the exclusive hands of the
executive.
62. In the year 1990, the Government of India
constituted a Committee under the Chairmanship of the
then Law Minister, Shri Dinesh Goswami and it is
hereinafter referred to as the ‘Goswami Committee’. It
made several recommendations relating to electoral
reforms. The Committee, inter alia , recommended as
follows:
Electoral Machinery
1. Set up of multi -member Commission
1. The Election Commission should be a multi -
member body with three members.
2. The Chief Election Commissioner should be
appointed by the President in consultation with
the Chief Justice of India and the Leader of
the Opposition (and in case no Leader of
Opposition is avail able, the consultation
should be with the Leader to the largest
opposition group in the Lok Sabha).
3. The consultation process should have a
statutory backing.
4. The appointment of other two Election
Commissioners should be made in consultation
with Chief Just ice of India, the Leader of the
Opposition (in case no Leader of Opposition is
available, the consultation should be with the
Leader to the largest opposition group in the
Lok Sabha) and the Chief Election Commissioner.
5. The appointment of Regional Commissi oners
for different zones is not favoured. Such
appointments should be made only as and when
necessary and not on a permanent footing.
2. Steps for securing independence of the
Commission
6. The protection of salary and other allied
matters relating to th e Chief Election
Commissioner and the Election Commissioners
should be provided for in the Constitution
itself on the analogy of the provisions in
respect of the Chief Justice and Judges of the
Supreme Court. Pending such measures being
taken, a parliament ary law should be enacted.
7. The expenditure of the Commission should
continue to be 'voted' as of now.
8. The Chief Election Commissioner and the
Election Commissioners should be made
ineligible not only for any appointment under
the Government but also to any office including
the office of Governor appointment to which is
made by the President.
9. The tenure of the Chief Election
Commissioner and other Election Commissioners
should be for a term of five years or sixty -
five years of age, whichever is later and the y
should in no case continue in office beyond
sixty-five years and for more than ten years
in all.”
63. In the year 1991, Parliament enacted the Election
Commission (Conditions of Service of Election
Commissioners and Transaction of Business) Act, 1991.
Section 3 provides, as it stands, that there shall be
paid to the Chief Election Commissioner and other
Election Commissioners a salary, which is equal to the
salary of the Judge of the Supreme Court. Section 4
deals with the term of Office and reads as fo llows:
“4. Term of office. —The Chief Election
Commissioner or an Election Commissioner shall
hold office for a term of six years from the
date on which he assumes his office:
Provided that where the Chief Election
Commissioner or an Election Commissioner
attains the age of sixty -five years before the
expiry of the said term of six years, he shall
vacate his office on the date on which he
attains the said age:
Provided further that the Chief Election
Commissioner or an Election Commissioner ma y,
at any time, by writing under his hand
addressed to the President, resign his office.
Explanation. —For the purpose of this section,
the term of six years in respect of the
Chief Election Commissioner or an Election
Commissioner holding office imm ediately before
the commencement of this Act, shall be
computed from the date on which he had
assumed office. ”
64. Section 5 deals with the leave available to both
the Chief Election Commissioner or an Election
Commissioner. The power to grant relief or refuse leave
to them vests with the President. Section 6 deals with
their right to pension. Section 7 deals with the right
to subscribe to the general provident fund. Section 8
provides for other conditions of service:
“8. Other conditions of service. —Save as
otherwise provided in this Act, the conditions
of service relating to travelling allowance,
provision of rent -free residence and exemption
from payment of income -tax on the value of such
rent-free residence, conveyance facilities,
sumptuary allowa nce, medical facilities and
such other conditions of service as are, for
the time being, applicable to a Judge of the
Supreme Court under Chapter IV of the Supreme
Court Judges (Conditions of Service) Act, 1958
(41 of 1958) and the rules made thereunder,
shall, so far as may be, apply to the Chief
Election Commissioner and other Election
Commissioners. ”
65. Under Section 9, the business of the Election
Commissioner is to be transacted in accordance with the
1991 Act. Section 10 provides for disposal of business
by Election Commission, it reads as follows:
“10. Disposal of business by Election
Commission. — (1) The Election Commission may,
by unanimous decision, regulate the procedure
for transaction of its business as also
allocation of its business amongst the Chief
Election Commissioner and other Election
Commissioners.
(2) Save as provided in sub -section (1), all
business of the Election Commission shall, as
far as possible, be transacted unanimously.
(3) Subject to the provisions of sub -section
(2), if the Chief Election Commissioner and
other Election Commissioners differ in opinion
on any matter, such matter shall be decided
according to the opinion of the majority.”
66. In the year 1993, the Government of India
constituted, what is know n as the ‘Vohra Committee’.
It made certain recommendations in regard to the CBI
and the IB. Five years thereafter, in 1998, Government
of India appointed a Committee under the Chairmanship
of Shri Indrajit Gupta Committee on State funding of
elections. T he Committee submitted its Report in
December, 1998. The conclusion and summary of the
recommendations are found in Chapter 9 and they include
various recommendations relating to funding of
political parties.
67. In the year 2002, a National Commission for
reviewing the work of the Constitution, under the
Chairmanship of the Former Chief Justice of India, M.N.
Venkatachaliah, made 58 recommendations involving
amendments to the Constitution, 86 recommendations
relating to legislative measures and the rest involv ed
Executive action. In relation to electoral processes
and political parties, various recommendations were
made by the Commission. One of the recommendations,
which is of relevance to the cases before us is as
follows:
“The Chief Election Commissioner and the other
Election Commissioners should be appointed on
the recommendation of a Body consisting of the
Prime Minister, Leader of the Opposition in the
Lok Sabha, the Leader of the Opposition in the
Rajya Sabha, the Speaker of the Lok Sabha and
the Deputy Chairman of the Rajya Sabha. It was
further recommended that similar procedure
should be adopted in the case of appointment
of the State Election Commissioners.”
68. In the year 2004, the Election Commission of India,
on 02.08.2004 made certain proposal on electoral
reforms to the Government of India. The proposals
included affidavits to be filed by candidates on
criminal antecedents, their assets, etc. The aspect
about criminalisation of politics is noted as an issue
being raised by the Commission from 1998 onwards. The
Commission was of the opinion that keeping a person
accused of a serious criminal charge and where the
Court had framed charges, out of the electoral a rena,
would be a reasonable restriction in greater public
interest. Among the various reforms it proposed, we
notice the following:
Election Commission of India is an independent
constitutional body created by the
Constitution of India vide Article 324. Clause
(I) of Article 324 has vested the
superintendence, direction and control of the
preparation of electoral rolls for, and the
conduct of, all elections to Parliament and to
the Legislature of every State and of elections
to the offices of President and Vice -President
of India in the Election Commission.
Under Clause (2) of Article 324, the Election
Commission shall consist of the Chief Election
Commissioner and such number of other Election
Commissioners, if any, as the President may
from to time fix and the appointment of the
Chief Election Commissioner and Election
Commissioners shall , subject to the provisions
of any law made in that behalf by Parliament,
be made by the President.
The President has, by Order dated 1.10.1993
under Clause (2) of Article 324, fixed the
number of Election Commissioners as two until
further orders.
Although the Constitution permits the
President to fix the number of Election
Commissioners at any number without any limit,
it is felt that in the interest of smooth and
effective functioning of the Election
Commission, the number of Election
Commissioners sho uld not be unduly large and
should remain as two as presently fixed, in
addition to the Chief Election Commissioner.
The three -member body is very effective in
dealing with the complex situations that arise
in the course of superintending, directing and
controlling the electoral process, and allows
for quick responses to developments in the
field that arise from time to time and require
immediate solution. Increasing the size of this
body beyond the existing three -member body
would, in the considered opinio n of the
Commission, hamper the expeditious manner in
which it has necessarily to act for conducting
the elections peacefully and in a free and fair
manner.
In order to ensure the independence of the
Election Commission and to keep it insulated
from exter nal pulls and pressures, Clause (5)
of Article 324 of the Constitution, inter alia,
provides that the Chief Election Commissioner
shall not be removed from his office except in
like manner and on like grounds as a Judge of
the Supreme Court. However, that Clause (5) of
Article 324 does not provide similar protection
to the Election Commissioners and it merely
says that they cannot be removed from office
except on the recommendation of the Chief
Election Commissioner. The provision, in the
opinion of the Ele ction Commission, is
inadequate and requires an amendment to provide
the very same protection and safeguard in the
matter of removability of Election
Commissioners from office as is available to
the Chief Election Commissioner.
The independence of the El ection Commission
upon which the Constitution makers laid so much
stress in the Constitution would be further
strengthened if the Secretariat of the Election
Commission consisting of officers and staff at
various levels is also insulated from the
interfere nce of the Executive in the matter of
their appointments, promotions, etc., and all
such functions are exclusively vested in the
Election Commission on the lines of the
Secretariats of the Lok Sabha, and Rajya Sabha,
Registries of the Supreme Court and Hig h
Courts, etc. Independent Secretariat is vital
to the functioning of the Election Commission
as an independent constitutional authority. In
fact, the provision of independent Secretariat
to the Election Commission has already been
accepted in principle by the Goswami Committee
on Electoral Reforms and the Government had,
in the Constitution (Seventieth Amendment)
Bill, 1990, made a provision also to that
effect. That Bill was, however, withdrawn in
1993 as the Government proposed to bring in a
more comprehensive Bill.”
(Emphasis supplied)
69. As regards expenses of Election Commission, we find
the following complaint and solution :
The Commission had sent a proposal that the
expenditure of the Commission should be charged
on the Consolidated Fund of India. The
Government had moved in the 10th Lok Sabha “The
Election Commission (Charging of Expenses on
the Consolidated Fund of India) Bill, 1994 ”
with the objective of providing for the
salaries, allowances and pension payable to the
Chief Election Commissioner and other Election
Commissioners and the administrative expenses
including salaries, allowances and pension of
the staff of the Election Commission to be
expenditure charged upon the Consolidated Fund
of India. Similar provisions already exist in
respect of the Supreme Court, Comptroller &
Auditor General and the Union Public Service
Commission, which are, like the Election
Commission, independent constitutional bodies.
To secure its independent functioning the
Commission is of the opinion that the Bill,
which lapsed with the dissolution of the 10th
Lok Sabha in 1996, needs reconsideration.”
70. The next milestone to be noticed is the Second
Administrative Reforms Commission Report made in
January, 2007. The Commission consisted of Shri
Veerappa Moily, the then Law Minister, as its
Chairperson and five other Members. We find the
following in the summary of its recommendations, inter
alia. It recommended that the Collegium headed by the
Prime Minister, with the Speaker of the Lok Sabha, the
leader of the Opposition in the Lok Sabha, the Law
Minister and the Deputy Chairman of the Rajya Sabha,
as Members, should make recommendations for
consideration of the President for appointment of the
Chief Election Commissioner and the Election
Commissioners. In the year 2010, the Ministry of Law
and Justice, Government of India, ha d constituted a
Committee on Electoral Reforms. The Report, it made,
in the year 2010 indicates the background which led to
the constitution of the Committee. Reference is made
to various earlier Reports as also the efforts being
made by the Election Commission. It made various
recommendations relating to electoral reforms. Under
the head ‘measures for Election Commission’, an update
on the Election Commission’s recommendations, includes
the following:
No. Proposal of the
Election Commission Status/Remarks.
12 Composition of
Election Commission
and Constitutional
Protection of all
Members of the
Commission and
Independent
Secretariat for the
Commission. It was decided to
include it as a
proposal for
regional and
national
consultation.
13. Expenses of Election
Commission to be
Treated as Charged. The proposal to
make the expenses
of the Election
Commission of India
‘charged’ was
considered by the
Dinesh Goswami
Committee but was
not favoured. In
1994, the
Government,
however, introduced
the Election
Commission
(Charging of
Expenses on the
Consolidated Fund
of India) Bill,
1994 in Lok Sabha
on 16.12.94 which
lapsed on the
dissolution of the
Tenth Lok Sabha.
The Department -
Related
Parliamentary
Standing Committee
on Home Affairs in
its 24th Report on
the said Bill
presented to Raja
Sabha on 28.11.1995
and was of the
considered view
that there is no
need of passing the
proposed Bill and
recommends that the
Bill be dropped.
The Election
Commission of India
again made a
similar proposal in
1997 which was
placed before
political parties
in the a ll party
meeting held on
22.5.1998 but no
view was taken.
Again, the Election
Commission of India
made the same
proposal in May,
2003 and on the
direction of the
then Hon’ble Prime
Minister the same
was placed before
the political
parties in the all
party meeting held
on 29.1.2003. The
debate on the
proposal remained
inconclusive.
71. In regard to appointment of Chief Election
Commissioner and other Election Commissioners, we
notice the following remarks:
(4) Appointment of
Chief Election
Commissioner (CEC)
and other Election
Commissioners (EC)
and consequential
matters: - One of the Chief
Election
Commissioners has
requested the
Government to have
a collegium
consisting of the
Prime Minister and
Leader of
Opposition etc. who
is empowered to
make
recommendations for
appointments of the
Further, it has
also been suggested
that there should
be complete ban for
ten years after
retirement from the
post of CEC to any
political party.
(Emphasis supplied)”
72. In the year 2015, Law Commission of India, in its
Two Hundred and Fifty Fifth Report dated 12.03.2015,
dealing with the electoral reforms in India, made
various recommendations in regard to strengthening the
Office of the Election Comm ission of India. After
referring to Article 324(2), the fact of the
appointments being discussed in the Constituent
Assembly, Article 324(2) leaving it to the Parliament
to legislate, the recommendation of the Goswami
Committee in 1990, we find the followi ng discussion:
“6.10.4 This was followed by the introduction
of the Constitution (Seventieth Amendment)
Bill 1990, which was introduced in the Rajya
Sabha on 30th May 1990 providing that the CEC
would be appointed by the President after
consultation with t he Chairman of the Rajya
Sabha, the Speaker of the Lok Sabha, and the
Leader of the Opposition (or the leader of the
largest party) in the Lok Sabha. The CEC was
further made a part of the consultative process
in the appointment of the Election
Commissione rs. However, on 13th June 1994, the
Government moved a motion to withdraw the Bill,
which was finally withdrawn with the leave of
the Rajya Sabha on the same day.
6.10.5 Consequently, in the absence of any
Parliamentary law governing the appointment
issue, the Election Commissioners are
appointed by the government of the day, without
pursuing any consultation process. This
practice has been described as requiring the
Law Ministry to get the file approved by the
Prime Minister, who then rec ommends a name to
the President. Thus, there is no concept of
collegium and no involvement of the opposition.
6.10.6 The Commissioners are appointed for a
six year period, or up to the age of 65 years,
whichever is earlier. Further, there are no
prescribe d qualifications for their
appointment, although convention dictates that
only senior (serving or retired) civil
servants, of the rank of the Cabinet Secretary
or Secretary to the Government of India or an
equivalent rank, will be appointed. The Supreme
Court in Bhagwati Prashad Dixit Ghorewala v
Rajiv Gandhi rejected the contention that the
CEC should possess qualifications similar to
that of a Supreme Court judge, despite being
placed on par with them in terms of the removal
process.”
73. We find that under the caption ‘Comparative
Practices’, the Report contains the following
discussion:
“(ii) Comparative practices
6.11.1 An examination of comparative practices
is instructive. In South Africa, the
Independent Electoral Commission comprises of
five members, including one judge. They are
appointed by the President on the
recommendations of the National Assembly,
following nominations by a National Assembly
inter-party committee, which receives a list
of at least eight candidates. This list of (at
least) eight nominees is recommended by the
Selection Committee, which has four members
being, the President of the Constitutional
Court; a representative of the Human Rights
Commission and the Commission on Gender
Equality each; and the Public Prosecutor.
6.11.2 In Ghana too, the seven member Election
Commission is appointed by the President on the
advice of the Council of State, with the
Chairman and two Deputy Chairmen having
permanent tenure.
6.11.3 In Canada, the Chief Electoral Officer
of “Elections Canada” is appointed by a House
of Commons resolution for a non -renewable ten -
year term, and to protect their independence
from the government, he/she reports directly
to Parliament. In the United States, the six
Federal Election Commissioners a re appointed
by the President with the advise and consent
of the Senate. The Commissioners can be members
of a political party, although not more than
three Commissioners can be members of the same
party.
6.11.4 In all these cases thus, it is clear
that t he appointment of the Election
Commissioners or the electoral officers is a
consultative process involving the Executive/
Legislature/other independent bodies.”
74. Thereafter, under the caption ‘the
Recommendation’, we find the following:
“(iii) Recommenda tions
6.12.1 Given the importance of maintaining the
neutrality of the ECI and to shield the CEC
and Election Commissioners from executive
interference, it is imperative that the
appointment of Election Commissioners becomes
a consultative process.
6.12.2 To this end, the Commission adapts the
Goswami Committee’s proposal with certain
modifications. First, the appointment of all
the Election Commissioners (including the CEC)
should be made by the President in consultation
with a three -member collegium or selection
committee, consisting of the Prime Minister,
the Leader of the Opposition of the Lok Sabha
(or the leader of the largest opposition party
in the Lok Sabha in terms of numerical
strength) and the Chief Justice of India. The
Commissi on considers the inclusion of the Prime
Minister is important as a representative of
the current government.
6.12.3 Second, the elevation of an Election
Commissioner should be on the basis of
seniority, unless the three member
collegium/committee, for reasons to be
recorded in writing, finds such Commissioner
unfit.
6.12.4 Such amendments are in consonance with
the appointment process in Lokpal and
Lokayuktas Act, 2013, the Right to Information
Act, 2005 and the Central Vigilance Commission
Act, 2003.
6.12.5 Pursuant to Article 324(2), an amendment
can be brought to the existing Election
Commission (Conditions o f Service of Election
Commissioners and Transaction of Business)
Act, 1991 to amend the title and insert a new
Chapter 1A on the appointment of Election
Commissioners and the CEC as follows:
• Act and Short Title: The Act should be
renamed the “Election Com mission (Appointment
and Conditions of Service of Election
Commissioners and Transaction of Business)
Act, 1991”.
• The short title should state, “An Act to
determine the appointment and conditions of
service of the Chief Election Commissioner and
other Elec tion Commissioners and to provide for
the procedure for transaction of business by
the Election Commission and for matters
connected therewith or incidental thereto.”
• Chapter I -A – Appointment of Chief Election
Commissioner and Election Commissioners.
2A. Appointment of Chief Election Commissioner
and Election Commissioners – (1) The Election
Commissioners, including the Chief Election
Commissioners, shall be appointed by the
President by warrant under his hand and seal
after obtaining the recommendation s of a
Committee consisting of:
(a) the Prime Minister of India – Chairperson
(b) the Leader of the Opposition in the House
of the People – Member
c) the Chief Justice of India – Member
Provided that after the Chief Election
Commissioner ceases to hol d office, the senior -
most Election Commissioner shall be appointed
as the Chief Election Commissioner, unless the
Committee mentioned in sub -section (1) above,
for reasons to be recorded in writing, finds
such Election Commissioner to be unfit.
Explanatio n: For the purposes of this sub -
section, “the Leader of the Opposition in the
House of the People” shall, when no such Leader
has been so recognised, include the Leader of
the single largest group in opposition of the
Government in the House of the People. ”
75. In regard to the aspect about the permanent and
independent Secretariat of the Election Commission of
India, it was noticed that to give effect to the Goswami
Committee recommendation, the Constitution Seventieth
Amendment Bill, 1990 was introduced on 30.05.1990 and
that it was subsequently withdrawn i n 1993 in view of
the changed composition of the Election Commission of
India, on it becoming a multi -Member Body pursuant to
the 1991 Act and on the ground that the Bill needed
some amendment s. The Bill, however, the Law Commission
noticed, was never intr oduced. Thereafter, the Law
Commission referred to the recommendations of the
Election Commission itself for seeking appointment of
an independent Secretariat. The Law Commission,
accordingly, recommended insertion of Article 324(2A),
inter alia , providing for a separate , independent and
permanent secretarial staff for the Election
Commission. In regard to the need for equating the two
Election Commissioners with the Chief Election
Commissioner and noting that Election Commissioners
were clearly su perior to the Regional Commissioner s,
the Law Commission recommended changes in Article
324(5) as well. The amended Article 324, as proposed
by the Law Commission of India, in its Report, reads
as follows:
“324. Superintendence, direction and control
of elections to be vested in an Election
Commission. - (1) The superintendence,
direction and control of the preparation of the
electoral rolls for, and the conduct of, all
elections to Parliament and to the Legislature
of every State and of elections to the of fices
of President and Vice -President held under this
Constitution shall be vested in a Commission
(referred to in this Constitution as the
Election Commission)
(2) The Election Commission shall consist of
the Chief Election Commissioner and such number
of other Election Commissioners, if any, as the
President may from time to time fix and the
appointment of the Chief Election Commissioner
and other Election Commissioners shall,
subject to the provisions of any law made in
that behalf by Parliament, be ma de by the
President.
(2A) (1): The Election Commission shall have a
separate independent and permanent secretarial
staff.
(2) The Election Commission may, by rules
prescribed by it, regulate the recruitment, and
the conditions of service of persons appo inted,
to its permanent secretarial staff.
(3) When any other Election Commissioner is so
appointed the Chief Election Commissioner
shall act as the Chairman of the Election
Commission.
(4) Before each general election to the House
of the People and to t he Legislative Assembly
of each State, and before the first general
election and thereafter before each biennial
election to the Legislative Council of each
State having such Council, the President may
also appoint after consultation with the
Election Comm ission such Regional
Commissioners as he may consider necessary to
assist the Election Commission in the
performance of the functions conferred on the
Commission by clause (1).
(5): Subject to the provisions of any law made
by Parliament, the conditions o f service and
tenure of office of the Regional Commissioners
shall be such as the President may by rule
determine;
Provided that the Chief Election Commissioner
and any other Election Commissioner shall not
be removed from his office except in like
manner and on the like grounds as a Judge of
the Supreme Court and the conditions of service
of the Chief Election Commissioner and any
other Election Commissioner shall not be varied
to his disadvantage after his appointment:
Provided further that a Regional C ommissioner
shall not be removed from office except on the
recommendation of the Chief Election
Commissioner.
(6) The President, or the Governor of a State,
shall, when so requested by the Election
Commission, make available to the Election
Commission or to a Regional Commissioner such
staff as may be necessary for the discharge of
the functions conferred on the Election
Commission by clause (1).”
76. There is a newspaper Report of The Hindu dated
04.06.2012, which appears to project the demand of Shri
L.K. Advani, that a Collegium be put in place for
appointment to the Constitutional Body and taking the
stand that the present system of appointment did not
inspire confidence among the people. There is also a
reference to the Report of the Citizens Commis sion of
Elections. It appears to be prepared by the former
Judge of this Court Shri Madan B. Lokur and Shri Wajahat
Habibullah , a former Chief Information Commissioner .
In the said Report, we find the Article ‘Are Elections
in India Free and Fair’ by Shri M.G. Devasahayan. Under
the head ‘ECI – functioning an autonomy’, we find the
following criticism:
▪ ECI has plenipotentiary powers drawn from
Article 324 of the Constitution of India to
conduct free and fair election.
▪ In addition, Supreme Court has r uled: “when
Parliament or any State Legislature made valid
law relating to, or in connection to elections,
the Commission, shall act in conformity with,
not in violation of such provisions, but where
such law is silent, Article 324 is a reservoir
of power to act for the avowed purpose of
pushing forward a free and fair election with
expedition…”.
▪ But ECI is just not using such powers,
because ECs are the appointees of the
Government of the day and not through an
independent process of collegium. The case o f
one dissenting EC, who was side -lined and then
eased out has caused irretrievable damage to
ECI’s independence and integrity !
▪ This compromises the autonomy of the ECI
and creates doubts about the neutrality of the
CEC and the ECs, and consequently, the
neutrality of the Commission itself. This poses
serious danger to the fairness and integrity
of not only the elections, but democracy
itself…”
(Emphasis s upplied)
77. In the year 2016, we find the following proposed
electoral reforms essentially related to Article
324(5), being proposals made by the Election Commission
itself.
“Clause (5) of Article 324 of the Constitution
provides that the Chief Election Commissioner
shall not be removed from his office except in
the same manner and on the same grounds as a
Judge of the Supreme Court. The Chief Election
Commissioner and the two Election
Commissioners enjoy the same decision making
powers which is suggestive of the fact that
their powers are at par with each other.
However, Clause (5) of Article 324 of the
Constitution does not provide similar
protection to the Election Commissioners and
it merely says that they cannot be removed from
office except on the recommendation of the
Chief Election Commissioner.
The reason for giving protecti on to a Chief
Election Commissioner as enjoyed by a Supreme
Court Judge in matters of removability from
office was in order to ensure the independence
of Commission from external pulls and pressure.
However, the rationale behind not affording
similar prote ction to other Election
Commissioners is not explicable. The element
of 'independence' sought to be achieved under
the Constitution is not exclusively for an
individual alone but for the whole institution.
Thus, the independence of the Commission can
only be strengthened if the Election
Commissioners are also provided with the same
protection as that of the Chief Election
Commissioner.
Proposed amendment
The present constitutional guarantee is
inadequate and requires an amendment to provide
the same protection and safeguard in the matter
of removability of Election Commissioners as
is available to the Chief Election
Commissioner. ”
78. In I. C. Golak Nath and Others v. State of Punjab
and Another ,15 Justice Subba Rao held speaking for this
Court:
“It (the Constitution) demarcates their
jurisdiction minutely and expects them to
exercise their respective powers without
overstepping their limits. They should
function within the spheres allotted to them .
No authority created under the Constitution is
supreme; the Constitution is supreme and all
the authorities function under the supreme law
of the land.”
79. What is this jurisdiction which is demarcated?
Justice R.S.Pathak speaking for the Bench in Bandhua
Mukti Morcha v. Union of India and Others16 held:
“It is a common place that while the
Legislature enacts the law the Executive
implements it and the Court interpret it and,
in doing so, adjudicates on the validity of
executive action and, under our Constitution,
even judges the validity of the legislation
itself.”
The question would arise as to whether the
powers/functions are cast in stone or whether the
aforesaid powers/functions can legitimately be
exercised/discharged by the other organs. We may in
this regard again advert to what this Court held in the
aforesai d case (supra):
“And yet it is well recognized that in a
certain sphere the Legislature is possessed of
judicial power, the executive possesses a
measure of both legislative and judicial
functions, and the court, in its duty of
interpreting the law, accomplishes in its
perfect action in a marginal degree of
legislative exercise. Nonetheless a fine and
delicate balance is envisaged under our
Constitution between these primary
institutions of the State.”
80. The High Court s and this Court make Rules under
the power granted to them. No doubt, they will be acting
as delegates of the Legislature but the exercise of
power in such cases would be legislative in nature.
When an Ordinance is made under Article 123 by the
Executive, that is, the Union of India, it is a case
of the Executive exercising legislative power. When
Parliament adjudges a man guilty of contempt of itself
and punishes him, the proceedings are informed by the
attribute of judicial power.
81. It cannot be disputed that there is no strict
demarcatio n or separation of power s in India unlike the
position obtaining in the United States of America and
Australia. (See In Re. Delhi Laws Act, 191217). The
doctrine of separation of powers, no doubt, has been
eloquently expounded by Montesquieu in his work “The
Spirit of Laws” and the basis on which it rests is the
imperative need to avoid concentration of power in one
or two organs. Undoubtedly, an observance of doctrine
of separation of powers has been traced to the
principle of equality ( See Madras B ar Association v.
Union of India18. Justice Y.V. Chandrachud, as His
Lordship then was, speaking in Indira Nehru Gandhi v.
Raj Narain & Ors .19 held inter alia as follows:
“But the principle of separation of powers is
not a magic formula for keeping the three
organs of the State within the strict confines
of their functions.”
82. Separation of power s as understood as prevailing
in India constitutes a part of the basic structure of
18 2021 SCC OnLine SC 463
19 (1975) Suppl. SCC 1
the Constitution of India (See His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kerala and Another20)
and I.R. Coelho (Dead) by LRs v. State of T.N .21
83. In Indian Aluminium Co. and others v. State of
Kerala and others22, this Court, while dealing with the
alleged encroachment by the Legislature of the
boundaries set by the Doctrine of Separation of Powers
laid down, inter alia , as follows:
“(1) The adjudication of the rights of the
parties is the essential judicial func tion.
Legislature has to lay down the norms of
conduct or rules which will govern the parties
and the transactions and require the court to
give effect to them;
(2) The Constitution delineated delicate
balance in the exercise of the sovereign power
by the legislature, executive and judiciary;
(3) In a democracy governed by the rule of law,
the legislature exercises the power under
Articles 245 and 246 and other companion
articles read with the entries in the
respective lists in the Seventh Schedule to
make the law which includes power to amend the
law.
(4) Courts in their concern and endeavour to
preserve judicial power equally must be guarded
to maintain the delicate balance devised by the
Constitution between the three sovereign
functiona ries. In order that the rule of law
permeates to fulfil constitutional objectives
of establishing an egalitarian social order,
the respective sovereign functionaries need
free play in their joints so that the march of
social progress and order remains unim peded.
The smooth balance built with delicacy must
always be maintained;”
84. Apart from the power to make subordinate
legislation as a delegate of the Legislature, do the
superior courts make law or is it entirely tabooed? In
other words, when the court decides a lis, is the
function of the court merely to apply law to the facts
as found or do courts also make law? The theory that
the courts cannot or do not make laws is a myth which
has been exploded a long while ago. We may only in
this regard refer to what Justice S.B. Sinha opined on
behalf of this Court in the decision repor ted in State
of U.P. v. Jeet S. Bisht23:
“77. Separation of powers is a favourite topic
for some of us. Each organ of the State in
terms of the constitutional scheme performs one
or the other functions which have been assigned
to the other organ. Although drafting of
legislation and its implementa tion by and large
are functions of the legislature and the
executive respectively, it is too late in the
day to say that the constitutional court's role
in that behalf is non -existent. The judge -made
law is now well recognised throughout the
world. If one is to put the doctrine of
separation of power to such a rigidity, it
would not have been possible for any superior
court of any country, whether developed or
developing, to create new rights through
interpretative process.
78. Separation of powers in one sense is a
limit on active jurisdiction of each organ.
But it has another deeper and more relevant
purpose: to act as check and balance over the
activities of other organs. Thereby the active
jurisdiction of the organ is not challenged;
nevertheless there are methods of prodding to
communicate the institution of its excesses and
shortfall in duty. Constitutional mandate sets
the dynamics of this communication between the
organs of polity. Therefore, it is suggested
to not understand separation of powers as
operating in vacuum. Separation of powers
doctrine has been reinvented in modern times.
83. If we notice the evolution of separation
of powers doctrine, traditionally the checks
and balances dimension was only associated
with governmental excesses and violations. But
in today's world of positive rights and
justifiable social and economic entitlements ,
hybrid administrative bodies, private
functionaries discharging public functions, we
have to perform the oversight function with
more urgency and enlarge the field of checks
and balances to include governmental inaction.
Otherwise we envisage the country getting
transformed into a state of repose . Social
engineering as well as institutional
engineering therefore forms part of this
obligation. ”
(Emphasis supplied)
85. Separation of powers is part of the basic structure
of the Constitution of India. Equally, judicial review
has been recognised as forming a part of the basic
structure. Judicial review of legislation is expressly
provided in Article 13 of the Constitution. A court
when it declares a law made by the legislature as
unconstitutional, if it be that, it is within its
bounds, cannot be accused of transgressing the
principle of separation of powers. Declaring even a law
made by the Parliament as unconstitutional f orms a part
of its powers. In view of the enunciation of the
doctrine of basic structure in India unlike perhaps in
most countries , even an amendment to the Constitution
can be declared unconstitutional by the court. Such
exercise cannot expose the court t o the charge that it
is not observing the limits set by the Constitution.
86. While it may be true that the Constitution is
supreme and all disputes must finally attain repose
under the aegis of the Constitution , in one sense the
final arbiter of what is the law must be the court.
While it may be true that by removing the text forming
the premise for a judicial verdict, the lawgiver may
revisit the judgment, it is not open to the legislature
to don the robes of a Judge and arrogate to itself the
judicial function. The theory of separation of power s
in an ultimate analysis is meant to prevent tyranny of
power flowing from the assumption of excess power in
one source. Its value lies in a delicate but skilful
and at the same time legitimate balance being struck
by the organs of the State in the exercise of their
respective powers. This means that the essential powers
which are well understood in law cannot be deliberately
encroached upon by any organ of the State.
87. Creative judicial activism has been a subject of
both controversy reaching brickbats as also bouquets
to the courts. Under the Constitution which clothes
both citizens and persons with fundamental rights
besides tasking the State with the achieving of goals
declared in the Directive Principles, judicial activism
as opposed to a mere passive role may be the much-
needed choice. Judicial activism, however, must have a
sound juridical underpinning and cannot degenerate into
a mere exercise of subjectivism.
88. The learned Solicitor General is right therefore
that judicial restraint may be a virtue in the elevated
region of constitutional law. Being the grundnorm, it
is indeed a rar efied field where the court must tread
wearily (See Divisional Manager, Aravali Golf C lub and
Another v. Chander Hass and Another24). This Court
indeed has admonished against the court itself running
the Government. In Asif Hameed v. State of J & K ,25 no
doubt this court refers to the following observations
of Frankfurter, J. in para 18:
“All power is, in Madison's phrase, “of an
encroaching nature”. Judicial power is not
immune against this human weakness. It also
must be on guard against encroaching beyond its
proper bounds, and not the less so since the
only restraint upon it is se lf-restraint....
Rigorous observance of the difference between
limits of power and wise exercise of power —
between questions of authority and questions
of prudence — requires the most alert
appreciation of this decisive but subtle
relationship of two concepts that too eas ily
25 (1989) Suppl.2 SCC 364
coalesce. No less does it require a disciplined
will to adhere to the difference. It is not
easy to stand aloof and allow want of wisdom
to prevail to disregard one's own strongly held
view of what is wise in the conduct of affairs.
But it is not the b usiness of this Court to
pronounce policy. It must observe a fastidious
regard for limitations on its own power, and
this precludes the court's giving effect to its
own notions of what is wise or politic. That
self-restraint is of the essence in the
observance of the judicial oath, for the
Constitution has not authorized the judges to
sit in judgment on the wisdom of what Congress
and the executive branch do.”
89. In the work “Judicial Activism” in India by SP
Sathe, the learned author in the chapter ‘Legitima cy
of Judicial Activism’ observes: -
“Legitimacy of Judicial Activism
The realist school of jurisprudence exploded
the myth that the judges merely declared the
pre-existing law or interpreted it and asserted
that the judges made the law. It stated that
the law was what the courts said it was. This
is known as legal scepticism and was really a
reaction to Austin’s definition of law as a
command of the political sovereign. According
to analytical jurisprudence a court merely
found the law or merely interpr eted the law.
The American realist school or jurisprudence
asserted that the judges made law, though
interstitially. Jerome Frank, Justice Holmes,
Cardozo, and Llewellyn were the chief exponents
of this school. The Indian Supreme Court not
only makes law, as understood in the sense of
the realist jurisprudence, but actually has
started ‘legislating’ exactly in the way in
which a legislature legislates. Judicial law -
making in the realist sense in what the Court
does when it expands the meanings of the words
‘personal liberty’ or ‘due process of law’ or
‘freedom of speech and expression’. When the
Court held that a commercial speech
(advertisement) was entitled to the protection
of freedom of speech and expression, it was
judicial law -making in the realist sen se.
Similarly, the basic structure doctrine or the
parameters for reviewing the President’s
action under article 356 or the wider meanings
of the words ‘life’, ‘liberty’, and ‘procedure
established by law’ in article 21 of the
Constitution by the Supreme C ourt are instances
of judicial law -making in the realist sense.
When, however, the Court lays down guidelines
for inter -country adoption, against sexual
harassment of working women at the workplace,
or for abolition of child labour, it is not
judicial law -making in the realist sense these
are instances of judicial excessivism that fly
in the face of the doctrine of separation of
powers. The doctrine of separation of powers
envisages that the legislature should make law,
the executive should execute it, and the
judiciary should settle disputes in accordance
with the existing law. In reality such
watertight separation exists nowhere and is
impracticable. Broadly it means that one organ
of the State should not perform a function that
essentially belongs to ano ther organ. While
law-making through interpretation and
expansion of the meanings of open -textured
expressions such as ‘due process of law’,
‘equal protection of law’, or ‘freedom of
speech and expression’ is a legitimate judicial
function, the making of a n entirely new law,
which the Supreme Court has been doing through
directions in the above -mentioned cases, is not
a legitimate judicial function. True, the Court
has not supplanted but has merely supplemented
the legislature through such directions. It ha s
said in each case that it legislated through
directions only because no law existed to deal
with situations such as inter -country adoption
or sexual harassment of working women and that
its direction could be replaced by legislation
of the legislature.”
90. In the work, “The Nature of the Judicial Process”
by Benjamin N. Cardozo, in the lecture, “The Method of
Sociology - The Judge as a Legislator. ” Justice
Cardozo observes under the following subject : -
…No doubt the limits for the judge are
narrower. He legislates only between gaps. He
fills the open spaces in the law. How far he
may go without travelling beyond the walls of
the interstices cannot be staked out for him
upon a chart. He must learn it for himself as
he gains the sense of fitness and proportion
that comes with years of habitude in the
practice of an art. Even within the gaps,
restrictions not easy to define, but felt,
however impalpable they may be, by every judge
and lawyer, hedge and circumscribe his ac tion.
They are established by the traditions of the
centuries, by the example of other judges, his
predecessors and his colleagues, by the
collective judgment of the profession, and by
the duty of adherence to the pervading spirit
of the law.
…The proces s, being legislative, demands the
legislator’s wisdom.
…Customs, no matter how firmly established, are
not law, they say, until adopted by the courts.
Even statues are not law because the courts
must fix their meaning. That is the view of
Gray in his “Na ture and Sources of the Law.”
“The true view, as I submit,” he says, “is that
the Law is what the Judges declare; that
statues, precedents, the opinions of learned
experts, customs and morality are the sources
of the Law.” So, Jethro Brown in a paper on
“Law and Evolution,” tells us that a statue,
till construed, is not real law. It is only
“ostensible” law, Real law, he says, is not
found anywhere except in the judgment of a
court…
..They have the right to legislate within gaps,
but often there are no gap s. We shall have a
false view of the landscape if we look at the
waste spaces only, and refuse to see the acres
already sown and fruitful..
..The judge, even when he is free, is still
not wholly free. He is not to innovate at
pleasure. He is not a knight -errant, roaming
at will in pursuit of his own ideal of beauty
or of goodness. He is to draw his inspiration
from consecrated principles. He is not to yield
to spasmodic sentiment, to vague and
unregulated benevolence. He is to exercise a
discretion informe d by tradition, methodized
by analogy, disciplined by system, and
subordinated to “the primordial necessity of
order in the social life.” Wide enough in all
conscience is the field of discretion that
remains.”
(Emphasis Supplied )
91. Close to the aspect of separation of power s, is
controversial subject of judicial activism. In the work
“Judicial Activism, Authority, Principles and Policy
in The Judicial Method” by Hon’ble Justice Michael
Kirby, we find of particular interest, the following:
“The acute needs of the developing countries
of the Commonwealth have sometimes produced an
approach to constitutional interpretation that
is unashamedly described as “activist”,
including by judges themselves. Thus in India,
at least in most legal circles, the phrase
“judicial activism” is not viewed as one of
condemnation. So urgent and numerous are the
needs of that society that anything else would
be regarded by many – including many judges and
lawyers – as an abdication of the final court’s
essential constit utional role .
One instance may be cited from Indian
experience: the expansion of the traditional
notion of standing to sue in public interest
litigation. The Indian Supreme Court has upheld
the right of prisoners, the poor and other
vulnerable groups to enlist its constitutional
jurisdiction by simply sending a letter to the
Court. This might not seem appropriate in a
developed country. Yet it appears perfectly
adapted to the nation to which the Indian
Constitution speaks. Lord Chief Justice Woolf
recently confessed to having been astounded at
first by the proactive approach of the Indian
Supreme Court in this and other aspects.
However, he went on:
“…I soon realised that if that Court was to
perform its essential role in Indian society,
it had no option but to adopt the course it
did and I congratulate it for the courage it
has shown.””
(Emphasis Supplied)
92. Unlike demand s of a formal democracy, the hallmark
of a substantive democracy and if we may say so, a
liberal democracy must be borne in mind. Democ racy is
inextricably intertwined with power to the people. The
ballot, is more potent than the most powerful gun.
Democracy facilitates a peaceful revolution at the
hands of the common man if elections are held in a free
and fair manner. Elections can be c onflated with a non -
violent coup capable of unseating the most seemingly
powerful governing parties, if they do not perform to
fulfil the aspiration s of the governed. Democracy is
meaningful only if the sublime goals enshrined in the
preamble to the Constitution receive the undivided
attention of the rulers, namely, social, political and
economic justice. The concepts of liberty, equality and
fraternity must not be strange b edfellows to the ruling
class. Secularism, a basic feature of the Constitution
must inform all actions of the State, and therefore,
cannot be spurned but must be observed in letter and
spirit. Democracy can be achieved only when the
governing dispensation sincerely endeavour s to observe
the fundamental right s in letter and spirit. Democracy
also, needless to say, would become fragile and may
collapse, if only lip service is paid to the rule of
law. We cannot be oblivious to the fact that th e
founding fathers have contemplated that not only must
India aspire for a democratic form of government and
life but it is their unambiguous aim that India must
be a Democratic Republic. The conventional definition
of a ‘Republic’ is that it is a Body Pol ity, in which,
the Head of State is elected. However, the republican
character of our democracy also means that the majority
abides by the Constitution ensuring rights granted
under it and also pursues goals en shrined in it. A
brute majority generated by a democratic process must
conform to constitutional safeguards and the demands
of constitutional morality. A Democratic Republic
contemplates that majoritarian forces which may be
compatible with a democracy, must be counter balanced
by protection accorded to those not in the majority.
When we speak about the minority, the expression is not
to be conflated with or limited to linguistic or
religious minorit ies. These are aspects which again
underly the need for an independent election
commission .
93. It may be true that the resort to courts is not a
remedy for a ll ills in a society (see Common Cause v.
Union of India and Others26) We are equally cognizant
that the courts must not try to run a Government nor
behave like emperors. We also take notice of the
following words of this Court in Divisional Manager,
Aravali Golf Club and Another v. Chander Hass and
Another ,27 where the merit of exercising judicial
restraint has been emphasized.
“33. Judicial restraint is consistent with and
complementary to the balance of power among the
three independent branches of the State. It
accomplishes this in two ways. First, judicial
restraint not only recognises the equality of
the other two branches wi th the judiciary, it
also fosters that equality by minimising inter -
branch interference by the judiciary. In this
analysis, judicial restraint may also be called
judicial respect, that is, respect by the
judiciary for the other coequal branches. In
contrast, judicial activism's unpredictable
results make the judiciary a moving target and
thus decreases the ability to maintain equality
with the co -branches. Restraint stabilises the
judiciary so that it may better function in a
system of inter -branch equality .”
“34. Second, judicial restraint tends to
protect the independence of the judiciary. When
courts encroach into the legislative or
administrative fields almost inevitably
voters, legislators and other elected
officials will conclude that the activities of
judges should be closely monitored. If judges
act like legislators or administrators it
follows that judges should be elected like
legislators or selected and trained like
administrators. This would be
counterproductive. The touchstone of an
independent judic iary has been its removal from
the political or administrative process. Even
if this removal has sometimes been less than
complete, it is an ideal worthy of support and
one that has had valuable effects. ”
“38. The moral of this story is that if the
judiciary does not exercise restraint and
overstretches its limits there is bound to be
a reaction from politicians and others. The
politicians will then step in and curtail the
powers, or even the independence, of the
judiciary (in fact the mere threat may do, as
the above example demonstrates). The judiciary
should, therefore, confine itself to its proper
sphere, realising that in a democracy many
matters and controversies are best resolved in
non-judicial setting. ”
However, we may also listen to the following words.
“39. We hasten to add that it is not our
opinion that judges should never be “activist”.
Sometimes judicial activism is a useful adjunct
to democracy such as in the School Segregation
and Human Rights decisions of the US Supreme
Court vide Brown v. Board of Education [347 US
483 : 98 L Ed 873 (1954)], Miranda v. Arizona
[384 US 436 : 16 L Ed 2d 694 (1966)],
Roe v. Wade [410 US 113 : 35 L Ed 2d 147
(1973)] , etc. or the decisions of our own
Supreme Court which expanded the scope of
Articles 14 an d 21 of the Constitution. This,
however, should be resorted to only in
exceptional circumstances when the situation
forcefully demands it in the interest of the
nation or the poorer and weaker sections of
society but always keeping in mind that
ordinarily the task of legislation or
administrative decisions is for the
legislature and the executive and not the
judiciary. ”
(Emphasis Supplied)
94. A Constitution Bench Judgment reported in State of
T.N. v. State of Kerala and another28 summarised its
conclusions on the constitutional principles relating
to separation of powers as follows:
“126.1. Even without express provision of the
separation of powers, the doctrine of
separation of powers is an entrenched principle
in the Constitution of India. The doctrine of
separation of powers informs the Indian
constitutional structure and it is an e ssential
constituent of rule of law. In other words, the
doctrine of separation of power though not
expressly engrafted in the Constitution, its
sweep, operation and visibility are apparent
from the scheme of Indian Constitution.
Constitution has made dema rcation, without
drawing formal lines between the three organs —
legislature, executive and judiciary. In that
sense, even in the absence of express provision
for separation of powers, the separation of
powers between the legislature, executive and
judiciary is not different from the
Constitutions of the countries which contain
express provision for separation of powers.
126.2. Independence of courts from the
executive and legislature is fundamental to the
rule of law and one of the basic tenets of
Indian Co nstitution. Separation of judicial
power is a significant constitutional
principle under the Constitution of India.
126.3. Separation of powers between three
organs—the legislature, executive and
judiciary —is also nothing but a consequence of
principles o f equality enshrined in Article 14
of the Constitution of India. Accordingly,
breach of separation of judicial power may
amount to negation of equality under Article
14. Stated thus, a legislation can be
invalidated on the basis of breach of the
separation of powers since such breach is
negation of equality under Article 14 of the
Constitution.”
95. The right to vote is not a civil right. A Bench
of six learned Judges in N.P. Ponnuswami v.
Returning_Officer, Nam akkal,29 in the context of
Article 329(b) held that the right to vote was a
creature of a statute or a special law and must be
subject to limitations imposed by it. The matter arose
from a challenge to the rejection of the nomination
maintained in a writ petition and the question which
substantially arose was the impact of Article 329(b).
No doubt, the court examined Part XV of the
Constitution and about Article s 325 and 326, the Court
held as follows:
“The other two Artic les in Part XV i.e. Article
325 and 326 deal with two matters of principle
to which the Constitution framers have attached
much importance. They are (1) Prohibition
against dis crimination in the preparation of,
or eligibility for inclusion in, the electo ral
rolls, on grounds of religion, race, caste, sex
or any of them; and (2) adult sufferage.”
The Court really was not concerned with the
question as to whether Article 326 provided for a
Constitutional right to vote.
96. In Jyoti Basu and Others. Debi Ghosal and Others30,
the Court was dealing with a challenge to the High
court rejecting an application in an Election Petition
to strike out the names of certain parties from the
array of parties. The Court inter alia held that
Article 326 provides for elections to be held on the
basis of adult franchise. Thereafter, the Court held
as follows:
“7. The nature of the right to elect, the right
to be elected and the right to dispute an
election and the scheme of the constitutional
and statutory provisions in relation to these
rights have been explained by the Court in N.P.
Ponnuswami v. Returning Officer , Namakkal
Constituency [(1952) 1 SCC 94 : AIR 1952 SC 64
: 1952 SCR 218 : 1952 SCJ 100] and Jagan
Nath v. Jaswant Singh [AIR 1954 SC 210 : 1954
SCR 892 : 1954 SCJ 257] . We proceed to state
what we have gleaned from what has been said,
so much as necessary for this case.
8. A right to elect , fundamental though it is
to democracy, is, anomalously enough, neither
a fundamental right nor a common law right. It
is pure and simple, a statutory right. So is
the right to be elected. So is the right to
dispute an election. Outside of statute, there
is no right to elect, no right to be elected
and no right to dispute an election. ”
(Emphasis supplied)
97. Mohan Lal Tripathi vs. District Magistrate,
Raibraally and others31 was a case wherein the appellant
who was elected directly under Section 43 of the U.P.
Municipalities Act was removed by a no -confidence
motion. It was his contention that his removal was
undemocratic as it was sought to be done by a smaller
and different body than the one that elected him. It
is in these facts that the court inter alia held as
follows:
“..But electing representatives to govern is
neither a ‘fundamental right’ nor a ‘common
right’ but a special right created by the
statutes or a ‘political right’ or ‘privilege’
and not a ‘nat ural[‘, absolute’ or ‘vested
right’.
This Court was not dealing with the impact of
Article 326. It followed the judgement in N.P.
Ponnuswamy (supra).
98. In Rama Kant Pandey v. Union of India32, a Bench of
three learned judges was dealing with a petition
challenging the validity of the Representation of the
People (Amendment Ordinance) Act, 1992 on the ground
of violation of Article s 14, 19 and 21. Section 52
providing for countermanding of poll s was amended. It
was in the context of the said challenge, the Court
noted that the right to vote or to stand as a candidate
for election was neither a fundamental nor civil right.
It purported to follow the views which originated in
Ponnuswamy case (supra).
99. In Anukul Chandra Pradhan, Advocate Supreme Court
v. Union of India and others33, a Bench of three learned
Judges, while dealing with a challenge to Section 62(5)
of the 1951 Act, on the ground that it violated Article
14 and 21 of the Constitution, upheld Section 62(5).
We may only notice the following views expressed by the
Court:
“5. There are provisions made in the election
law which exclude persons with criminal
background of the kind specified therein, from
the election scene as candidates and voters.
The object is to prevent criminalisation of
politics and maintain probity in e lections. Any
provision enacted with a view to promote this
object must be welcomed and upheld as
subserving the constitutional purpose. The
elbow room available to the legislature in
classification depends on the context and the
object for enactment of th e provision. The
existing conditions in which the law has to be
applied cannot be ignored in adjudging its
validity because it is relatable to the object
sought to be achieved by the legislation.
Criminalisation of politics is the bane of
society and negat ion of democracy. It is
subversive of free and fair elections which is
a basic feature of the Constitution. Thus, a
provision made in the election law to promote
the object of free and fair elections and
facilitate maintenance of law and order which
are the essence of democracy must, therefore,
be so viewed. More elbow room to the
legislature for classification has to be
available to achieve the professed object.”
100. The Court also found other reasons to justify the
provision. It was noted that permitting eve ry person
in prison to vote, would lead to a resource crunch in
terms of police force required to facilitate the right.
The Court also went on to hold that the Right to Vote
is also subject to limitations imposed by the Statute.
The specific question, as t o whether it constituted a
Constitutional Right under Article 326, as such, was
not presented for adjudication.
101. In Shyamdeo Pd. Singh v. Nawal Kishore Yadav34, a
Bench of three learned judges while dealing with a case
arising out of an election petition ha d this to say
about Article 326:
“9. Article 326 of the Constitution is founded
on the doctrine of adult suffrage. It provides
that every person who is a citi zen of India
and who is not less than 18 years of age on
such date as may be fixed in that behalf by or
under any law made by the appropriate
legislature and is not otherwise disqualified
under the Constitution or any law made by the
appropriate legislatur e on the ground of non -
residence, unsoundness of mind, crime or
corrupt or illegal practice, shall be entitled
to be registered as a voter at any such
election. This Article clearly contemplates
law being enacted by an appropriate legislature
providing for qualifications and
disqualifications subject to which a citizen
of India not less than 18 years of age shall
be entitled to be registered as a voter and
exercise his right to franchise. Article 327
provides for law being made by Parliament
subject to the provisions of the Constitution
with respect to all matters relating to or in
connection with elections to either House of
Parliament or to the House or either House of
the Legislature of a State which law may
include provisions for the preparation of
electoral rolls, the delimitation of
constituencies and all other matters necessary
for securing the due constitution of such House
or Houses.
102. The Court, inter alia , after referring to Section
62 of the 1951 Act, held as follows:
”… A person who is not entered in the electoral
roll of any constituency is not entitled to
vote in that constituency though he may be
qualified under the Constitution and the law
to exercise the right to franchise. To be
entitled to cast a ballot the person should be
entered in the electoral roll…”
It was further held:
“15. A perusal of the abovesaid provisions
leads to certain irresistible inferences.
Article 326 of the Constitution having
recognised the doctrine of adult suffrage has
laid down constitutional parameters
determinative of the qualifications and
disqualifications relating to registration as
a voter at any election. The two Articles,
i.e., Article 326 and Article 327 contemplate
such qualifications and disqualifications
being provided for, amongst other things, by
the appropriate legislature. The fountain
source of the 1950 Act and the 1951 Act
enacting provisions on such subject are the
said two Articles of the Constitution. The
provisions of Section 16 of the 1950 Act and
Section 62 of the 1951 Ac t read in
juxtaposition go to show that while Section 16
of the 1950 Act provides for “disqualifications
for registration” in an electoral roll,
(qualifications having been prescribed by
Section 27 thereof), Sections 62 of the 1951
Act speaks of “right to vote” which right is
to be determined by reference to the electoral
roll of the constituency prepared under the
1950 Act. The eligibility for registration of
those enrolled having been tested by reference
to Section 16 or Section 27 of the Act, as the
case may be, and the electoral roll having been
prepared, under the 1950 Act if a person is or
becomes subject to any of the disqualifications
provided in clauses ( a), (b) and (c) of sub -
section (1) of Section 16, two consequences may
follow. His name may fort hwith be struck off
the electoral roll, in which the name is
included, under sub -section (2) of Section 16
of the 1950 Act. Even if the name is not so
struck off yet the person is disqualified from
exercising right to vote at the election by
virtue of sub -section (2) of Section 62 of the
1951 Act. The qualifications prescribed for
enrolment in the electoral roll as provided by
clause ( b) of sub -section (5) of Section 27 of
the 1950 Act are: ( i) ordinary residence in a
teachers' constituency, ( ii) being enga ged in
the relevant educational institution for a
total period of at least three years within the
six years immediately before the qualifying
date. The inquiry into availability of these
eligibility qualifications, under the Scheme
of the 1950 Act is to be made at the time of
preparation of the electoral roll or while
entering or striking out a name in or from the
electoral roll. Section 62 of the 1951 Act does
not provide that a person who is not qualified
to be enrolled as an elector in the electoral
roll shall not be entitled to vote at the
election. To put it briefly a disqualification
under Section 16 of the 1950 Act has a
relevance for and a bearing on the right to
vote under Section 62 of the 1951 Act but being
not qualified for enrolment in the elect oral
roll under Section 27 of the 1950 Act has no
relevance for or bearing on the right to vote
at an election under Section 62 of the 1951
Act. That is the distinction between a
“disqualification” and “not being qualified”.
It is, however, relevant to n otice that the case
arose from a challenge to the result of an election
held to a legislative council and Section 27
referred to dealt with legislative councils and not
legislative assemblies.
103. In Union of India v. Assn. for Democratic Reforms35,
the High Court gave certain directions to the Election
Commission on the basis that the right of the voter to
make the right choice depended upon the availability
of information about the past of the candidates and it
must be disclosed to the voters. This Cour t found that
for the health of democracy and fair elections and for
ensuring the purity of elections and having regard to
the width of the jurisdiction of the Election
Commission under Article 324 (1) of the Constitution ,
the directions given by the High c ourt was justified.
This Court however issued certain directions which
modified the directions of the High Court. It is in the
context of these facts, the Court , inter alia, held as
follows:
“46 (7). Under our Constitution, Article
19(1)(a) provides for freedom of speech and
expression. Voter's speech or expression in
case of election would include casting of
votes, that is to say, voter speaks out or
expresses by casting vote. For this purpose ,
information about the candidate to be selected
is a must. Voter's (little man — citizen's)
right to know antecedents including criminal
past of his candidate contesting election for
MP or MLA is much more fundamental and basic
for survival of democracy. The little man may
think over before making his choice of electing
law-breakers as law -makers.”
104. The directions led to the insertion of Sections
33A and 33B. Under Section 33B, it was inter alia
provided that notwithstanding any judgment, no
candidate was liable to disclose or furnish any such
information in respect of his election which is not
required to be disclosed or furnished under the
Representation of the People Act, 1951 or the rules
made thereunder. In People’s Union for civil Liberties
(PUCL) and Another vs. Union of India and Another36
Justice M.B. Shah while dealing with the nature of the
right to vote, inter alia held that “the right of the
voter to know the bio data of the candidate was the
foundation of de mocracy”. It was concluded by the
learned judge that Section 33B of the amended Act was
illegal and invalid. Justice P. Venkatarama Reddi in
the same case went on hold as follows:
“With great reverence to the eminent Judges, I
would like to clarify that the right to vote,
if not a fundamental right, is certainly a
constitutional right. The right originates
from the Constitution and in accordance with
the constitutional mandate contained in
Article 326, the right has been shaped by the
statute, namely the RP Act. That, in my
understanding, is the correct legal position
as regards the nature of the right to vote in
elections to the House of the People and
Legislative Assemblies. It is not very accurate
to describe it as a statutory right, pure and
simple. Ev en with this clarification, the
argument of the learned Solicitor -General that
the right to vote not being a fundamental
right, the information which at best
facilitates meaningful exercise of that right
cannot be read as an integral part of any
fundamenta l right, remains to be squarely met.
Here, a distinction has to be drawn between the
conferment of the right to vote on fulfilment
of requisite criteria and the culmination of
that right in the final act of expressing
choice towards a particular candidate by means
of ballot. Though the initial right cannot be
placed on the pedestal of a fundamental right,
but, at the stage when the voter goes to the
polling booth and casts his vote, his freedom
to express arises. The casting of vote in
favour of one or the other candidate
tantamounts to expression of his opinion and
preference and that final stage in the exercise
of voting right marks the accomplishment of
freedom of expression of the voter. That is
where Article 19(1)( a) is attracted. Freedom
of voting as distinct from right to vote is
thus a species of freedom of expression and
therefore carries with it the auxiliary and
complementary rights such as right to secure
information about the candidate which are
conducive to the freedom. None of the decisions
of this Court wherein the proposition that the
right to vote is a pure and simple statutory
right was declared and reiterated, considered
the question whether the citizen's freedom of
expression is or is not involved when a citizen
entitled to vote casts his vote in favour of
one or the other candidate. ”
(Emphasis supplied)
Justice D.M. Dharmadhikari also agreed with the
following conclusion No.2 at para 123 which contains
the judgment of Justice P. Venkatarama Reddi:
“(2) The right to vote at the elections to the
House of the People or Legislatives Assembly
is a constitutional right but not merely a
statutory right; freedom of voting as distinct
from right to vote is a facet of the
fundamental right enshrined in Article
19(1)(a). the casting of vote in favour of
one or the other candidate marks the
accomplishment of freedom of expression of the
voter.”
105. In Kuldip Nayar and Others v. Union of India and
Others37, the question which ac tually fell for
consideration was the validity of a certain amendment
which came into force on 28.08.2003. By the Amendment,
the requirement of domicile in the State concerned for
being elected to the Council of States was deleted.
The Constitution Bench in the course of its judgment
referred to PUCL (supra) and the court observed as
follows:
“361. The argument of the petitioners is that
the majority view in People's Union for Civil
Liberties [(2003) 4 SCC 399] , therefore, was
that a right to vote is a constitutional right
besides that it is also a facet of fundamental
right under Article 19(1)( a) of the
Constitution.
362. We do not agree with the above submission.
It is clear that a fine distinction was drawn
between the right to vote and the freedom of
voting as a species of freedom of expression,
while reiterating the view in Jyoti
Basu v. Debi Ghosal [(1982) 1 SCC 691] that a
right to elect, fundamental though it is to
democracy, is neither a fundamental righ t nor
a common law right, but pure and simple, a
statutory right.
363. Even otherwise, there is no basis to
contend that the right to vote and elect
representatives of the State in the Council of
States is a constitutional right. Article 80(4)
merely deals with the manner of election of the
representatives in the Council of States as an
aspect of the composition of the Council of
States. There is nothing in the constitutional
provisions declaring the right to vote in such
election as an absolute right under the
Constitution. ”
106. It will be noticed that the Council of States is
not the same as the House of the People within the
meaning of Article 326. We cannot overlook the
following observations:
“448. It shows that the right to vote in “free
and fair elections” is always in terms of an
electoral system prescribed by national
legislation. The right to vote derives its
colour from the right to “free and fair
elections” ; that the right to vote is empty
without the right to “free and fair el ections”.
It is the concept of “free and fair elections”
in terms of an electoral system which provides
content and meaning to the “right to vote”. In
other words, “right to vote” is not ( sic) an
ingredient of the free and fair elections. It
is essential b ut not the necessary ingredient.”
107. In K. Krishna Murthy v. Union of India38, a
Constitution Bench was dealing with the constitutional
validity of certain aspects of the reservation policy
in regard to the composition of elected local self-
government institutions. The Bench relied upon M.M.
Tripathi case (supra) and observed as fo llows:
“..It is a well -settled principle in Indian
Law, that the right to vote and contest
elections does not have the status of
fundamental rights. Instead, they are in the
nature of legal rights which can be controlled
though legislative means…”
108. The request of the petitioner therein to reconsider
the precedent wherein the right of political
participation was categorised as statutory right was
turned down. No doubt, this case was not dealing with
elections to the House of the People or the State
Legislature.
109. In People's Union for Civil Liberties v. Union of
India39, [the second PUCL case ], a Bench of three
learned Judges recognised the right of the person to
express his disapproval of the candidates who stood for
election by pressing a button which would indicate
‘none of the above ’ (NOTA). In the course of this
judgment dealing with the first PUCL judgment (supra),
the Court held as follows:
“After a careful perusal of the verdicts of
this Court in Kuldip Nayar [(2006) 7 SCC
1], Assn. for Democratic Reforms [(2002) 5 SCC
294] and People's Union for Civil
Liberties [(2003) 4 SCC 399] , we are of the
considered view that Kuldip Nayar [(2006) 7
SCC 1] does not overrule the other two
decisions rather it only reaffirms what has
already been said by the afo resaid two
decisions. The said paragraphs recognise that
right to vote is a statutory right and also
in People's Union for Civil Liberties [(2003)
4 SCC 399] it was held that “a fine distinction
was drawn between the right to vote and the
freedom of voting as a species of freedom of
expression”. Therefore, it cannot be said
that Kuldip Nayar [(2006) 7 SCC 1] has observed
anything to the contrary. In view of the whole
debate of whether these two decisions were
overruled or discarded because of the opening
line in para 362 of Kuldip Nayar [(2006) 7 SCC
1] i.e. “We do not agree with the above
submissions” we are of the opinion that this
line must be read as a whole and not in
isolation. The contention of the petitioners
in Kuldip Nayar [(2006) 7 SCC 1] was that
majority view in People's Union for Civil
Liberties [(2003) 4 SCC 399] held that right
to vote is a constitutional right besides that
it is also a facet of the fundamental right
under Article 19(1)( a) of the Constitution. It
is this contention on which th e Constitution
Bench did not agree too in the opening line in
para 362 and thereafter went on to clarify that
in fact in People's Union for Civil
Liberties [(2003) 4 SCC 399], a fine
distinction was drawn between the right to vote
and the freedom of voting as a species of
freedom of expression. Thus, there is no
contradiction as to the fact that right to vote
is neither a fundamental right nor a
constitutional right but a pure and simple
statutory right. The same has been settled in
a catena of cases and it is clearly not an
issue in dispute in the present case. With the
above observation, we hold that there is no
doubt or confusion persisting in the
Constitution Bench judgment of this Court
in Kuldip Nayar [(2006) 7 SCC 1] and the
decisions in Assn. for Dem ocratic
Reforms [(2002) 5 SCC 294] and People's Union
for Civil Liberties [(2003) 4 SCC 399] do not
stand impliedly overruled. ”
(Emphasis supplied)
110. Article 326 reads as follows :
“326. Elections to the House of the People and
to the Legislative Assemblies of States to be
on the basis of adult suffrage. —The elections
to the House of the People and to the
Legislative Assembly of every State shall be
on the basis of adult suffrage; that is to say,
every person who is a citizen of Ind ia and who
is not less than 2 [eighteen years] of age on
such date as may be fixed in that behalf by or
under any law made by the appropriate
Legislature and is not otherwise disqualified
under this Constitution or any law made by the
appropriate Legislatu re on the ground of non -
residence, unsoundness of mind, crime or
corrupt or illegal practice, shall be entitled
to be registered as a voter at any such
election.”
111. It is necessary to notice Articles 327 and 328 :
“327. Power of Parliament to make provision
with respect to elections to Legislatures. —
Subject to the provisions of this Constitution,
Parliament may from time to time by law make
provision with respect to all matters relating
to, or in connection with, elections to either
House of Parliament or to the House or either
House of the Legislature of a State including
the preparation of electoral rolls, the
delimitation of constituencies and all other
matters necessary for securing the due
constitution of such House or Houses.”
“328. Power of Legislature of a State to make
provision with respect to elections to such
Legislature. —Subject to the provisions of this
Constitution and in so far as provision in that
behalf is not made by Parliament, the
Legislature of a State may from time to time
by law make pr ovision with respect to all
matters relating to, or in connection with, the
elections to the House or either House of the
Legislature of the State including the
preparation of electoral rolls and all other
matters necessary for securing the due
constitutio n of such House or Houses.”
112. We may proceed to decode Article 326. In the first
part, the Constitution provides that election to the
House of the People and to the Legislative Assembly of
every State, shall be on the basis of adult suffrage.
This is followed by the words, which is intended to
expound what ‘adult suffrage’ means. The Founding
Fathers have, in unmistakable terms, declared that
elections to the two Legislative Bodies in question,
shall be thrown open to participation to every person,
who is:
a) A citizen of India;
b) Is not less than eighteen years of age. The
condition must be fulfilled as regards the
qualification with reference to ‘such date’;
II. ‘Such date’ is to be as specified in or under a
law made by the appropriate Legislature. The
appropriate Legislature would mean, Parliament
in the case of elections to the House of People
and the Legislative Assembly of the concerned
State, in the case of the Legislative Assembly;
III. The person, who is a citizen and not less than
eighteen years as on the date as indicated in
the law, as aforesaid, Article 326 continues to
declare must not be disqualified under the
Constitution or any law made by the appropriat e
Legislature.
IV. The appropriate Legislature can make a law
providing for a disqualification, however, only
as provided in Article 326 itself. In other
words, Article 326 has limited the power of the
Legislature concerned in the matter of
stipulating disqu alification s. What are those
disqualifications, which can be stipulated by a
law?
V. The disqualifications, which can be provided by
a law are as follows:
a. Non-residence;
b. Unsoundness of mind;
c. Crime;
d. Corrupt practice;
e. Illegal practice;
VI. Moving forward, and proceeding on the basis that
a person is a citizen and is not less than
eighteen years on the relevant date and is not
disqualified in terms of what we have indicated
just herein before, viz., under any of the
grounds indicated a s ‘a’ to ‘e’, then Article
326 declares that such person shall be entitled
to be registered as a voter at any such election.
The words ‘any such election’ would mean
elections either to the House of the People or
the House of the Legislative Assembly. We again
reiterate that all conditions being present, as
we have referred to with reference to Article
326, the person becomes entitled to be registered
as a voter.
113. Accordingly, it is that Parliament enacted in
1950, The Representation of Peoples Act, 1950
(hereinafter referred to as ‘the 1950 Act’). Part III
provides for electoral rolls for Assembly
Constituencies. Section 14(b), as substituted w.e.f.
01.03.1956, de fines ‘qualifying date’:
“”Qualifying date”, in relation to the
preparation or revision of every electoral roll
under this Part, means the 1st day of January
of the year in which it is so prepared or
revised:”
114. We are omitting reference to the proviso as it
related only to the year 1989. Section 15 of the 1950
Act declares that for every constituency, there must
be an electoral roll prepared under the said Act under
the supervision, direction and control of the Election.
Section 16 provides as follows:
“16. Disqualifications for registration in an
electoral roll. —(1) A person shall be
disqualified for registration in an electoral
roll if he —
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared
by a competent court ; or
(c) is for the tim e being disqualified from
voting under the provisions of any law relating
to corrupt practices and other offences in
connection with elections.
(2) The name of any person who becomes so
disqualified after registratio n shall
forthwith be struck off the electoral roll in
which it is included:
Provided that the name of any person struck off
the electoral roll of a constituency by reason
of a disqualification under clause (c) of sub -
section ( 1) shall forthwith be re -instated in
that roll if such disqualification is , during
the period such roll is in force, removed under
any law authorising such removal. ”
115. With effect from 30.12.1958, Section 19 of the 1950
Act reads as follows:
“19. Conditions of registration. — Subject
to the foregoing provisions of this Part, every
person who —
(a) is not less than eighteen years of age on
the qualifying date, and
(b) is ordinarily resident in a constituency,
shall be entitled to be registered in the
electoral roll for that constituency. ”
116. It will be clear, therefore, that the requirement
of minimum age of eighteen years, as provided in
Article 326, is to be determined with reference to such
date, as may be fixed by or under any law, is to be
understood as the qualifyin g date and it is to be
understood as the 1st day of January of the year, in
which the electoral roll is prepared or revised.
117. Section 20 deals with the meaning of ‘ordinarily
resident’. It provides for various circumstances in
which a person shall not be d eemed to be ordinarily
resident as also circumstances in which he is deemed
to be ordinarily resident. Article 326 read with the
provisions in the 1950 Act, which we have indicated,
together provide the disqualifications for a person to
be not included in an electoral roll. Before the
deletion of the word s ‘and illegal’ in Section 16(c),
it provided for corrupt and illegal practices, which
were relatable to the last part of Article 326.
However, the words ‘illegal practices’ have been
omitted by Act 58 of 1960 w.e.f. 26.12.1960.
Apparently, being relatable to ‘crime’, to be found in
Article 326, Section 16(c) declares that a person may
be disqualified for registration in the electoral roll
on the basis of other offences in connection with
elections. This mean s that a person would be
disqualified for registra tion in the electoral roll,
if he is disqualified under any law relating to corrupt
practices or any other offence in connection with
elections.
118. In 1951, Parliament enacted The Representation of
the People Act, 1951 (hereinafter referred to as, ‘the
1951 Act’).
119. Thereunder, t he word ‘election’ has been defined
in Section 2(d) to mean ‘an election to fill a seat or
seats in either House of Parliament or in the House or
either House of the Legislature of a State. Section
2(e) defines the word ‘elector’ to me an ‘in relation
to a constituency means a person whose name is entered
in the electoral roll of that constituency for the time
being in force and who is not subject to any of the
disqualifications mentioned in section 16 of the
Representation of the People Act, 1950 (43 of 1950)’.
Under Part II, Chapter I deals with qualifications for
membership of Parliament. Chapter II deals with
qualifications for membership of State Legislatures.
Chapter III of the 1951 Act provides for
disqualifications for membership of Parliament and
State Legislatures. Section 8, falling in Chapter III,
deals with disqualification upon conviction for certain
offences. Various offences are enumerated with the
conditions attached therein. Section 8A deals with
disqualification for memb ership, for both Parliament
and State Legislatures, on the ground of corrupt
practices. Section 11A, as it stands, reads:
“11A. Disqualification arising out of
conviction and corrupt practices. — (1) If any
person, after the commencement of this Act, —
is convicted of an offence punishable under
section 171E or section 171F of the Indian
Penal Code (45 of 1860), or under section 125
or section 135 or clause (a) of sub -section (2)
of section 136 of this Act,
he shall, for a period of six years from the
date of the conviction or from the date on
which the order takes effect, be is qualified
for voting at any election.
(2) Any person disqualified by a decision of
the President under sub -section (1) of section
8A for any period shall be disqualified for the
same period for voting at any election.
(3) The decision of the President on a petition
submitted by any person under sub -section (2)
of section 8A in respect of any
disqualification for being c hosen as, and for
being, a member of either House of Parliament
or of the Legislative Assembly or Legislative
Council of a State shall, so far as may be,
apply in respect of the disqualification for
voting at any election incurred by him under
clause (b) o f sub-section (1) of section 11A
of this Act as it stood immediately before the
commencement of the Election Laws (Amendment)
Act, 1975 (40 of 1975), as if such decision
were a decision in respect of the said
disqualification for voting also. ”
120. It is to be noted that Section 11A falls in
Chapter IV, which deals with disqualifications for
voting. Chapter IXA of the Indian Penal Code, 45 of
1860 deals with offences relating to elections. Undue
influence at elections, personation at elections and
bribery, are made punishable offences and are offences
relating to elections.
121. In the 1951 Act, Chapter IV deals with ‘The poll’.
Section 62 deals with the Right to Vote. It reads as
follows:
“62. Right to vote .—
(1) No person who is not, and except as
expressly provided by this Act, every person
who is, for the time being entered in the
electoral roll of any constituency shall be
entitled to vote in that constituency.
(2) No person shall vote at an election in any
constituency if he is subjec t to any of the
disqualifications referred to in section 16 of
the Representation of the People Act, 1950 (43
of 1950).
(3) No person shall vote at a general election
in more than one constituency of the same
class, and if a person votes in more than one
such constituency, his votes in all such
constituencies shall be void.
(4) No person shall at any election vote in the
same constituency more than once,
notwithstanding that his name may have been
registered in the electoral roll for the
constituency more than once, and if he does so
vote, all his votes in that constituency shall
be void.
(5) No person shall vote at any election if he
is confined in a prison, whether under a
sentence of imprisonment or transportation or
otherwise, or is in the lawful cust ody of the
police:
Provided that nothing in this sub -section shall
apply to a person subjected to preventive
detention under any law for the time being in
force.
(6) Nothing contained in sub -sections (3) and
(4) shall apply to a person who has been
authorised to vote as proxy for an elector
under this Act in so far as he votes as a proxy
for such elector.”
122. Section 62(1) of the 1951 Act means the following:
A person, who is not entered in the electoral roll
of a constituency, shall not be entitled to vot e in
that constituency. On the other hand, every person, who
is, for the time being, entered in the electoral roll
of any constituency, is declared entitled to vote in
the constituency. Section 62(2) then proceeds to
declare that no person shall vote at an election in any
constituency, if he is subject to any of the
disqualification s referred to in Section 16 of the 1950
Act. In our view, the meaning of the Section 62(1) read
with Section 62(2) is the following:
To cast the vote, a person must be included in the
electoral roll of the constituency. However, even if
it be that he is so included, if at the time of the
election, when he casts the vote, he has incurred any
of the disqualifications referred to in Section 16 of
the 1950 Act, then his Right to Vote will stand
eclipsed.
123. Section 62(3) forbids a person, who may find his
name in the electoral roll of more than one
constituency of the same class, from casting his vote
in more than one constituency . In such an eventuality,
notwithstanding the fact that his name is so included,
if he votes in more than one constituency, his b allot
will be void in regard to all the constituencies in
which he casts his vote.
124. Equally, under Section 62(4), if his name is
included more than once in the electoral roll of the
same constituency and should he cast his vote more than
once, all the votes in regard to the said constituency
are declared void.
125. Section 62(5) enacts a prohibition against the
person casting his vote, if he is confined to a prison.
This would mean that while a person’s name may be
included in an electoral roll, which would enti tle him,
ordinarily, to cast his vote, however, Section 62(5)
deprives him of his right to cast his vote, when he is
so confined. We have noticed that the validity of this
provision has been upheld in Anukul (supra). Also, we
find the same view taken in Chief Election Commissioner
and Others v. Jan Chaukidar (Peoples Watch) and
Others40, wherein this Court ha s upheld the validity of
Section 62(5). A person may be so confined, if he is
under a sentence of imprisonment or transportation or
otherwise or if he is in the custody of police. We may,
at this juncture, notice one feature. Article 326,
undoubtedly, provides for adult suffrage . It declares
that if a person is a citizen and is above eighteen
years of age and he is not disqualified as provided in
Article 326 by or under any law, then, such person
shall be entitled to have his name entered in the
electoral roll. It does not expressly say that he s hall
have the right to cast his vote. The right to cast the
vote, as such, is expressly conferred under Section
62(1), undoubtedly, on a person, whose name is entered
in the electoral roll. We have already noticed the
interplay of Section 62(1) and Section 62(2). Equally,
we may notice that even if a person is included in the
electoral roll, if he is in confinement in a prison,
it would not entitle him or rather it would disentitle
him to cast his vote. In other words, while ordinarily,
the Right to Vote in evitably follows from the inclusion
of a person in the electoral roll, the Right to Vote
may be denied in terms of the law as we have noticed.
The mere inclusion of a person’s name more than once
in an electoral roll in a constituency, it has been
declared, also would not entitle him to vote more than
once [See Section 62(4)]. Equally, inclusion of a
person’s name in the electoral roll of more than one
constituency, would not entitle a person to cast his
vote, in terms of such inclusion in more than one
constituency [See Section 62(3)]. No doubt, we do
notice that this Court has issued notice in a case,
which involves a challenge to Section 62(5) of the 1951
Act.
126. Section 16(1)(b) of the 1950 Act, provides for
disqualification for a person of unsound mind to be
registered in an electoral roll. There is a condition,
which is that, he must be so declared by a competent
court. Unsoundness of mind is also to be found in
Article 326 as a disqualification. Section 16(1)(c) of
the 1950 Act, it is to be noticed, di squalifies a person
for registration in an electoral roll, if he is for the
time being disqualified from voting under any law
relating to corrupt practices and other offences in
connection with elections. If such a person is included
in such electoral roll , his name is to be struck off
from the electoral roll [See Section 16(2)]. Section
11A of the 1951 Act provides for disqualifications from
voting. We have already noticed its contents.
127. In Desiya Murpokku Dravida Kazhagam (DMDK) and
another v. Election Com mission of India41, dealing with
the validity of the Symbols Order 1968, providing for
recognition and allotment based on the criteria
mentioned therein, Justice Chelameswar authored a
dissent. In the course of his dissent, the learned
Judge, after adverting to Articles 81 and 170, which
respectively provided for the composition of the Lok
Sabha and the Legislative Assemblies, and, more
particularly, that the Members of the said Legislative
Bodies, would be chosen by direct elections and after
adverting to Articles 325 and 326, held as follows:
“98. The cumulative effect of all the
abovementioned provisions is that the Lok Sabha
and the Legislative Assemblies are to consist
of members, who are to be elected by all the
citizens, who are of 18 years of age and are
not otherwise disqualified, by a valid law, to
be voters. Thus, a constitutional right is
created in all citizens, who are 18 years of
age to choose (participate in the electoral
process) the members of the Lok Sabha or the
Legislative Assembl ies. Such a right can be
restricted by the appropriate legislature only
on four grounds specified under Article 326.”
128. In this regard, we may also notice the Judgment of
this Court in Rajbala and others v. State of Haryana
and others42. Therein a Bench of two learned Judges was
dealing with the constitutionality of the Haryana
Panchayati Raj (Amendment) Act, 2015, under which,
certain categories of person were rendered incapable
of contesting elections. One such category was persons
who did not possess spec ified educational
qualifications. Justice Chelameswar speaking for the
Bench, held as follows:
“31. The right to vote of every citizen at an
election either to the Lok Sabha or to the
Legislative Assembly is recognised under
Articles 325 and 326 subject to limitations
(qualifications and disqualifications )
prescribed by or under the Constitution. On the
other hand, the right to vote at an election
either to the Rajya Sabha or to the Legislative
Council of a State is confined only to Members
of the electoral colleges specified under
Articles 80(4) and (5) and Articles 171(3)( a),
(b), (c) and ( d) [ “171. (3) Of the total
number of members of the Legislative Council
of a State —(a) as nearly as may be, one -third
shall be elected by electorates consisti ng of
members of municipalities, district boards and
such other local authorities in the State as
Parliament may by law specify;( b) as nearly as
may be, one -twelfth shall be elected by
electorates consisting of persons residing in
the State who have been f or at least three
years graduates of any university in the
territory of India or have been for at least
three years in possession of qualifications
prescribed by or under any law made by
Parliament as equivalent to that of a graduate
of any such university ;(c) as nearly as may be,
one-twelfth shall be elected by electorates
consisting of persons who have been for at
least three years engaged in teaching in such
educational institutions within the State, not
lower in standard than that of a secondary
school, as may be prescribed by or under any
law made by Parliament;( d) as nearly as may be,
one-third shall be elected by the members of
the Legislative Assembly of the State from
amongst persons who are not members of the
Assembly;( e) the remainder shall be nom inated
by the Governor in accordance with the
provisions of clause (5).”] respectively. In
the case of election to the Rajya Sabha, the
electoral college is confined to elected
members of Legislative Assemblies of various
States and representatives of Unio n
Territories [ “80. (4) The representatives of
each State in the Council of States shall be
elected by the elected members of the
Legislative Assembly of the State in accordance
with the system of proportional representation
by means of the single transfe rable vote.”].
In the case of the Legislative Council, the
electoral college is divided into four parts
consisting of: ( i) members of various local
bodies specified under Article 171(3)( a); (ii)
certain qualified graduates specified under
Article 171(3)( b); (iii) persons engaged in the
occupation of teaching in certain qualified
institutions described under Article
171(3)(c); and ( iv) Members of the Legislative
Assembly of the State concerned.
Interestingly, persons to be elected by the
electors falling und er any of the
abovementioned categories need not belong to
that category, in other words, need not be a
voter in that category. [ G.
Narayanaswami v. G. Pannerselvam , (1972) 3 SCC
717, pp. 724 -25, para 14:“ 14. Whatever may have
been the opinions of Constitu tion-makers or of
their advisers, whose views are cited in the
judgment under appeal, it is not possible to
say, on a perusal of Article 171 of the
Constitution, that the Second Chambers set up
in nine States in India were meant to
incorporate the principl e of what is known as
‘functional’ or ‘vocational’ representation
which has been advocated by Guild -Socialist and
Syndicalist Schools of Political Thought. Some
of the observations quoted above, in the
judgment under appeal itself, militate with the
conclusions reached there. All that we can
infer from our constitutional provisions is
that additional representation or weightage
was given to persons possessing special types
of knowledge and experience by enabling them
to elect their special representatives a lso for
Legislative Councils. The concept of such
representation does not carry with it, as a
necessary consequence, the further notion that
the representative must also possess the very
qualifications of those he represents.”]”
129. Thereafter the Court also held as follows:
“38. We, therefore, proceed on the basis that,
subject to restrictions mentioned above, every
citizen has a constitutional right to elect and
to be elected to either Parliament or the State
Legislatures.”
130. Still further, the Court held as follows:
“The right to vote at an election to the Lok
Sabha or the Legislative Assembly can only be
subjected to restrictions specified in Article
326. It must be remembered that under Article
326, the authority to restrict the r ight to
vote, can be exercised by the appropriate
Legislature.”
131. What are the incidents of a legal right? In Salmond
on Jurisprudence, we find the following discussion
about the characteristics of a legal right:
“(1) It is vested in a person who may be
distinguished as the owner of the right, the
subject of it, the person entitled , the person
of inherence .
(2) It avails against a person, upon whom lies
the correlative duty. He may be distinguished
as the person bound, or as the subject of the
duty, or as the person of incidence .
(3) It obliges the person bound to an act or
omission in favour of the person entitled. This
may be termed t he content of the right.
(4) The act or omission relates to some thing
(in the widest sense of that word), which may
be termed the object or subject-matter of the
right.
(5) Every legal right has a title, that is to
say, certain facts or events by reason of which
the right has become vested in its owner.”
132. Article 168 of the Constitution reads as follows:
“168. Constitution of Legislatures in States
(1) For every State there shall be a
Legislature which shall consist of the
Governor, and
(a) in the States of Bihar, Madhya Pradesh,
Maharashtra, Karnataka and Uttar Pradesh, two
houses:
(b) in other States, one House
(2) Where there are two Houses of the
Legislature of a State, one shall be known as
the Legislative Council and the other as the
Legislative Assembly, and where there is only
one House, it shall be known as the Legislative
Assembly. ”
133. A perusal of Article 168(2) would lead us to the
following inevitable conclusion:
Wherever there are two Houses in a Legislature of
a State, one is designated as Legislative Assembly and
the other is called a Legislative Council. In States,
where there is only one House, it will be called the
Legislative Assembly. So, it is that Article 170 deals
with the composition of Legislative Assemblies whereas
Article 171 deals with the composition of Legislative
Councils. We may bear in mind that Section 27 of the
1950 Act [referred to in Shyamdeo Pd. Singh (supra)]
actually deals with the preparation of electoral roll
for the Legislative Council and not the Legislative
Assembly. We make this observation only to remind
ourselves that there is a distinction between the
Legislature of a State and Legislative Assembly.
Article 16 8 deals with the constitution of the
Legislatures of the States. Apart from the Governor, a
Legislative Assembly, when there is only one House,
would be the other constituent part of the Legislature
of the State. Therefore, Article 326 deals with the
House of the People, and the Legislative Assembly. It
does not deal with Legislative Councils. As far as
Article 327 is concerned, it deals with power of
Parliament to make law with respect to all matters or
relating to election in connection to either House of
Parliament. Equally, Parliament can make law in regard
to either House of the Legislature of a State,
including the preparation of electoral roll. However,
there is a caveat. Article 327 begins with the words
‘subject to the provisions of this Constitutio n’. This
would mean that Article 327 is subject to Article 326.
Therefore, since Article 326 provides for the specific
heads of disqualification in regard to election to the
House of the People and to the Legislative Assembly,
the power to make law under A rticle 327 may not be
available, overcoming the limitation as regards the
grounds of disqualification enumerated in Article 326.
This limitation is found even in Article 328, which
deals with the powers of the State Legislature.
134. Undoubtedly, the Founding Fathers contemplated
conferring the right to participate in elections to the
House of People and the Legislative Assemblies on all
citizens, who were of a certain age. The right was,
however, subject to the condition that they were not
to be disqualified. The disqualifications, again, were,
however, limited to what was contained in Article 326.
The disqualifications, no doubt, were to be expressly
provided by a law to be made by the appropriate
Legislature. The disqualification or rather
qualification incl uded the aspect of residence. Section
20 of the 1950 Act elaborates upon the concept of
residence. Likewise, in the matter of corrupt practices
and other crimes in connection with elections, within
the meaning of Section 16(c) of the 1950 Act, the matter
is to be regulated by the law.
135. Having noticed all the relevant provisions and
bearing in mind the characteristics of a legal right,
we find as follows:
Since every legal right, which would include a
Constitutional Right, [as the Constitution is also law
though the grundnorm and not law for the purpose of
Article 13,] must have a title, we must ascertain
whether a citizen of India, who is not less than
eighteen years, as, on the ‘qualifying date ’, as found
by us, has a right. Since, the title to a legal right
means, “the facts or events, by reason of which, the
rights become vested in its owner”, who is the person
of inherence, we will explore, whether Article 326
contains the facts and reasons and whether it also
contains the content of a Right. In keeping with the
mandate of Article 326, Parliament has made the 1950
Act and the 1951 Act . It is thereafter that the first
general election s were held in the country. It may be
true that the 1950 Act and the 1951 Act h ave been
amended from time to time. At any given point of time,
placing Article 326 side -by-side with the law made by
Parliament or the law made by the State Legislature,
we would find that, if a person is a citizen of India
and not below eighteen years of age, and if he does not
incur the disqualifications, which cannot be more than
what is provided in Article 326, but the content of
which, may be provided by the law made by the competent
Legislature and the citizen not less than eighteen
years does not ha ve the disqualifications, he becomes
entitled to be entered in the electoral roll. Such
person, as is indicated in Article 326, indeed, has a
right, which can be said to be a Constitutional Right ,
which may be right subject to the restriction . Section
62(1) of the 1951 Act, as we have noticed, gives also
the Right to Vote to such a person. Any other
interpretation would whittle down the grand object of
conferring adult suffrage on citizens.
136. The mere fact that for the creation of a Right,
one needs to lean on certain facts, which may consist
of a law, which, in turn, is in the main respects
dictated to by the constitutional provision, may not
detract from the existence of a Right. Article 19
confers fundamental freedoms, which are understood as
Fundamental R ights. The Fundamental Rights can be
regulated by law made under Article 19(2) to Article
19(6). Could it be said that, in view of the power to
regulate the Fundamental Right, no right exists? We are
conscious that in the case of Fundamental Rights under
Article 19, it could be said that the Right exists and
it is only made subject to a law, which may be made.
However, could it be said that whenever a law is made
by Parliament, acting even withi n the boundaries of
Article 326, by amending or adding to the
disqualifications, even if it be limited by the
disqualifications declared in Article 326, that such a
law could be described as falling foul of the
Constitution, as contained in Article 326?
137. Take for instance, a new corrupt practice is added
by law. Would it be vulnerable on the ground that it
takes away the Constitutional right under Article 326?
We would think that it may not. What would be the
position if the Legislature had not provided for any
corrupt practice or a crime as a disqualification. Then
there would be no such disqualification. However, the
appropriate Legislature is also limited in the matter
of the disqualifications by Article 326. In that sense,
it could be said that Article 32 6 provides a
constitutional right, subject to restrictions which the
law provides for, which must finally be traced to its
shores. Section 62(1) of the 1950 Act provides the
fulfilment of the goal of adult suffrage guaranteed in
Article 326. Article 326(3) and Article 326(4) are only
meant to provide against the misuse of the right.
Section 62(2) is clearly reconcilable with Article 326.
Section 62(5) again appears to be a restriction.
138. In regard to Article 326, we may observe, when
the Founding Fathers cl early created a right on the
citizen, who was an adult, (the age was originally 21
years and it was lowered to 18 years), to have his name
entered in the electoral roll unless he has incurred
disqualifications, which, in turn, were limited to
those mention ed in Article 326, they were to be
provided by law. It is clear that a law necessarily had
to be made. The law was, indeed, made as we have noted
by the 1950 and 1951 Acts, providing for the true
contours of the disqualification limited to what was
provided in Article 326. Imagine a situation, if
Parliament had not passed 1950 and 1951 Acts, it would
have led to a situation where the foundational
democratic process of holding elections to the House
of the People and the Legislative Assemblies would have
been rendered impossible. A law had to be made and it
was made. Not making the law would have led to a
constitutional breakdown. We make these remarks to
remind ourselves that treating the Constitution as the
grundnorm, providing the very edifice of the State and
the Legal System, the making of the law by the
Legislative Body, which is a power entrusted to the
Legislative Branch, may come with a duty. A conferment
of legislative power, as is done under Article 245 read
with Article 246 of the Constitution, is not to be
confused with the making of the law under Article 326.
The conferment of a legislative power under Article 245
read with Article 246 is the essential legislative
powers in terms of the separation of power envisaged
broadly under the Constitution.
139. We have noticed that we cannot and we need not
finally pronounce on this aspect, in view of the fact
that a Constitution Bench of this Court, which we have
noticed in Kuldip Nayar (supra) has proceeded to hold
that there is no Constitutional Right.
140. What is important is that the Court noted in
Anukul (supra) that holding of free and fair elections
constitute a basic feature of the Constitution and
approved of the view apparently that the Right to Elect
is fundamental to democracy [See Jyoti Basu (supra)].
141. Even if it is treated as a statutory right, which,
at any rate, cannot be divorced or separated from the
mandate of Article 326, the right is of the greatest
importance and forms the foundation for a free and fair
election, which, in turn, constitutes the right of the
people to elect their representatives. We would for the
purpose of the lis in question rest content to proceed
on the said basis.
142. Dr. B.R. Ambedkar made the following pertinent
observations regarding democracy in the course of his
speech in the Constituent Assembly on 25.11.1949:
“What we must do is not to be content with mere
political de mocracy. We must make our political
democracy a social democracy as well. Political
democracy cannot last unless there lies at the
base of it a social democracy. What does social
democracy mean? It means a way of life which
recognizes liberty, equality and fraternity as
the principles of life. These principles —
liberty, equality and fraternity — are not to
be treated as separate items in a trinity. They
form a union of trinity in the sense that to
divorce one from the other is to defeat the
very purpose of democracy. Liberty cannot be
divorced from equality, equality cannot be
divorced from liberty. Nor can liberty and
equality be divorced from fraternity. Without
equality, liberty would produce the supremacy
of the few over the many. Equality without
liberty would kill individual initiative.
Without fraternity, liberty and equality could
not become a natural course of things. It would
require a constable to enforce them. We must
begin by acknowledging the fact that there is
complete absence of two things in Indian
society. One of these is equality. On the
social plane, we have in India a society based
on the principle of graded inequality, which
means elevation for some and degradation for
others. On the economic plane, we have a
society in which there are s ome who have
immense wealth as against many who live in
abject poverty.
On January 26, 1950, we are going to enter into
a life of contradictions. In politics we will
have equality and in social and economic life
we will have inequality. In politics we will
be recognizing the principle of one man, one
vote and one vote, one val ue. In our social
and economic life we shall, by reason of our
social and economic structure, continue to deny
the principle of one man, one value. How long
shall we continue to live this life of
contradictions? How long shall we continue to
deny equality in our social and economic life?
If we continue to deny it for long, we will do
so only by putting our political democracy in
peril. We must remove this contradiction at the
earliest possible moment or else those who
suffer from inequality will blow up the
structure of political democracy which we have
so laboriously built up.”
143. In Indira Nehru Gandhi Smt. v. Raj Narain and
another 143, this Court adverted to the importance of
elections in a democracy as follows:
“198. … Democracy postulates that there should
be periodical elections, so that people may be
in a position either to re -elect the old
representatives or, if they so choose, to
43 1975 Supp SCC 1
change the representatives and elect in their
place other representatives. Democracy fu rther
contemplates that the elections should be free
and fair, so that the voters may be in a
position to vote for candidates of their
choice. Democracy can indeed function only upon
the faith that elections are free and fair and
not rigged and manipulated , that they are
effective instruments of ascertaining popular
will both in reality and form and are not mere
rituals calculated to generate illusion of
defence to mass opinion. Free and fair
elections require that the candidates and their
agents should not resort to unfair means or
malpractices as may impinge upon the process
of free and fair elections. Even in the absence
of unfair means and malpractices, some times
the result of an election is materially
affected because of the improper rejection of
ballot papers. …”
144. Aharon Barak, President of Supreme Court of Israel
in his book ‘The Judge in a Democracy’ articulates
concepts about democracy succinctly. He says the
following while answering the difficult question as to
what is democracy:
“What is democracy? According to my approach,
democracy is a rich and complex normative
concept. It rests on two bases. The first is
the sovereignty of the people. This sovereignty
is exercised in free elections, held on a
regular basis, in which the people choose their
representatives, who in turn represent their
views. This aspect of democracy is manifested
in majority rule and in the centrality of the
legislative body through which the people’s
representatives act.
This is a formal aspect of democracy. It is of
central importance, since without if the regime
is not democratic.
The second aspect of democracy is reflected in
the rule of values (other than the value of
majority rule) that characterize democracy.
The most important of these values are
separation of powers, the rule of law, judicial
independence, human rights, and basic
principles that reflect yet other values (such
as morality and justice), social objectives
(such as the public peace and security), and
appropriate ways of behavior (reasonab leness,
good faith). This aspect of democracy is the
rule of democratic values. This is a
substantive aspect of democracy. It too is of
central importance. Without it, a regime is not
democratic.
Both aspects, the formal and the substantive,
are necessary for democracy. They are “nuclear
characteristics.” I discussed them in one case,
holding that “these characteristics are based
... upon the recognition of the sovereignty of
the people manifested in free and egalitarian
elections; recognition of the nucle us of human
rights, among them dignity and equality, the
existence of separation of powers, the rule of
law, and an independent judiciary.”
(Emphasis Supplied)
145. He dilates on the qualities that inform a
substantive democracy as follows: -
“Democracy is not satisfied merely by abiding
by proper elections and legislative supremacy.
Democracy has its own internal morality based
on the dignity and equality of all human
beings. Thus, in addition to formal
requirements (elections and the rule of t he
majority), there are also substantive
requirements. These are reflected in the
supremacy of such underlying democratic values
and principles as separation of powers, the
rule of law, and independence of the judiciary.
They are based on such fundamental values as
tolerance, good faith, justice,
reasonableness, and public order. Above all,
democracy cannot exist without the protection
of individual human rights – rights so
essential that they must be insulated from the
power of the majority.
Democracy is not just the law of rules and
legislative supremacy; it is a
multidimensional concept. It requires
recognition of both the power of the majority
and the limitations on that power.”
(Emphasis Supplied)
146. On the topic of Change and Stability and
elaborating on ‘The Dilemma of Change’, the learned
Judge writes: -
“The Dilemma of Change
The need for change presents the judge with a
difficult dilemma, because change sometimes
harms security, certainty, and stability. The
judge must balance the need for change with the
need for stability. Professor Roscoe Pound
expressed this well more than eighty years ago:
“Hence all thinking about law has struggled to
reconcile the conflicting demands of the need
of stability and of the need of change. Law
must be stable and yet it cannot stand still.”
Stability without change is degeneration.
Change without stability is anarchy. The role
of a judge is to help bridge the gap between
the needs of society and the law without
allowing the legal system to degenerate or
collapse i nto anarchy. The judge must ensure
stability with change, and change with
stability. Like the eagle in the sky, which
maintains its stability only when it is moving,
so too is the law stable only when it is moving.
Achieving this goal is very difficult. The life
of the law is complex. It is not mere logic.
It is not mere experience. It is both logic
and experience together. The progress of case
law throughout history must be cautious. The
decision is not between stability or change.
It is a question of the speed of the change.
The decision is not between rigidity or
flexibility. It is ques tion of the degree of
flexibility .”
(Emphasis Supplied)
147. In S.R. Chaudhuri v. State of Punjab and Others ,44,
this Court had to deal with the question whether the
person who was not a Member of the Assembly and who
failed to get himself elected during the period of six
consecutive months, after appointment as Minister,
could be reappointed as Minister without being elected
after the expiry of the period of six consecutive
months. The decision involved the interpretation of
Article 164, and in par ticular, Article 164 (4) of the
Constitution of India. Article 164 reads as follows.
“164. Other provisions as to Ministers . — (1)
The Chief Minister shall be appointed by the
Governor and the other Ministers shall be
appointed by the Governor on the advice of the
Chief Minister, and the Ministers shall hold
office during the pleasure of the Governor:
Provided that in the States of Bihar, Madhya
Pradesh and Orissa, there shall be a Minister
in charge of tribal welfare who may in addition
be in charge of the welfare of the Scheduled
Castes and Backward Classes or any other work.
(2) The Council of Ministers shall be
collectively responsible to the Legislative
Assembly of the State.
(3) Before a Minister enters upon his office,
the Governor shall administer to him the oaths
of office and of secrecy according to the forms
set out for the purpose in the Third Schedule.
(4) A Minister who for any period of six
consecutive months is not a member of the
Legislature of the State shall at the
expiration of that period cease to be a
Minister.
(5) The salaries and allowances of Ministers
shall be such as the Legislature of the State
may from time to time by law determine and,
until the Legislature of the State so
determines, shall be as specified in the Se cond
Schedule.”
A Bench of three Learned Judges of this Court
disapproving of the resort to repeated appointments
without the Minister getting elected held as follows :
“21. Parliamentary democracy generally
envisages ( i) representation of the people ,
(ii) responsible government , and
(iii) accountability of the Council of
Ministers to the Legislature. The essence of
this is to draw a direct line of authority from
the people through the Legislature to the
executive. The character and content of
parliament ary democracy in the ultimate
analysis depends upon the quality of persons
who man the Legislature as representatives of
the people. It is said that “elections are the
barometer of democracy and the contestants the
lifeline of the parliamentary system and its
set-up”.”
“33. Constitutional provisions are required to
be understood and interpreted with an object -
oriented approach. A Constitution must not be
construed in a narrow and pedantic sense. The
words used may be general in terms but, their
full import and true meaning, has to be
appreciated considering the true context in
which the same are used and the purpose which
they seek to achieve. Debates in the
Constituent Assembly referred to in an earlier
part of this judgment clearly indicate that a
non-member's inclusion in the Cabinet was
considered to be a “privilege” that
extends only for six months, during which
period the member must get elected, otherwise
he would cease to be a Minister. It is a settled
position that debates in the Constituent
Assembly may be relied upon as an aid to
interpret a constitutional provision because
it is the function of the court to find out
the intention of the framers of the
Constitution. We must remember that a
Constitution is not just a document in s olemn
form, but a living framework for the Government
of the people exhibiting a sufficient degree
of cohesion and its successful working depends
upon the democratic spirit underlying it being
respected in letter and in spirit. The debates
clearly indicate the “privilege” to extend
“only” for six months .””
(Emphasis supplied)
148. In B.R. Kapur v. State of T.N. and Another ,45
interpreting Article 164 again a Constitution Bench
which also relied upon Constituent Assembly Debates
held that a non -legislator could become a Chief
Minister or Minister under Article 164 only if he had
the qualification for membership of the legislati ve
body and was also not disqualified within the meaning
of Article 191. Of relevance to the cases before us are
the following observations of Justice G.B. Pattanaik
which are as follows: -
“In a democracy, constitutional law reflects
the value that peopl e attach to orderly human
relations, to individual freedom under the law
and to institutions such as Parliament,
political parties, free elections and a free
press.
xxxx xxxx xxxx
The said Constitution occupies the primary
place. Notwithstanding the fact, we have a
written constitution, in course of time, a wide
variety of rules and practices have evolved
which adjust operation of the Constitution to
changing conditions.
xxxx xxxx xxxx
Many important rules of constitutional
behaviour, which are observed by the Prime
Minister and Ministers, members of the
Legislature, Judges and civil servants are
contained neither in Acts nor in judicial
decisions. But such rules have been
nomenclatured by the constitution -writers to
be the rule of “the positive morality of the
constitution” and sometimes the authors
provide the name to be “the unwritten maxims
of the constitution” — rules of constitutional
behaviour, which are considered to be binding
by and upon those who operate the Constitution
but which are not enforced by the law courts
nor by the presiding officers in the House of
Parliament. ”
(Emphasis supplied)
149. In B.P. Singhal v. Union of India and Another46,
dealing with Article 156(1) which declares that a
Governor shall hold office during the pleasure of the
President. This Court held after declaring that the
Governor is not an agent of the ruling party at the
Centre, as follows: -
“71. When a Governor holds office during the
pleasure of the Government and the power to
remove at the pleasure of the President is not
circumscribed by any conditions or
restrictions, it follows that the power is
exercisable at any time, without assigning any
cause. However, there is a distinction between
the need for a cause for the removal, and the
need to disclose the cause for removal. While
the President need not disclose or inform the
cause for his removal to the Governor, it is
imperative that a cause must exis t.”
As regards the Limitations/ Restrictions on the
exercise of removal of Governor, this Court observed as
follows: -
“(iv) Limitations/Restrictions upon the power
under Article 156(1) of the Constitution of
India
48. We may now examine whether there are any
express or implied limitations or restrictions
on the power of removal of Governors under
Article 156(1). We do so keeping in mind the
following words of Holmes, J.:
“… the provisions of the Constitution are not
mathematical formulas having their essence in
their form; they are organic, living
institutions… The significance is vital, nor
formal; it is to be gathered not simply by
taking the words and a dictionary, but by
considering their origin and the line of t heir
growth” (see Gompers v. United States [58 L Ed
1115 : 233 US 604 (1913)] , L Ed p. 1120). ”
(Emphasis supplied)
150. Article 324 is a plenary provision clothing the
Election Commission with the entire responsibility to
hold the National and State elections and carries with
it the necessary powers to discharge its functions.
However, the Commission cannot act against a l aw framed
by Parliament or the State Legislature. The power of
the Commission is also subject to norms of fairness and
it cannot act arbitrarily. The action cannot be mala
fide. Article 324 governs in matters not covered by
legislation. Being a high functi onary who is expected
to function fairly and legally if he does otherwise,
the courts can veto the illegal action ( See Mohinder
Singh Gill and Another v. Chief Election Commissioner,
New Delhi and Others ,47).
151. The Election Commission under Article 324 can
postpone an election on the basis of the opinion that
there existed disturbed conditions in the State or some
area of the State thus making of holding free and fair
election s not possible. The court followed the views
in the Mohinder Singh Gill case (supra ) that democracy
depends on the man as much as on the Constitution [ See
Digvijay Mote v. Union of India and Others48]. The
Election Commission is endowed with the power to
recognise political parties and to decide dispute s
arising among them. It can also adjudicate
controversies between splinter groups within a
political party. The Commission has been found to have
the power to issue the symbols order. This right has
been traced to Article 324 [( See All Party Hill Leaders
Conference Shillong v. Captain W.A. Sangma and Others49,
and Kanhiya Lal Omar v. R.K. Trivedi and Others50)].
152. Recognising the magnitude of the exercise involved
in ensuring free and fair election s, this Court
declared that in case of conflict of opinion between
the Election Commission and the Government, as to the
adequacy of the machinery to deal with the state of law
and order, the assessment of the Election Commission
was to prima facie prevail. This Court, no doubt, also
observed that a mutually acceptable coordinating
machinery may be put in place (see Election Commission
of India v. State of T.N and Others51).
153. While dealing with the power of the Election
Commission to requisition such staff “f or election
duty” and disagreeing with the Commission that it could
requisition the service of the employees of the State
Bank of India, this Court declared that the election
commission did not have untrammelled power. The power
must be traced to the Const itution or a law (see
Election Commission of India v. State Bank of India
Staff Association Local Head Office Unit, Patna and
Others52).
154. The Election Commission has power to issue
directions for the conduct of elections requiring the
political parties to submit the details of the
expenditure incurred or authorised by them for the
purpose of the election of their respective candidates.
This power was traced to the words “conduct of
51 (1995) Suppl. 3 SCC 379
52 (1995) suppl.2 SCC 13
elections” [ See Common Cause (A Registered Society) v.
Union of India and O thers53].
155. All powers though not specifically provided but
necessary for effectively holding the elections are
available to the Election Commission. [ See Election
Commission of India v. Ashok Kumar and Others54].
156. Article 324 is a reservoir of power to be used for
holding free and fair elections. The Commission as a
creature of the Constitution may exercise it in an
infinite variety of situations. In a democracy , the
electoral process plays a strategic role . The
commission can fill up the vacuum by issuing directions
until there is a law made. This was laid down in the
context of directions aimed at securing information
about the candidates [See Union of India v. Association
for Democratic Reforms and Others55].
157. Following a spate of violence in the State of
Gujarat and upon the dissolution of the Assembly, the
Commission took the view that it may not be possible
to hold the election though Article 174(1) mandated
that there shall not be more than six months in bet ween
the last session of the assembly and the first meeting
of the next session. After finding that Article 174 did
not apply to a dissolved assembly as was indeed the
case, this Court reiterated that the words
‘superintendence, control, direction as also ‘the
conduct of all elections’ were the broadest terms. This
court also found that if there is no free and fair
periodic election, it is the end of democracy. [See
(2000) 8 SCC 237]. The said judgment was rendered while
answering a reference made to this C ourt under Article
143 of the Constitution.
158. The Election Commissi on has the power to lay down
a certain benchmark to be achieved by a party in State
politics before it could be recognised as a political
party [See Desiya Murpokku Dravida Kazhagam (DMDK) v .
Election Commission of India and Others56]. Justice J.
Chelameswar wrote a dissenting opinion.
159. While dealing with the aspect of jurisdiction of
the Election Commission under Section 10A of the 1951
Act to ascertain whether there has been a failure to
lodge true , correct and genuine accounts of bona fide
election expenditure and that it did not exceed the
maximum limit, the Election Commission has been found
to have overarching powers and it has been des cribed
as a ‘guardian of democracy ’. In this regard , we notice
the following words of this Court in Ashok Shankarrao
Chavan v. Madhavrao Kinhalkar57 :
“67. In this context, we also keep in mind the
Preamble to the Constitution which in liberal
words states that the People of India having
solemnly resolved to constitute India into a
Sovereign Socialist Secular Democratic
Republic and to secure to all citiz ens justice,
liberty, equality and fraternity. In such a
large democratic country such as ours, if
purity in elections is not maintained, and for
that purpose when the Constitution makers in
their wisdom thought it fit to create an
authority, namely, the E lection Commission and
invested with it the power of superintendence,
control and also to issue directions, it must
be stated that such power invested with the
said constitutional authority should not be a
mere empty formality but an effective and
stable o ne, in whom the citizens of this
country can repose in and look upon to ensure
that such unscrupulous elements and their
attempts to enter into political
administration of this vast country are
scuttled. In that respect, since the ruling of
this vast country is always in the hands of
the elected representatives of the people, the
enormous powers of the Election Commission as
the guardian of democracy should be recognised.
It is unfortunate that those who are really
interested in the welfare of society and who
are incapable of indulging in any such corrupt
practices are virtually side -lined and are
treated as totally ineligible for contesting
the elections. ”
(Emphasis supplied)
160. Under Article 103(2) and Article 192(2), the
President and the Governor are to act on the opinion
of the Election Commission as regards the question of
disqualification of the Member of Parliament and of the
Legislature of a State, respectively . This is the
advisory jurisdiction of the Election Commission. It
exercises vast administrative powers. Further, the
Election Commission discharges quasi -judicial
functions also.
161. Article 329 (b) declares as follows:
“(b) no election to either House of Parliament
or to the House or either House of the
Legislature of a State shall be called in
question except by an election petition
presented to such authority and in such manner
as may be provided for by or under any la w made
by the appropriate Legislature.”
162. Regarding the impact of Article 329(b), a Bench of
three learned judges after an exhaustive review of the
earlier case law has set down the following summary of
conclusions in the case of Election Commission of Ind ia
v. Ashok Kumar58:
“31. The founding fathers of the Constitution
have consciously employed use of the words “no
election shall be called in question” in the
body of Section 329( b) and these words provide
the determinative test for attracting
applicability of Article 329( b). If the
petition presented to the Court “calls in
question an election” the bar of Article 329( b)
is attracted. Else it is not.
32. For convenience sake we would now generally
sum up our conclusions by partly restating what
the two Constitution Benches have already said
and then adding by clarifying what follows
therefrom in view of the analysis made by us
hereinabove:
(1) If an election, (the term election being
widely interpreted so as to include all steps
and entire proceedings commencing from the
date of notification of election till the
date of declaration of result) is to be
called in question and which questioning m ay
have the effect of interrupting, obstructing
or protracting the election proceedings in
any manner, the invoking of judicial remedy
has to be postponed till after the completing
of proceedings in elections.
(2) Any decision sought and rendered will not
amount to “calling in question an election”
if it subserves the progress of the election
and facilitates the completion of the
election. Anything done towards completing or
in furtherance of the election proceedings
cannot be described as questioning t he
election.
(3) Subject to the above, the action taken
or orders issued by Election Commission are
open to judicial review on the well -settled
parameters which enable judicial review of
decisions of statutory bodies such as on a
case of mala fide or arbi trary exercise of
power being made out or the statutory body
being shown to have acted in breach of law.
(4) Without interrupting, obstructing or
delaying the progress of the election
proceedings, judicial intervention is
available if assistance of the co urt has been
sought for merely to correct or smoothen the
progress of the election proceedings, to
remove the obstacles therein, or to preserve
a vital piece of evidence if the same would
be lost or destroyed or rendered
irretrievable by the time the resul ts are
declared and stage is set for invoking the
jurisdiction of the court.
(5) The court must be very circumspect and
act with caution while entertaining any
election dispute though not hit by the bar
of Article 329( b) but brought to it during
the pende ncy of election proceedings. The
court must guard against any attempt at
retarding, interrupting, protracting or
stalling of the election proceedings. Care
has to be taken to see that there is no
attempt to utilise the court's indulgence by
filing a petiti on outwardly innocuous but
essentially a subterfuge or pretext for
achieving an ulterior or hidden end. Needless
to say that in the very nature of the things
the court would act with reluctance and shall
not act, except on a clear and strong case
for its i ntervention having been made out by
raising the pleas with particulars and
precision and supporting the same by
necessary material.
33. These conclusions, however, should not be
construed as a summary of our judgment. These
have to be read along with the earlier part of
our judgment wherein the conclusions have been
elaborately stated with reasons. ”
163. We would , therefore , find that the Election
Commission of India has been charged with the duty and
blessed with extraordinary powers to hold elections to
both Parliament and state legislatures from time to
time. This is an enormous task. The power it possesses
under Article 3 24 is plenary. It is only subject to any
law which may be made by Parliament or by the State
Legislature. Undoubtedly, the Election Commission is
duty bound to act in a fair and legal manner. It must
observe the provisions of the Constitution and abide
by the directions of the Court. The same being done,
it can draw upon a nearly infinite reservoir of power.
Once the poll is notified , [which again is a call to
be taken by the Election Commission itself, and indeed
capable of being misused and the subject o f
considerable controversy, if bias or subservience to
the power s that be, is betrayed], it assumes unusual
powers. Its writ lies across Governments over the
length and breadth of the country. Officers of the
Government who come under its charge become sub ject to
the superintendence of the Commission. The fate of the
political parties and its candidates, and therefore,
of democracy itself to a great measure is allowed to
rest in the hands of the Election Commission. While
there may be officers who assist th e Commission,
vitally important decisions have to be taken by those
at the helm of the affairs. It is the Chief Election
Commissioner and the Election Commissioners at whose
table the buck must stop. It is in this scenario , we
bear in mind that when a deci sion is taken in the
process of the holding of the poll , that subject to
proceedings which are initiated in courts which conduce
to the effective holding of the poll , any proceeding
which seeks to bring the election process under a
shadow is tabooed. The significance of this aspect is
that it adds to the enormity of the powers and
responsibilities of the Election Commission. Awaiting
the outcome of the poll to question the election before
the tribunal may result in many illegal, unfair and
mala fide decision s by the Election Commission passing
muster for the day. Once the election results are out,
the matter is largely reduced to a fait accompli. In
fact, many a time an omission or a delay in taking a
decision can itself be fatal to the holding of a free
and fair poll. The relief vouchsafed in an election
petition may not by itself provide a just solution to
the conduct of election in an illegal, mala fide or
unfair mann er. These observations have a direct
connection with the question with which we are
concerned with , namely, the need to take the
appointment of the members of the Election commission
out of the exclusive hands of the executive, namely,
the party which not unnaturally has an interest in
perpetuating itself in power.
164. The basic and underlying principle central to
democracy is power to the people through the ballot.
Abrahim Lincoln declared democracy to be Government of
the people, by the people and for the people. A
political party or a group or a coalition assumes
reigns of governance. The purpose of achieving power
is to run the Government. No doubt, the Government must
be run in accordanc e with the dictate of the
Constitution and the laws. Political parties not
unnaturally come out with manifesto s containing a
charter of promises they intend to keep. Without
attaining power, men organised as political parties
cannot achieve their goals. Po wer becomes , therefore ,
a means to an end. The goal can only be to govern so
that the lofty aims enshrined in the directive
principles are achieved while observing the fundamental
rights as also the mandate of all the laws. What is
contemplated is a lawfu l Government . So far so good.
What, however, is disturbing and forms as we understand
the substratum of the complaints of the petitioner is
the pollution of the stream or the sullying of the
electoral process which precedes the gaining of power.
Can ends justify the means? There can be no doubt that
the strength of a democracy and its credibility , and
therefore , its enduring nature must depend upon the
means employed to gain power being as fair as the
conduct of the Government after the assumption of powe r
by it. The assumption of power itself through the
electoral process in the democracy cannot and should
not be perceived as an end. The end at any rate cannot
justify the means. The means to gain power in a
democracy must remain wholly pure and abide by t he
Constitution and the laws. An unrelenting abuse of the
electoral process over a period of time is the surest
way to the grave of the democracy. Democracy can
succeed only in so far as all stakeholders
uncompromisingly work at it and the most important
aspect of democracy is the very process, the electoral
process, the purity of which alone will truly reflect
the will of the people so that the fruits of democracy
are truly reaped. The essential hallmark of a genuine
democracy is the transformation of the ‘Ruled’ into a
citizenry clothed with rights which in the case of the
Indian Constitution also consist of Fundamental Rights,
which are also being freely exercised and the
concomitant and radical change of the ruler from an
‘Emperor’ to a public servant. W ith the accumulation
of wealth and emergence of near monopolies or duopolies
and the rise of certain sections in the Media , the
propensity for the electoral process to be afflicted
with the vice of wholly unfair means being overlooked
by those who are the guardians of the rights of the
citizenry as declared by this Court would spell
disastrous consequences.
165. The cardinal importance of a fiercely independent,
honest, competent and fair Election Commission must be
tested on the anvil of the rule of law as also the
grand mandate of equality. We expatiate. Rul e of law
is the very bedrock of a democratic form of governance.
It simply means that men and their affairs are governed
by pre-announced norms. It averts a democratic
Government brought to power by the strength of the
ballot betraying their trust and lap sing into a
Government of caprice, nepotism and finally despotism.
It is the promise of avoidance of these vices which
persuades men to embrace the democratic form of
Government. An Election Commission which does not
ensure free and fair poll as per the ru les of the game,
guarantees the breakdown of the foundation of the rule
of law. Equally, the sterling qualities which we have
described which must be possessed by an Election
Commission is indispensable for an unquestionable
adherence to the guarantee of equality in Article 14.
In the wide spectrum of powers, if the Election
Commission exercises them unfairly or illegally as much
as he refuses to exercise power when such exercise
becomes a duty it has a telling and chilling effect on
the fortunes of the po litical parties. Inequality in
the matter of treatment of political parties who are
otherwise similarly circumstanced unquestionably
breaches the mandate of Article 14. Political parties
must be viewed as organisations representing the hopes
and aspiration s of its constituents , who are citizens .
The electorate are ordinarily, supporters or adherents
of one or the other political parties. We may note that
the recognition of NOTA , by this Court enabling a voter
to express his distrust for all the candidates
exposes the disenchantment with the electoral process
which hardly augurs well for a democracy. Therefore,
any action or omission by the Election Commission in
holding the poll which treats political parties with
an uneven hand , and what is more , in an unfair or
arbitrary manner would be anathema to the mandate of
Article 14 , and therefore , cause its breach. There is
an aspect of a citizen’s right to vote being imbued
with the fundamental freedom under Article 19(1)(a).
The right of the citizen to seek and receive
information about the candidates who should be chosen
by him as his representative has been recognised as a
fundamental right [See Public Interest Foundation
(supra)]. The Election Commissioners including the
Chief Election Commissioner blessed with nearly
infinite powers and who are to abide by the fundamental
rights must be chosen not by the Executive exclusively
and particularly without any objective yardstick.
166. Apart from the 1950 and 1951 Acts, the Code of
Election Rules, 1961 came to be made. In the year 1968 ,
The Election Symbols (Reservation and Allotment) Order,
1968 [hereinafter referred to as, ‘the Symbols Order’]
came to be made by Notification dated 31.08.1968, in
exercise of powers conferred under Article 324 of the
Constitution read with Section 29A of the 1951 Act and
Rules 5 and 10 of the Conduct of Elections R ules. The
Symbols Order deals with allotment and classification
of symbols. Political parties are broadly divided into
recognised political parties or unrecognised political
parties. A recognised party may be a national party or
a state party. Conditions f or recognition of a party
as national party and state party are separately laid
down. Paragraph -15 of the Symbols Order reads as
follows:
“15. Power of Commission in relation to
splinter groups or rival sections of a
recognised political party –
When the Commission is satisfied on information
in its possession that there are rival sections
or groups of a recognised political party each
of whom claims to be that party, the Commission
may, after taking into account all the
available facts and circumstances o f the case
and hearing such representatives of the
sections or groups and other persons as desire
to be heard, decide that one such rival section
or group or none of such rival sections or
groups is that recognised political party and
the decision of the C ommission shall be binding
on all such rival sections or groups .”
167. Paragraph -16 deals with power of the Commission in
case of amalgamation of two political parties.
168. In the very same year, that is 1968, a Model Code
of Conduct also came to be issued. As of date, a large
body of norms, forming part of the Model Code of
Conduct, ha ve been put in place. The Model Code of
Conduct for Guidance of Political Parties and
Candidates provides, inter alia , as follows:
“1. No party or candidate shall include in any
activity which may aggravate existing
differences or create mutual hat red or cause
tension between different castes and
communities, religious or linguistic.
xxx xxx xxx
3. There shall be no appeal to caste or
communal feelings for securing votes. Mosques,
Churches, Temples or other places of worship
shall not be used as forum for election
propaganda.
4. All parties and candidates shall avoid
scrupulously all activities which are “corrupt
practices” and offences under the election law,
such as bribing of voters, intimidation of
voters, impersonation of voters, canvassing
within 100 meters of polling stations, holding
public meetings during the period of 48 hours
ending with the hour fixed for the close of
the poll, and the transport and conveyance of
voters to and from polling station.”
169. Thereafter, it proceeds to deal with meetings,
processions, polling day conduct. In regard to the
party in power, we find the following as part of the
Model Code of Conduct . Part VII of the Model Code of
Conduct, inter alia , reads as follows:
“VII. Party in Power
The party in power whether at the Centre or in
the State or States concerned, shall ensure
that no cause is given for any complaint that
it has used its official position for the
purposes of its election campaign and in
particular –
1. (b) Government transport including official
air-crafts, vehicles, machinery and personnel
shall not be used for furtherance of the
interest of the party in power;
3. Rest houses, dak bungalows or other
Government accommod ation shall not be
monopolized by the party in power or its
candidates and such accommodation shall be
allowed to be used by other parties and
candidates in a fair manner but no party or
candidate shall use or be allowed to use such
accommodation (includin g premises appertaining
thereto) as a campaign office or for holding
any public meeting for the purposes of election
propaganda;
4. Issue of advertisement at the cost of public
exchequer in the newspapers and other media and
the misuse of official mass med ia during the
election period for partisan coverage of
political news and publicity regarding
achievements with a view to furthering the
prospects of the party in power shall be
scrupulously avoided.
5. Ministers and other authorities shall not
sanction gr ants/payments out of discretionary
funds from the time elections are announced by
the Commission; and ”
There are other aspects relating to Election
Manifestos. There is a clear need for a fearless and
independent Election Commission of India to give full
effect to these salutary principles.
170. Paragraph -16A of the Symbols Order inserted by
Notification dated 18.02.1994 , reads as follows:
“16A. Power of Commission to suspend or
withdraw recognition of a recognised political
party for its failure to observe Model Code of
Conduct or follow lawful directions and
instructions of the Commission -
Notwithstanding anything in this Order, if the
Commission is satisfied on information in its
possession that a political party, recognised
either as a National party or as a State party
under the provisions of this Order, has failed
or has refused or is refusing or has shown or
is showing defiance by its conduct or otherwise
(a) to observe the provisions of the ‘Model
Code of Conduct for Guidance of Political
Parties and Candidates’ as issued by the
Commission in January, 1991 or as amended by
it from time to time, or (b) to follow or carry
out the lawful directions and instructions of
the Commission given from time to time with a
view to furthering the conduct of free, fair
and peaceful elections or safeguarding the
interests of the general public and the
electorate in particular, the Commission may,
after taking into account all the available
facts and circumstances of the case and after
giving the party reasonable opportunity of
showing cause in relation to the action
proposed to be taken against it, either
suspend, subject to such terms as the
Commissio n may deem appropriate, or withdraw
the recognition of such party as the National
Party or, as the case may be, the State Party .”
(Emphasis supplied)
171. In Abhiram Singh v. C.D. Commachen (DEAD) by Legal
Representatives and others59, a Bench of seven learned
Judges of this Court had to interpret the word ‘his’
in Section 123 of the Representation of the People Act.
By a 4:3 majority, this Court held that the word ‘his’
in Section 123(3) of the Representation of the People
Act, 1951, for the purpose of maintaining the purity
of the electoral process, must be given a broad and
purposive interpretation so that any appeal made to an
elector by a candidate or his agent or by any other
person with the consent of the candidate or his
election agent, to vote o r refrain from voting, inter
alia, on the grounds of religion and caste, would
constitute a corrupt practice. Dr. T.S. Thakur, C.J.,
wrote a concurring Judgment and we find it apposite to
notice the following passage from his Judgment on the
importance of India being a secular country and about
according any particular religion, special privileges,
being a violation of the basic principles of democracy:
“35. At the outset, we may mention that while
considering the mischief sought to be
suppressed by clauses (2), (3) and (3 -A) of
Section 123 of the Act, this Court observed in
Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdass Mehra [Ziyauddin Burhanuddin Bukhar i
v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17,
decided by a Bench of three learned Judges.]
that the historical, political and
constitutional background of our democratic
set-up needed adverting to. In this context,
it was said that our Constitution -makers
intended a secular democratic republic where
differences should not be permitted to be
exploited . …
62. … Dr Radhakrishnan, the noted
statesman/philosopher had to say about India
being a secular State in the following passage:
“When India is said to be a secular State, it
does not mean that we reject reality of an
unseen spirit or the relevance of religion to
life or that we exalt irreligion. It does not
mean that secularism itself becomes a positive
religion or that the State assumes divine
prerogati ves. Though faith in the Supreme is
the basic principle of the Indian tradition,
the Indian State will not identify itself with
or be controlled by any particular religion.
We hold that no one religion should be given
preferential status, or unique distinc tion,
that no one religion should be accorded special
privileges in national life or international
relations for that would be a violation of the
basic principles of democracy and contrary to
the best interests of religion and
Government. This view of reli gious
impartiality, of comprehension and
forbearance , has a prophetic role to play
within the national and international life. No
group of citizens shall arrogate to itself
rights and privileges, which it denies to
others. No person should suffer any form of
disability or discrimination because of his
religion but all like should be free to share
to the fullest degree in the common life. This
is the basic principle involved in the
separation of church and State .”
(Emphasis supplied) ”
172. The Model Code of Conduct, the views of this Court
about appeal to religion, being a corrupt practice, and
paragraph -16A of the Symbols Order, empowering the
Commission to act in the face of defiance, constitute
a powerful weapon in the hands of an indepen dent and
impartial Election Commission. Placing the exclusive
power to appoint with the Executive, hardly helps.
173. In regard to the Symbols Order, this Court in Shri
Sadiq Ali and another v. Election Commission of India,
New Delhi and others60, upheld the vi res of the Symbols
Order. This Court, inter alia, and held as follows:
“40 … The Commission is an authority created
by the Constitution and according to Article
324, the superintendence, direction and
control of the electoral rolls for and the
conduct of elections to Parliament and to the
Legislature of every State and of ele ctions to
the office of President and Vice -President
shall be vested in the Commission. The fact
that the power of resolving a dispute between
two rival groups for allotment of symbol of a
political party has been vested in such a high
authority would rais e a presumption, though
rebuttable, and provide a guarantee, though not
absolute but to a considerable extent, that the
power would not be misused but would be
exercised in a fair and reasonable manner .”
174. It is further found that when the Commission issues
directions, it d oes so on its own behalf and not as a
delegate of some other Authority. This was on the
construction of Article 324(1).
175. This Court upheld the power of the Election
Commission of India to rescind its Order according
recognition to a political party, even without
elections having been held in all the States in the
country [ See Janata Dal (Samajwadi) v. Election
Commission of India61].
176. In Indian National Congress (I) v. Institute of
Social Welfare and others62, no doubt, this Court took
the view that the Election Commission has not been
conferred with the express power to deregister a
political party registered under Section 29A, on the
ground that it violated the Constitution or any
undertaking given to the El ection Commission at the
time of its registration. This Court went on to hold
also that while exercising its power to register a
political party under Section 29A, the Commission acts
quasi-judicially. The Court also set out the three
exceptional cases whe re the Commission could review its
Order for registering a political party. It includes
obtaining registration by practicing fraud or forgery.
We may notice that under Paragraph -16A of the Symbols
Order, the Commission has been empowered to suspend or
withdraw the recognition of a party as a national or a
state party, after giving a reasonable opportunity. One
of the grounds on which it can be so done is refusal
or defiance, apart from failure to observe the
provisions of the Model Code of Conduct for Guida nce.
Therefore, after 1994, enormous powers have been
conferred on the Election Commission to ensure
compliance with the Model Code of Conduct for Guidance
of Political Parties issued by the Election Commission
in 1991 or as amended by it from time to time . The
power can also be exercise d under Paragraph -16A in
regard to failure or defiance in the matter of
following lawful directions and instructions by the
Commission.
177. In Subramanian Swamy v. Election Commission of
India through its Secretary63, this Court held that the
purpose of making the Symbols Order was to maintain the
purity of elections. The Court highlighted the duty of
the Election Commission to hold free, fair and clean
elections.
178. Paragraph -18 of the Symbols Order reads as follows:
“18. Power of Commission to issue instructions
and directions. The Commission, may issue
instructions and directions -
(a) for the clarification of any of the
provisions of this Order;
(b) for the removal of any difficulty which may
arise in relation to the implementation of any
such provisions; and
(c) in relation to any matter with respect to
the reservation and allotment of symbols and
recognition of political parties, for which
this Order makes no provision or makes
insufficient provision, and provision is in the
opinion of the Commission necessary for the
smooth and orderly conduct of elections.”
179. Dealing with the ambit of paragraph -18, this Court
held, inter alia, in Edapaddi K. Palaniswami v. T.T.V.
Dhinakaran and others64, as follows:
“24. Indeed, allotment of an election symbol
cannot be claimed as a fundamental right as
much as contesting election is not, as observed
in Jyoti Basu v. Debi Ghosal [Jyoti
Basu v. Debi Ghosal , (1982) 1 SCC 691] . It is
a statutory right. It is also well se ttled that
the Election Commission has plenary powers and
could exercise the same to ensure free and fair
elections. Clause 18 of the Symbols Order
predicates the facet of such plenary power to
be exercised by the Election Commission. Clause
18 reads thus :
“18. Power of Commission to issue instructions
and directions .—The Commission, may issue
instructions and directions —
(a) for the clarification of any of the
provisions of this Order;
(b) for the removal of any difficulty which may
arise in relation to the implementation of any
such provisions; and
(c) in relation to any matter with respect to
the reservation and allotment of symbols and
recognition of political parties, for which
this Order makes no provision or makes
insufficient provision, and provis ion is in the
opinion of the Commission necessary for the
smooth and orderly conduct of elections.”
25. The Election Commission in the past has
exercised plenary powers under Para 18 for
issuing interim directions regarding
allocation of common symbols to the two
factions, when the dispute under the Symbols
Order was still pending before it. It was
argued that the Election Commission cannot do
so once it had finally decided the dispute.
There is no difficulty in agreeing with the
proposition that once the dispute had been
finally decided by ECI, the question of
invoking powers under Para 18 by it (ECI) would
not arise. However, if the dispute is pending
enquiry before ECI or the final decision of ECI
is sub judice in the proceedings before the
constitutiona l court, providing for an
equitable arrangement in the interests of free
and fair elections and to provide equal level
playing field to all concerned, would be a just
and fair arrangement. ”
180. The above observations indicate the width of the
powers available to the Election Commission.
181. In Public Interest Foundation and others v. Union
of India and others65, a Constitution Bench was invited
but refused to add or prescribe disqualifications for
contesting the elections other than what was prescribed
by the Constitution and the Parliament. In this regard,
an appeal made to the existence of plenary power under
Article 324 did not pass muster. The attempt was to
persuade the Court to direct the Election Commission
to disallow a candidate from contesting on the ground
that charges have been framed for heinous and/or
grievous offences. It was found that the Parliament had
the exclusive legislative power to lay down the
disqualifications for the membership of the Legislative
Body. It is apposite t hat we, however, notice the
following:
“28. An essential component of a
constitutional democracy is its ability to give
and secure for its citizenry a representative
form of government, elected freely and fairly,
and comprising of a polity whose members are
men and women of high integrity and morality.
This could be said to be the hallmark of any
free and fair democracy.”
182. This Court, thereafter, quoted from the Goswam i
Committee on Electoral Reforms, wherein the Committee
bemoaned the role of money and muscle power at
elections and rapid criminalisation of politics,
greatly encouraging evils of booth capturing, rigging
and violence. It is important that we notice paragraph -
“30. Criminalisation of politics was never an
unknown phenomenon in the Indian political
system, but its presence was seemingly felt in
its strongest form during the 1993 Mumbai bomb
blasts which was the result of a collaboration
of a diffused network of criminal gangs, police
and customs officials and their political
patrons. The tremors of the said attacks shook
the entire nation and as a result of the
outcry, a commission was constituted to study
the problem of criminalisation of politics and
the nexus among criminals, politicians and
bureaucrats in India. The report of the
Committee, Vohra Committee Report, submitted
by Union Home Secretary, N.N. Vohra, in October
1993, referred to several observations made by
official agencies, including Central Bureau of
Investigation, Intelligence Bureau, Research
and Analysis Wing, w ho unanimously expressed
their opinion on the criminal network which was
virtually running a parallel government. The
Committee also took note of the criminal gangs
who carried out their activities under the
aegis of various political parties and
governmen t functionaries. The Committee
further expressed great concern regarding the
fact that over the past few years, several
criminals had been elected to local bodies,
State Assemblies and Parliament. The Report
observed:
“3.2. … In the bigger cities, the mai n source
of income relates to real estate — forcibly
occupying lands/buildings, procuring such
properties at cheap rates by forcing out the
existing occupants/tenants etc. Over time, the
money power thus acquired is used for building
up contacts with burea ucrats and politicians
and expansion of activities with impunity. The
money power is used to develop a network of
muscle-power which is also used by the
politicians during elections.”
And again:
“3.3. … The nexus between the criminal gangs,
police, burea ucracy and politicians has come
out clearly in various parts of the country.
The existing criminal justice system, which was
essentially designed to deal with the
individual offences/crimes, is unable to deal
with the activities of the mafia; the
provision s of law in regard economic offences
are weak…”
183. We are tempted to quote the following observations
by Shri C. Rajagopalachari, made way back in 1922,
which has been referred to by the Constitution Bench
in Public Interest Foundation (supra):
“… ‘Elections and their corruption, injustice
and tyranny of wealth, and inefficiency of
administration, will make a hell of life as
soon as freedom is given to us ….’””
184. The Court, in Public Interest Foundation (supra),
elaborately quoted from the Two Hundred and Forty -
Fourth Report of the Law Commission of India on
Electoral Disqualifications. This Court also
reiterated the role and, thereafter, the powers of the
Election Commission. The Court went on to observe that:
“115. …The best available people, as is
expected by the democratic system, should not
have criminal antecedents and the voters have
a right to know about their antecedents, assets
and other aspects. We are inclined to say so,
for in a constitutional democra cy,
criminalisation of politics is an extremely
disastrous and lamentable situation. The
citizens in a democracy cannot be compelled to
stand as silent, deaf and mute spectators to
corruption by projecting themselves as
helpless. The voters cannot be allow ed to
resign to their fate. The information given by
a candidate must express everything that is
warranted by the Election Commission as per
law. Disclosure of antecedents makes the
election a fair one and the exercise of the
right of voting by the elector ate also gets
sanctified. …”
185. Thereafter, the Constitution Bench went on to hold
as follows:
“116. Keeping the aforesaid in view, we think
it appropriate to issue the following
directions which are in accord with the
decisions of this Court:
116.1. Each contesting candidate shall fill up
the form as provided by the Election Commission
and the form must contain all the particulars
as required therein.
116.2. It shall state, in bold letters, with
regard to the criminal cases pending against
the candidate.
116.3. If a candidate is contesting an election
on the ticket of a particular party, he/she is
required to inform the party about the criminal
cases pending against him/her.
116.4. The political party concerned shall be
obligated to put up on its website the
aforesaid information pertaining to candidates
having criminal antecedents.
116.5. The candidate as well as the political
party concerned shall issue a declaration in
the widely circulated newspapers in the
locality about the antecedents of the candidate
and also give wide publicity in the electronic
media. When we say wide publicity, we mean that
the same shall be done at least thrice after
filing of the nomination papers.
117. These directions ought to be implemented
in true spirit and right earnestness in a bid
to strengthen the democratic set -up. There may
be certain gaps or lacunae in a law or
legislative enactment which can definitely be
addressed by the legislature if it is backed
by the proper intent, strong resolve and
determined will of right -thinking minds to
ameliorate the situation. It must also be borne
in mind that the law cannot always be found
fault with for the lack of its stringent
implementation by the authorities concerned.
Therefore, it is the solemn responsibility of
all concerned to enforce the law as well as
the directions laid down by this Court from
time to time in order to infuse the culture of
purity in politics and in democracy and foster
and nurture an informed citizenry, for
ultimately it is the citizenry whic h decides
the fate and course of politics in a nation
and thereby ensures that “we shall be governed
no better than we deserve”, and thus, complete
information about the criminal antecedents of
the candidates forms the bedrock of wise
decision -making and i nformed choice by the
citizenry. Be it clearly stated that informed
choice is the cornerstone to have a pure and
strong democracy.
118. We have issued the aforesaid directions
with immense anguish, for the Election
Commission cannot deny a candidate to co ntest
on the symbol of a party. A time has come that
Parliament must make law to ensure that persons
facing serious criminal cases do not enter into
the political stream. It is one thing to take
cover under the presumption of innocence of the
accused but i t is equally imperative that
persons who enter public life and participate
in law making should be above any kind of
serious criminal allegation. It is true that
false cases are foisted on prospective
candidates, but the same can be addressed by
Parliament through appropriate legislation.
The nation eagerly waits for such legislation,
for the society has a legitimate expectation
to be governed by proper constitutional
governance. The voters cry for systematic
sustenance of constitutionalism. The country
feels agonised when money and muscle power
become the supreme power. Substantial efforts
have to be undertaken to cleanse the polluted
stream of politics by prohibiting people with
criminal antecedents so that they do not even
conceive of the idea of entering into politics.
They should be kept at bay. ”
It would appear that the grant of relief would have
resulted in the rewriting of the provision.
186. What is independence? Independence is a value,
which is only one of the elements in the amalgam of
virtues that a person should possess. The competence
of a man is not to be conflated with fierce
independence. A person may be excellent, i.e., at his
chosen vocation. He may be an excellent Administrator.
He may be honest but the quality of independence
transcends the contours of the qualities of
professional excellence, as also the dictates of
honesty. We may, no doubt, clarify that, ordinarily,
honesty woul d embrace the quality of courage of
conviction, flowing from the perception of what is
right and what is wrong. Irrespective of consequences
to the individual, an honest person would, ordinarily,
unrelentingly take on the high and mighty and persevere
in the righteous path. An Election Commissioner is
answerable to the Nation. The people of the country
look forward to him so that democracy is always
preserved and fostered. We may qualify the above
observations by stating that true independence of a
Body of persons is not to be confused with sheer
unilateralism. This means that the Election Commission
must act within the Constitutional framework and the
laws. It cannot transgress the mandate of either and
still claim to be independent. Riding on the horse of
independence, it cannot act in an unfair manner either.
Independence must be related, finally, to the question
of ‘what is right and what is wrong’. A person, who is
weak kneed before the powers that be, cannot be
appointed as an Election Commissioner. A p erson, who
is in a state of obligation or feels indebted to the
one who appointed him, fails the nation and can have
no place in the conduct of elections, forming the very
foundation of the democracy. An independent person
cannot be biased. Holding the sca les evenly, even in
the stormiest of times, not being servile to the
powerful, but coming to the rescue of the weak and the
wronged, who are otherwise in the right, would qualify
as true independence. Upholding the constitutional
values, which are, in fact , a part of the Basic
Structure, and which includes, democracy, the Rule of
Law, the Right to Equality, secularism and the purity
of elections otherwise, would, indeed, proclaim the
presence of independence. Independence must embrace the
ability to be firm , even as against the highest. Not
unnaturally, uncompromising fearlessness will mark an
independent person from those who put all they hold
dear before their Karma. It is in this context that we
feel advised to refer to the following discussion in
Supreme Court Advocates -on-Record Assn. and another v.
Union of India66:
“310. A little personal research resulted in
the revelation of the concept of the
“legitimate power of reciprocity” debated by
Bertram Raven in his article — “The Bases of
Power and the Power/Interaction Model of
Interpersonal Influence ” (this article
appeared in Analyses of Social Issues and
Public Policy , Vol. 8, No. 1, 2008, pp. 1 -22).
In addition to having dealt with various
psychological reasons which influenced the
personality of an individual, reference was
also made to the “legitimate power of
reciprocity”. It was pointed out that the
reciprocity norm envisaged that if someone does
something beneficial for another, the
recipient would feel an obligation to
reciprocate (“I helped yo u when you needed it,
so you should feel obliged to do this for me.”
— Goranson and Berkowitz, 1966; Gouldner,
1960). In the view expressed by the author, the
inherent need of power is universally available
in the subconscious of the individual. On the
satisfaction and achievement of the desired
power, there is a similar unconscious desire
to reciprocate the favour.”
It is important that the appointment must not be
overshadowed by even a perception, that a ‘yes man’
will decide the fate of democracy and al l that it
promises. Certainty, the darkest apprehensions of the
founding fathers as buttressed by the reports and other
materials, unerringly point to the imperative need to
act.
187. An application was filed by the petitioner in W.P.
No. 569 of 2021 to seek interim relief to provide for
appointment to fill a vacancy of Election Commissioner
which had arisen on 15.05.2022 by a Committee . The
Bench commenced hearing of these cases on 17.11.2022.
The matter stood posted to 22.11.2022. It would appear
that on 18.11.2022, the vacancy of Election
Commissioner came to be filled up by the appointment
of one Shri Arun Goel. This appointment was a ttacked
by Shri Prashant Bhushan, learned Counsel appearing for
the petitioner, by contending that when the petitioner
had moved an application, seeking interim relief
relating to appointment, it was not open to the
respondent -Union to make the appointment . This Court
thereupon called upon the respondent to produce the
files relating to the appointment. We perused the note
as also the file. It is therein, inter alia, stated
that a vacancy in the post of Election Commissioner
arose upon the appointment of Sh ri Rajiv Kumar as the
Chief Election Commissioner w.e.f. 15.05.2022. No
specific law has been made under Article 324. A
convention is put forward, which consisted of
appointing senior Members of the Civil Services, other
serving or retired Officers of the rank of Secretary
to the Government of India/Chief Secretary of State
Government. The convention further comprised of the
appointment of the senior -most Election Commissioner
as the Chief Election Commissioner so far. We found,
undoubtedly, from the perusa l of the files that the
respondent was aware of the pendency of Writ Petition
(Civil) No. 104 of 2015 apart from the other Writ
Petitions. The appointment has been made apparently on
the basis that there was no hinderance to the making
of the appointment. Approval was sought on 18.11.2022
for the appointment of one Election Commissioner. On
the very same day, drawing upon the database of IAS
Officers, serving and retired, in the position of
Secretary to the Government of India, it was accessed.
We found fou r names, which included at the top of the
list, the present appointee. Three other names were
also considered by the Minister of Law and Justice. One
of the Officers was from Andhra Pradesh and belonged
to the 1983 Batch. The third Officer empanelled
belonged to the Telangana State and he belonged to the
1983 Batch and the fourth Officer belonged to the Tamil
Nadu cadre and belonged to the 1985 Batch. The present
appointee belonged to the Punjab Cadre and was of the
1985 Batch. On the same day, i.e., on 18. 11.2022, a
Note was seen put -up, wherein the Law Minister ha d
suggested the panel of four names for the consideration
of the Prime Minister and the President. Therein also,
the absence of a law and the convention, which we have
already referred to, has bee n noted. We further find
that three of the Officers mentioned had superannuated
during the last two years or so. The appointee, it was
noted was to superannuate in the month of December,
2022 and had taken voluntary retirement, was found to
be the youngest of the four Members of the panel. It
was recommended to the Prime Minister that considering
his experience, age , profile and suitability, the
current appointee may be considered. On the very same
day again, the Prime Minister recommended the name of
the present appointee. We notice further that, on the
same day again, an application is seen made by the
appointee in regard to voluntary retirement and
accepting the same, again, w.e.f., 18.11.2022, and
waiving the three months period required for acting on
the request of voluntary retirement, the Officer’s
request for voluntary retirement came to be accepted
by the Competent Authority. Not coming as a surprise,
on the same day, his appointment as Election
Commissioner was also notified. We are a little
mystified as to how the officer had applied for
voluntary retirement on 18.11.2022, if he was not in
the know about the proposal to appoint him. Whether
that be, we notice that 18.11.2022 was a Friday and
very next day, after the Court had directed the case
to be listed to 22.11.2022, for considering the matter.
188. In regard to this appointment, the salient features
may be noticed. The vacancy was subsisting from
15.05.2022. The Constitution Bench held a preliminary
hearing on 17.11.2022. It was while so on the next day,
i.e., 18.11.2022, when an interim application was also
pending consideration, all the procedures commencing
with the proposal, processing of the same at the hands
of the Minister for Law, the further recommendations
of the concerned Officers, the rec ommendation of the
Prime Minister, the acceptance of the application of
the appointee seeking voluntary retirement, waiving the
three months period and the appointment by the
President under Article 324(2), which came to be
notified, took place in a single day. No doubt, there
was no interim Order, restraining such appointment but,
at the same time, I.A. No. 63145 of 2021 in Writ
Petition (Civil) No. 569 of 2021, seeking a direction
to make appointment to the vacant post by an
independent Body, was pending consideration. Shri
Prashant Bhushan would seek the invalidation of the
appointment itself on the said score.
189. Since the Constitution Bench has been constituted
to consider the need for a different method of
appointment of the Chief Election Commissioner and the
Election Commissioners, the procedure involved in the
appointment as has been followed throws up certain
pertinent questions. Appointment is, admittedly, made
from a panel of Senior Civil Servants, both retired and
serving. Learned Attorney General would contend that
the appointment is made from a panel of Officers. The
current appointee was due to retire on 31.12.2022. From
the date of birth of the other three persons, who formed
the panel, we find that one of the persons had
superannuated, apparently, in the year 2020. Another
Officer, whose name figured in the panel had also
superannuated in the year 2020. The only other Officer,
who was considered with the appointee, had also
superannuated in the year 2020. As on 18.11.2022, if
any of the three were considered and appointed, they
would have had a tenure of less than three years. This
is for the reason that , under Section 4 of the 1991
Act, an Election Commissioner is entitled to a term of
six years, subject, however, to the condition that the
Officer would have to vacate the Office upon his
reaching the age of 65 years. In fact, even the
appointed Officer w as due to retire on 31.12.2022, at
the age of sixty years. He would have a term of a little
over five years, on the basis of the appointment made
on 18.11.2022. He would be appointed not as a Chief
Election Commissioner but as an Election Commissioner.
Both the Chief Election Commissioner and the Election
Commissioner, as per Section 4 of the 1991 Act, are to
be appointed for a term of six years.
190. This brought up the question of Section 4,
declaring a fixed term of six years from the date of
assumption of Of fice, for a Chief Election Commissioner
and an Election Commissioner, being observed in its
breach. The learned Attorney General would respond as
follows. He pointed out that since the time, when the
Election Commission became a multi -Member team, a
convention has grown up of making appointments of
persons, initially as Election Commissioners and the
senior-most Election Commissioner, unless considered
unfit, is appointed as the Chief Election Commissioner.
As far as Section 4, declaring that the Chief Elec tion
Commissioner and the Election Commissioner are to be
appointed for a term of six years and the appointments
falling foul of the said mandate, the learned Attorney
General would point out that the term of the Election
Commissioner and the term as Chief Election
Commissioner, for those who are appointed as the Chief
Election Commissioner, is aggregated. In view of the
first proviso to Section 4 of the 1991 Act, a shortfall,
in terms of the six years stint, may occur. But it is
pointed out that as far as possible, appointments are
being made so as to fulfil the requirements of the law.
In view of the operation of the proviso, resulting in
a compulsory and premature vacating of the Office by
the incumbent on attaining the age of 65 years, the
term may not l ast for the full six years, even on the
combination of the two appointments, viz., firstly as
Election Commissioner and later as Chief Election
Commissioner. The learned Attorney General would point
out that this Court should not be detained by the said
aspect, when the question, which this Court is
concerned with, is different. As far as the criticism
launched, both by Shri Prashant Bhushan and Shri Gopal
Sankaranarayanan, that the panel which was considered,
betrayed sheer arbitrariness and reinforced the
grievance and the complaint of the Writ Petitioners
that an undeniable case is made out for this Court to
step in and grant relief so that a fair procedure for
selection and appointment is laid down, till a law is
made by the Parliament, the learned Attor ney General
would point out that Civil Servants or IAS Officers are
by dint of the experience gathered in the course of
their careers, ideally suited for appointment as
Election Commissioners and Chief Election
Commissioners. They have experience in the ma tter of
the conduct of the elections at different stages of
their career. They operate as observers in States other
than their cadre States. The Election Commission is not
to be conflated with the Chief Election Commissioner
and the Election Commissioners. The Commission
functions as a large team. It is in this regard that
Officers of the Civil Services are impeccably poised
for being considered under Article 324(2), it is
pointed out.
191. The learned Attorney General would point out that
that the panel of Offi cers, is born out of the database
of serving and retired IAS Officers in the position of
Secretaries to the Government of India.
192. When it was pointed out that it remained a mystery
to the Court that incongruous with the unambiguous
mandate of Section 4 of t he 1991 Act, all the panellists
were either retired (3 out of four) and the person
finally appointed was himself appointed, when he had
less than a month for his 60th birthday, it was
submitted that the Court must bear in mind that the
panel was drawn up f rom the database of Officers in the
rank of Secretaries to the Government of India, both
serving and retired, and drawn up by the Ministry of
Law and Justice. When it was further queried as to why
the respondent did not appear to exhibit any anxiety
to ascertain whether there were Officers, who could be
appointed who would be assured the full term of six
years, in keeping with the mandate of law, it was
submitted that there is a dearth of such Officers.
193. Thereupon, it was the contention of both Shri
Prashant Bhushan and Shri Gopal Shankaranarayan that
this may not be the case. It is pointed out by Shri
Prashant Bhushan that there are 160 Officers, who
belonged to the 1985 Batch and some of them are younger
than Shri Arun Goel.
194. We have noted that the three O fficers in the panel
were described and edged out, noting the factum of
superannuation. On the said basis, it was found that
the appointee was the youngest. Thereafter on the basis
of his experience, age and suitability, the appointee
was recommended and f inally appointed.
195. If the drawing up of the panel itself results in a
fate accompli, then, the whole exercise would be
reduced to a foregone conclusion as to who would be
finally appointed. What we find about the method
involved is, even proceeding on the basis that the
Government has the right to confine the appointee to
Civil Servants, that it is in clear breach of the
contemplated mandate that be it as an Election
Commissioner or Chief Election Commissioner, the
appointee should have a period of six year s. The
philosophy behind giving a reasonably long stint to the
appointee to the post of Election Commissioner or the
Chief Election Commissioner, is that it would enable
the Officer to have enough time to gear himself to the
needs of the Office and to be a ble to assert his
independence. An assured term would instil in the
appointee, the inspiration and the will to put in place
any reforms, changes, as also the inspiration to bring
out his best. A short -lived stint may drain the much -
needed desire besides th e time to fulfil the sublime
objects of the high Office of the Election Commissioner
or the Chief Election Commissioner. Any tendency
towards placating the powers that be, would wax as also
the power and the will to assert his independence may
wane, bearin g in mind, the short tenure. This
apparently is the underlying philosophy of the law made
by Parliament, assuring, a term of six years. The term
of six years is separately assured to both the Election
Commissioner and the Chief Election Commissioner. In
other words, the object of the law and its command
would stand defeated and the practice lends strength
to the complaint of the petitioners. We must make it
clear that the observations are not meant to be an
individualised assessment of the appointee, who we do
note, has excellent academic qualifications. But as we
have noted academic excellence which members of the
civil service may possess cannot be a substitute for
values such as independence and freedom from bias from
political affiliation. We draw the fo llowing
conclusions:
Parliament enshrined a term of six years separately
for the Chief Election Commissioner and the Election
Commissioner. This is the Rule, it is found in Section
4(1). A proviso cannot arrogate itself to the status
of the main provision. The exception cannot become the
Rule. Yet, this what the appointments have been reduced
to. It undermines the independence of the Election
Commission. The policy of the law is defeated.
196. When Article 324(2) provides that the appointment
of the Chief Election Commissioner and the other
Election Commissioners shall, subject to the provisions
of any law, made in that beh alf by Parliament, be made
by the President, in view of Article 74, it would,
undoubtedly, mean that the President is bound to make
appointments in accordance with the advice of the
Council of Ministers. Taking into consideration Article
77 also and, in vi ew of the Rules of Business made,
which we have referred to in para graph 51 of this
Judgment , the appointment, till a law is made by
Parliament, would be made by the President in
accordance with advice of the Prime Minister. It was
precisely such an appointment, which was the cause of
unanimous concern to the Members of the Constituent
Assembly, which we have already adverted to.
197. The petitioners placed considerable reliance on
the Judgment of this Court rendered in Vineet Narain
and others v. Union of India and another67. No doubt,
it is a case where the Court, inter alia , held as
follows:
“49. There are ample powers conferred by
Article 32 read with Article 142 to make orders
which have the effect of law by virtue of
Article 141 and there is mandate to all
authorities to act in aid of the orders of this
Court as provided in Article 144 of t he
Constitution. In a catena of decisions of this
Court, this power has been recognised and
exercised, if need be, by issuing necessary
directions to fill the vacuum till such time
the legislature steps in to cover the gap or
the executive discharges its r ole. It is in the
discharge of this duty that the IRC was
constituted by the Government of India with a
view to obtain its recommendations after an in -
depth study of the problem in order to
implement them by suitable executive
directions till proper legisl ation is enacted.
The report of the IRC has been given to the
Government of India but because of certain
difficulties in the present context, no further
action by the executive has been possible. The
study having been made by a Committee
considered by the Government of India itself
as an expert body, it is safe to act on the
recommendations of the IRC to formulate the
directions of this Court, to the extent they
are of assistance. In the remaining area, on
the basis of the study of the IRC and its
recommend ations, suitable directions can be
formulated to fill the entire vacuum. This is
the exercise we propose to perform in the
present case since this exercise can no longer
be delayed. It is essential and indeed the
constitutional obligation of this Court und er
the aforesaid provisions to issue the necessary
directions in this behalf. We now consider
formulation of the needed directions in the
performance of this obligation. The directions
issued herein for strict compliance are to
operate till such time as th ey are replaced by
suitable legislation in this behalf.”
198. We must, at once, notice, however, that this Court
has also held as follows:
“51. In exercise of the powers of this Court
under Article 32 read with Article 142,
guidelines and directions have been issued in
a large number of cases and a brief reference
to a few of them is sufficient. In Erach Sam
Kanga v. Union of India [ WP No. 2632 of 1978
decided on 20 -3-1979] the Constitution Bench
laid down certain guidelines relating to the
Emigration Act. In Lakshmi Kant
Pandey v. Union of India [(1984) 2 SCC
244] (In re, Foreign Adoption) , guidelines for
adoption of minor children by foreigners were
laid down. Similarly in State of
W.B. v. Sampat Lal [(1985) 1 SCC 317 : 1985 SCC
Veeraswami v. Union of India [(1991) 3 SCC 655
: 1991 SCC (Cri) 734] , Union Carbide
Corpn. v. Union of India [(1991) 4 SCC 584]
, Delhi Judicial Service Assn. v. State of
Gujarat [(1991) 4 SCC 406] (Nadiad
case), Delhi Development A uthority v. Skipper
Construction Co. (P) Ltd. [(1996) 4 SCC 622]
and Dinesh Trivedi, M.P. v. Union of
India [(1997) 4 SCC 306] guidelines were laid
down having the effect of law, requiring rigid
compliance. In Supreme Court Advocates -on-
Record Assn. v. Union of India [(1993) 4 SCC
441] (IInd Judges case) a nine-Judge Bench
laid down guidelines and norms for the
appointment and transfer of Judges which are
being rigidly followed in the matter of
appointments of High Court and Supreme Court
Judges and transfe r of High Court Judges. More
recently in Vishaka v. State of
Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri)
932] elaborate guidelines have been laid down
for observance in workplaces relating to sexual
harassment of working women.
In Vishaka [(1997) 6 SCC 24 1 : 1997 SCC (Cri)
932] it was said: (SCC pp. 249 -50, para 11)
“11. The obligation of this Court under Article
32 of the Constitution for the enforcement of
these fundamental rights in the absence of
legislation must be viewed along with the role
of judic iary envisaged in the Beijing Statement
of Principles of the Independence of the
Judiciary in the LAWASIA region. These
principles were accepted by the Chief Justices
of Asia and the Pacific at Beijing in 1995 (*)
(As amended at Manila, 28th August, 1997 ) as
those representing the minimum standards
necessary to be observed in order to maintain
the independence and effective functioning of
the judiciary. The objectives of the judiciary
mentioned in the Beijing Statement are:
“Objectives of the Judiciary :
10. The objectives and functions of the
Judiciary include the following:
(a) to ensure that all persons are able to live
securely under the rule of law;
(b) to promote, within the proper limits of the
judicial function, the observance and the
attainment of human rights; and
(c) to administer the law impartially among
persons and between persons and the State.”
Thus, an exercise of this kind by the court is
now a well -settled practice which has taken
firm roots in our constitutional
jurispruden ce. This exercise is essential to
fill the void in the absence of suitable
legislation to cover the field.”
199. It, therefore, becomes necessary for us to
undertake a journey back in time to recapture the view s
taken by this Court, which has been referred to in
paragraph -51. In Lakshmi Kant Pandey v. Union of
India68, this Court was dealing a public interest
litigation lodged against malpractices in trafficking
of children in connection with adoption of Indian
children by foreigners living abroad. The Court noted
from the legislative history that though Bills were
introduced, including the Adoption of Children Bill,
1980, besides the earlier Bill in 1972, it had no t
attained a legislative effect. The Court found that
inter-country adoption had to be supported but great
care ha d to be exercised in the matter of giving
children in adoption to foreign parents. The Court
referred to, inter alia , the draft Declaration by the
Commission for Social Development at its twenty -sixth
session, besides the guidelines and draft guidelines,
which were approved on 04.09.1982. The Court notes , at
paragraph -10, the absence of a law providing for
adoption of an Indian child by the fore ign parent.
Thereafter, it elaborated on the materials available
and finally proceeded to lay down certain principles
and norms which were to be observed in the matter of
giving a child in adoption to foreign parents.
200. In Union Carbide Corporation and othe rs. v. Union
of India and others69, one of the questions, which fell
for consideration was whether the Supreme Court had the
power under Article 142 to withdraw to itself, Original
Suits pending in the District Court at Bhopal and
dispose of the same in accordance with the settlement.
Similarly, the Court had to deal with the contention
that it had no jurisdiction to withdraw the criminal
proceedings. This is what, inter alia , the Court held:
“58. This Court had occasion to point out that
Article 136 is worded in the widest terms
possible. It vests in the Supreme Court a
plenary jurisdiction in the matter of
entertaining and hearing of appeals by granting
special leave against any kind of judgment or
order made by a Court or Tribunal in any cause
or matter and the powers can be exercised in
spite of the limitations under the specific
provisions for appeal contained in the
Constitution or other laws. The powers given
by Article 136 are, however, in the nature of
special or residuary powers which are
exercisable outside the purview of the ordi nary
laws in cases where the needs of justice demand
interference by the Supreme Court. (See Durga
Shankar Mehta v. Thakur Raghuraj Singh [(1955)
xxx xxx xxx
61. To the extent power of withdrawal and
transfer of cases to the apex Court is, in the
opinion of the Court, necessary for the purpose
of effectuating the high purpose of Articles
136 and 142(1), the power under Article 139 -A
must be held not to exhaust the power of
withdrawal and transfer. Article 139 -A, it is
relevant to mention here, was introduced as
part of the scheme of the Constitution Forty -
second Amendment. That amendment proposed to
invest the Supreme Court with exclusive
jurisdiction to determi ne the constitutional
validity of central laws by inserting Articles
131-A, 139-A and 144 -A. But Articles 131 -A and
144-A were omitted by the Forty -third Amendment
Act, 1977, leaving Article 139 -A intact. That
article enables the litigants to approach the
apex Court for transfer of proceedings if the
conditions envisaged in that article are
satisfied. Article 139 -A was not intended, nor
does it operate, to whittle down the existing
wide powers under Articles 136 and 142 of the
Constitution. ”
201. In Delhi Judic ial Service Association, Tis Hazari
Court, Delhi v. State of Gujarat and others70, the
question arose in the following factual context:
Police Officer s assaulted and arrested on flimsy
grounds and handcuff ed and tied with a rope, a Chief
Judicial Magistrate. The scope of the Criminal Contempt
Jurisdiction fell for consideration. This Court wished
to provide against the recurrence of such instances.
The Court directed the State Government to take
immediate steps for review and revision of the Police
Regulations. In the light of the Commission appointed,
the Court held, inter alia, as follows:
“49. Learned counsel, appearing on behalf of
the State of Gujara t and the police officers,
urged that in the present proceedings this
Court has no jurisdiction or power to quash the
criminal proceedings pending against N.L.
Patel, CJM. Elaborating his contention,
learned counsel submitted that once a criminal
case is r egistered against a person the law
requires that the court should allow the case
to proceed to its normal conclusion and there
should be no interference with the process of
trial. He further urged that this Court has no
power to quash a trial pending befor e the
criminal court either under the Code of
Criminal Procedure or under the Constitution,
therefore, the criminal proceedings pending
against Patel should be permitted to continue.
Learned Attorney General submitted that since
this Court has taken cogniz ance of the contempt
matter arising out of the incident which is the
subject matter of trial before the criminal
court, this Court has ample power under Article
142 of the Constitution to pass any order
necessary to do justice and to prevent abuse
of proce ss of the court. The learned Attorney
General elaborated that there is no limitation
on the power of this Court under Article 142
in quashing a criminal proceeding pending
before a subordinate court. Before we proceed
to consider the width and amplitude of this
Court's power under Article 142 of the
Constitution it is necessary to remind
ourselves that though there is no provision
like Section 482 of the Criminal Procedure Code
conferring express power on this Court to quash
or set aside any criminal procee dings pending
before a criminal court to prevent abuse of
process of the court, but this Court has power
to quash any such proceedings in exercise of
its plenary and residuary power under Article
136 of the Constitution, if on the admitted
facts no charge is made out against the accused
or if the proceedings are initiated on
concocted facts, or if the proceedings are
initiated for oblique purposes. Once this Court
is satisfied that the criminal proceedings
amount to abuse of process of court it would
quash such proceedings to ensure justice.
In State of W.B. v. Swapan Kumar Guha [(1982)
1 SCC 561 : 1982 SCC (Cri) 283 : (1982) 3 SCR
121] , this Court quashed first information
report and issued direction prohibiting
investigation into the allegations contained
in the FIR as the Court was satisfied that on
admitted facts no offence was made out against
the persons named in the FIR. In Madhavrao
Jiwajirao Scindia v. Sambhajirao Chandrojirao
Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]
, criminal proceedings were quashed as this
Court was satisfied that the case was founded
on false facts, and the procee dings for trial
had been initiated for oblique purposes.
50. Article 142(1) of the Constitution
provides that Supreme Court in exercise of its
jurisdiction may pass such decree or make such
order as is necessary for doing complete
justice in any ‘cause’ o r ‘matter’ pending
before it. The expression ‘cause’ or ‘matter’
would include any proceeding pending in court
and it would cover almost every kind of
proceeding in court including civil or
criminal. The inherent power of this Court
under Article 142 coupl ed with the plenary and
residuary powers under Articles 32 and 136
embraces power to quash criminal proceedings
pending before any court to do complete justice
in the matter before this Court. If the court
is satisfied that the proceedings in a criminal
case are being utilised for oblique purposes
or if the same are continued on manufactured
and false evidence or if no case is made out
on the admitted facts, it would be in the ends
of justice to set aside or quash the criminal
proceedings. It is idle to sug gest that in such
a situation this Court should be a helpless
spectator.
51. Mr Nariman urged that Article 142(1) does
not contemplate any order contrary to statutory
provisions. He placed reliance on the Court's
observations in Prem Chand Garg v. Excise
Commissioner, U.P., Allahabad [1963 Supp 1 SCR
885, 899 : AIR 1963 SC 996] and A.R.
Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988
SCC (Cri) 372] , where the Court observed that
though the powers conferred on this Court under
Article 142(1) are very wide, but in exercise
of that power the Court cannot make any order
plainly inconsistent with the express
statutory provisions of substantive law. It may
be noticed that in Prem Chand Garg [1963 Supp
1 SCR 885, 899 : AIR 1963 SC 996] and Antulay
case [(1988) 2 SCC 602 : 1988 SCC (Cri) 372]
observations with regard to the extent of this
Court's power under Article 142(1) were made
in the context of fundamental rights. Those
observations have no bearing on the question
in issue as there is no provision in any
substantive law restricting this Court's power
to quash proceedings pending before
subordinate court. This Court's power under
Article 142(1) to do “complete justice” is
entirely of different level and of a different
quality. Any prohibition or rest riction
contained in ordinary laws cannot act as a
limitation on the constitutional power of this
Court. Once this Court has seisin of a cause
or matter before it, it has power to issue any
order or direction to do “complete justice” in
the matter. This co nstitutional power of the
Apex Court cannot be limited or restricted by
provisions contained in statutory law.
In Harbans Singh v. State of U.P. [(1982) 2
SCC 101 : 1982 SCC (Cri) 361 : (1982) 3 SCR
235, 243] , A.N. Sen, J. in his concurring
opinion observ ed: (SCC pp. 107 -08, para 20)
“Very wide powers have been conferred on this
Court for due and proper administration of
justice. Apart from the jurisdiction and powers
conferred on this Court under Articles 32 and
136 of the Constitution I am of the opinio n
that this Court retains and must retain, an
inherent power and jurisdiction for dealing
with any extraordinary situation in the larger
interests of administration of justice and for
preventing manifest injustice being done. This
power must necessarily be sparingly used only
in exceptional circumstances for furthering
the ends of justice.”
No enactment made by Central or State
legislature can limit or restrict the power of
this Court under Article 142 of the
Constitution, though while exercising power
under Article 142 of the Constitution, the
Court must take into consideration the
statutory provisions regulating the matter in
dispute. What would be the need of “complete
justice” in a cause or matter would depend upon
the facts and circumstances of each ca se and
while exercising that power the Court would
take into consideration the express provisions
of a substantive statute. Once this Court has
taken seisin of a case, cause or matter, it
has power to pass any order or issue direction
as may be necessary t o do complete justice in
the matter. This has been the consistent view
of this Court as would appear from the
decisions of this Court in State of
368 : (1976) 3 SCR 1005] ; Ganga Bishan v. Jai
Narain [(1986) 1 SCC 75] ; Navnit R.
Kamani v. R.R. Kamani [(1988) 4 SCC 387]
; B.N. Nagarajan v. State of Mysore [(1966) 3
; Special Reference No. 1 of 1964 [(1965) 1 SCR
413, 499 : AIR 1965 SC 745] and Harbans
Singh v. State of U.P. [(1982) 2 SCC 101 : 1982
SCC (Cri) 361 : (1982) 3 SCR 235, 243] Since
the foundation of the criminal trial of N.L.
Patel is based on the facts which have already
been found to be false, it would be in the ends
of justice and also to do complete j ustice in
the cause to quash the criminal proceedings.
We accordingly quash the criminal proceedings
pending before the Chief Judicial Magistrate,
Nadiad in Criminal Cases Nos. 1998 of 1990 and
1999 of 1990. ”
202. It issued various guidelines also for the
protection of the Members of the Subordinate Judiciary.
The decision in Supreme Court Advocates -on-Record
Association and others v. Union of India71 related to
the appointment of Judges to the Supreme Court and Hi gh
Court and transfer of Judges and Chief Justices. In the
majority opinion of Justice J. S. Verma, we may notice
the following:
“447. When the Constitution was being drafted,
there was general agreement that the
appointments of Judges in the superior
judiciary should not be left to the absolute
discretion of the executive, and this was the
reason for the provision made in the
Constitution imposing the obligation to
consult the Chief Justice of India and the
Chief Justice of the High Court. This was done
to achieve independence of the Judges of the
superior judiciary even at the time of their
appointment, instead of confining it only to
the provision of security of tenure and other
conditions of service after the appointment was
made. It was realised that t he independence of
the judiciary had to be safeguarded not merely
by providing security of tenure and other
conditions of service after the appointment,
but also by preventing the influence of
political considerations in making the
appointments, if left to the absolute
discretion of the executive as the appointing
authority. It is this reason which impelled the
incorporation of the obligation of
consultation with the Chief Justice of India
and the Chief Justice of the High Court in
Articles 124(2) and 217(1 ). The Constituent
Assembly Debates disclose this purpose in
prescribing for such consultation, even though
the appointment is ultimately an executive
act.”
(Emphasis Supplied)
203. We may at once observe as follows:
We have noticed in the context of the Constituent
Assembly debates, as also what preceded it in the form
of Sub-Committee Reports, that there was general
agreement that a law must be made by Parliament and the
amended draft Article 289 came to be, accordingly,
further amended an d approved, leading to the insertion
of the words ‘subject to the law to be made by
Parliament’ in Article 324(2). In other words, the
purpose for which the provision was made, as also the
imperative need to make such a law, has been eloquently
articulated in the views of the Members of the
Constituent Assembly. The appointment of Judges of the
Superior Judiciary under the Government of India Act,
which preceded the Constitution, was being made in the
absolute discretion of the Crown. This Court took note
of the fact that if left to the absolute discretion of
the Executive, as the appointing Authority, it may lead
to political considerations in making the appointment.
Article 124(2) dealing with appoint ments to the Supreme
Court and Article 217(1) which deals with appointments
to the High Courts, was to be made based on what was
described as ‘consultations ’ in these Articles. It will
be again noticed that Article 324(2), does not provide
for consultation with any one and it appears to place
the power to make appointments, exclusively with the
Executive as the President is bound by the advice of
the Prime Minister. However, it is precisely to guard
against the abuse by the exclusive power being vested
with the Executive that instead of a consultative
process being provided, Parliament was to make a law.
This clearly was the contemplation of the Founding
Fathers. This Court proceeded to lay down norms in the
absence of any specific guidelines. We may, in thi s
regard, notice paragraph -477:
“477. The absence of specific guidelines in the
enacted provisions appears to be deliberate,
since the power is vested in high
constitutional functionaries and it was
expected of them to develop requisite norms by
conventi on in actual working as envisaged in
the concluding speech of the President of the
Constituent Assembly. The hereinafter
mentioned norms emerging from the actual
practice and crystallized into conventions —
not exhaustive — are expected to be observed
by the functionaries to regulate the exercise
of their discretionary power in the matters of
appointments and transfers.”
204. We may also indicate that this Judgment provides a
situation where this Court has laid down norms, even
in the constitutional realm.
205. It is further of the greatest moment that this
Court noted that it was realised that independence of
the Judiciary had to be protected not merely after
appointment but by the process of appointment. The
Chief Election Commissioner ca n also be removed only
in the same fashion as a Judge of the Supreme Court.
His conditions of service cannot be varied to his
disadvantage. But unlike the Comptroller and Auditor
General, who also enjoys protection after appointment,
the Founding Fathers c learly intended to also provide
for an independent Election Commission regulating by
law, the appointment itself. This is in place of
consultation provided for Judges.
206. In Vishaka and others v. State of Rajasthan and
others72, a Writ Petition was filed for enforcement of
Fundamental Rights of working women under Articles 14,
19 and 21. The complaint in the Writ Petition was sexual
harassment of working women at work places. An alleged
brutal gangrape of a social worker provided, what may
be described as, an immediate trigger. This Court went
on to find that an incident of sexual harassment
violated the Fundamental Rights of General Equality,
under Articles 14 and 15, and a Right to Life and
Liberty, under Article 21. The Court drew support from
the role of t he Judiciary in the Beijing Statement of
Principles of the Independence of Judiciary in Law Asia
Region. We may set down the objectives, which the Court
drew upon, inter alia :
“Objectives of the Judiciary :
10. The objectives and functions of the
Judiciary include the following:
(a) to ensure that all persons are able to live
securely under the rule of law;
(b) to promote, within the proper limits of the
judicial function, the observance and the
attainment of human rights; and
(c) to administer the law impartially among
persons and between persons and the State.”
207. The Court also drew on an International Convention
providing for elimination of all forms of
discrimination against women. Finally, on the basis of
the Principle that when t here is no inconsistency
between a Convention and a Domestic Law and there is a
void in the Domestic Law, and bearing in mind the
meaning and content of the Fundamental Rights, the
Court went on to lay down elaborate guidelines and
norms. The norms include d as to what constitute d sexual
harassment, inter alia. This Court went on to even
provide for disciplinary action to be initiated and a
complain t mechanism. The guidelines were, however, made
binding and enforceable in law, until suitable
legislation was enacted. The norms enunciated by this
Court, which may have been legislative in nature,
interestingly, held the field for more than fifteen
years, when Parliament came out with a law.
208. In Special Reference No. 1 of 1998, R e73 (The Third
Judges case), which no doubt, was a Judgement rendered
in a Reference made under Article 143(1) of the
Constitution, one of the contentions was, whether the
expression, both in Articles 217(1) and 222(1), viz.,
(consultation with the Chief Justice of India required
consultation with the plurality of Judges or the sole
opinion of the Chief Justice sufficed), this Court went
on to answer the question that the sole indi vidual
opinion of the Chief Justice would not constitute
‘consultation’. It was also laid down that the Chief
Justice of India must consult four senior -most puisne
Judges before making appointment to the Supreme Court
and High Courts. No doubt, it could be said that the
decisions [the Judges cases] could be said to have
sprouted from the construction of the words used in the
relevant Articles and, in particular, the word
‘consult’. Also, it is true that Article 124(2) as it
stood then, read as follows:
“124(2). Every Judge of the Supreme Court shall
be appointed by the President by warrant under
his hand and seal after consultation with such
of the Judges of the Supreme Court and of High
Courts in the States as the President may deem
necessary for the purpose and shall hold office
until he attains the age of sixty -five years:
Provided that in the case appointment of a
Judge other than the Chief Justice, the Chief
Justice of India shall always be consulted:
Provided further that –
(a) A Judge may, by writing under his hand
addressed to the President, resign his office;
(b) A judge may be removed from his office in
the manner provided in clause (4).”
(Emphasis supplied)
209. What is of relevance is, however, the elaboration
of the procedure, as regards consult ation, and the
laying down of norms, which were to govern the
appointment to the Superior Judiciary. The mandate to
consult four may appear to crystalize a figure not to
be found in the Constitution.
210. In fact, we may observe that the Doctrine of
Separation of Powers has spawned decisions of this
Court largely in the context of litigation where
challenges led to actions by the Legislative Organ,
allegedly contravening the limits set for it. This is
not to say that we are holding that it would be open
to the courts to be oblivious to the true role it is
called upon to perform and which flows from the
judicial function that it discharges. As noticed by
this Court, however, there is no magic formula and what
it all amounts to is, the need to maintain a delicate
balance. While, it is true that, ordinarily, the Court
cannot, without anything more, usurp what is purely a
legislative power or function, in the context of the
Constitution, which clothes the citizen s with
Fundamental Rights and provides for constitutional
goals to be achieved and inertia of the Legislative
Department producing a clear situation, where there
exist veritable gaps or a vacuum, the Court may not shy
away from what essentially would be pa rt of its
judicial function.
211. A Writ Petition was filed under Article 32 of the
Constitution assailing the appointment of certain
Ministers despite their involvement in serious and
heinous crimes. The Constitution Bench of this Court
in Manoj Narula v. Uni on of India74 went on to refer
to the criminalisation of politics as being an anathema
for the sanctity of democracy. Of immediate interest
to this Court, are the following observations:
“Principle of constitutional silence or abeyance
65. The next principle that can be thought of
is constitutional silence or silence of the
Constitution or constitutional abeyance. The
said principle is a progressive one and is
applied as a recognised advanced
constitutional practice. It has been
recognised by the Cou rt to fill up the gaps in
respect of certain areas in the interest of
justice and larger public interest.
Liberalisation of the concept of locus standi
for the purpose of development of public
interest litigation to establish the rights of
the have -nots or to prevent damages and protect
environment is one such feature. Similarly,
laying down guidelines as procedural
safeguards in the matter of adoption of Indian
children by foreigners in Laxmi Kant
Pandey v. Union of India [(1987) 1 SCC 66 :
1987 SCC (Cri) 33 : AIR 1987 SC 232] or issuance
of guidelines pertaining to arrest in D.K.
Basu v. State of W.B. [(1997) 1 SCC 416 : 1997
SCC (Cri) 92 : AIR 1997 SC 610] or directions
issued in Vishaka v. State of
Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri)
932] are so me of the instances.”
212. In Bhanumati and others v. State of U.P. through
its Principal Secretary and others75, pronouncing a
State Law providing for No Confidence Motion as valid,
a Bench of this Court, inter alia, held as follows:
“50. The learned author elaborated this
concept further by saying, “Despite the absence
of any documentary or material form, these
abeyances are real and are an integral part of
any Constitution. What remains unwritten and
indeterminate can be just as much responsible
for the operational character and restraining
quality of a Constitution as its more tangible
and codified components.” (P. 82)
51. Many issues in our constitutional
jurisprudence evolved out of this doctrine of
silence. The basic structure do ctrine vis -à-
vis Article 368 of the Constitution emerged out
of this concept of silence in the Constitution.
A Constitution which professes to be democratic
and republican in character and which brings
about a revolutionary change by the Seventy -
third Cons titutional Amendment by making
detailed provision for democratic
decentralisation and self -government on the
principle of grass -root democracy cannot be
interpreted to exclude the provision of no -
confidence motion in respect of the office of
the Chairperso n of the panchayat just because
of its silence on that aspect.”
213. In Kalpana Mehta and others v. Union of India and
others76, a Constitution Bench of this Court, inter
alia, held as follows:
“51. The Constitution being an organic
document, its ongoing interpretation is
permissible. The supremacy of the Constitution
is essential to bring social changes in the
national polity ev olved with the passage of
time. The interpretation of the Constitution
is a difficult task. While doing so, the
constitutional courts are not only required to
take into consideration their own experience
over time, the international treaties and
covenants but also keep the doctrine of
flexibility in mind. It has been so stated
in Union of India v. Naveen Jindal [Union of
India v. Naveen Jindal , (2004) 2 SCC 510].
53. Recently, in K.S. Puttaswamy v. Union of
India [K.S. Puttaswamy v. Union of India ,
(2017) 10 SCC 1], one of us (Dr D.Y.
Chandrachud, J.) has opined that
constitutional developments have taken place
as the words of the Constitution have been
interpreted to deal with new exigencies
requiring an expansive reading of libertie s and
freedoms to preserve human rights under the
Rule of Law. It has been further observed that
the interpretation of the Constitution cannot
be frozen by its original understanding, for
the Constitution has evolved and must
continuously evolve to meet th e aspirations and
challenges of the present and the future . The
duty of the constitutional courts to interpret
the Constitution opened the path for succeeding
generations to meet the challenges. Be it
stated, the Court was dealing with privacy as
a matter of fundamental right. ”
(Emphasis supplied)
In case of Article 324(2), it was the original
understanding itself that law be made. This
understanding has received reinforcement by subsequent
developments, including objective reports.
214. Equally, we may notice what this Court, in Manoj
Narula (supra), held as regards constitutional
morality:
“74. The Constitution of India is a living
instrument with capabilities of enormous
dynamism. It is a Constitution made for a
progressive society. Working of such a
Constitution depends upon the prevalent
atmosphere and conditions. Dr Ambedkar had,
througho ut the debate, felt that the
Constitution can live and grow on the bedrock
of constitutional morality. Speaking on the
same, he said:
“Constitutional morality is not a natural
sentiment. It has to be cultivated. We must
realise that our people have yet to learn
it. Democracy in India is only a top -
dressing on an Indian soil, which is
essentially undemocratic.” [ Constituent
Assembly Debates , 1948, Vol. VII, 38.]”
215. We have set down the legislative history of Article
324, which includes reference to what trans pired,
which, in turn, includes the views formed by the
members of Sub -Committees, and Members of the
Constituent Assembly. They unerringly point to one
conclusion. The power of appointment of the Members of
the Election Commission, which was charged with the
highest duties and with nearly infinite powers, and
what is more, to hold elections, not only to the Central
Legislature but to all the State Legislatures, was not
to be lodged exclusively with the Executive. It is,
accordingly that the words ‘subject to any law to be
made by Parliament’ were, undoubtedly, incorporated.
216. No law, however, came to be enacted by Parliament.
We have elaborately referred to the noises and voices
eloquently and without a discordant note being struck,
which points to an overpow ering symphony, which call s
for the immediate need to fulfil the intention of the
Founding Fathers, starting with the Goswami Committee
in the year 1990, more than three decades ago, the Two
Hundred and Fifty -Fifth Central Law Commission Report
in 2015 and the Reports, both in the Press and other
materials.
217. It may be true that Election Commission of India
provide its services to certain countries. That,
however, cannot deflect this Court from providing f or
what the Founding Fathers contemplated also and
advocated by in various reports.
218. It may be true only Chief Election Commissioners
were appointed for the first four decades of the
Republic and, thereafter, since the year 1993, the
Election Commission has b ecome a team, which consists
of the Chief Election Commissioner and the two Election
Commissioners. It may be true that in the sense that
the President, acting on the advice of the Prime
Minister, in accordance with the concerned Rules of
Business, has bee n making appointments.
219. However, it is equally clear that Article 324 has
a unique background. The Founding Fathers clearly
contemplated a law by Parliament and did not intend the
executive exclusively calling the shots in the matter
of appointments to the Election Commission. Seven
decades have passed by. Political dispensations of
varying hues, which have held the reigns of power have
not unnaturally introduced a law. A law could, not be
one to perpetuate what is already permitted namely
appointment at th e absolute and sole discretion of the
Executive. A law, as Gopal Sankaranarayanan points out,
would have to be necessarily different. The absence of
such a law does create a void or vacuum. This is despite
a chorus of voices even cutting across the politic al
divide urging divesting of the exclusive power of
appointment from the Executive.
220. We have noticed, that while making a law is
ordinarily a power with the legislative branch and
being a power, it cannot be compelled by a Court, the
making of law may be a constitutional imperative. In
the context of Article 326, making of law as
contemplated in Article 326, was an unavoidable
necessity. Realising that the statutory framework was
necessary to breathe life into Article 326 and which
was not to be incongruous with this command, Parliament
enacted the 1950 Act and the 1951 Act. The first General
Election followed. Making of law by Parliament as
provided for in Article 146 and Article 229 dealing
with conditions of service of employees of the Supreme
Court and t he High Court respectively, was and is a
sheer power and enabling provision. The context and the
purpose signals no imperative need. No intention to
indeed peremptorily provide for a law as is discernible
in the case of appointment of the members of the
Election Commission of India pervades the Articles. The
vacuum in the case of Article 324 (2) is the absence
of the law which Parliament was contemplated to enact.
221. Political parties undoubtedly would appear to
betray a special interest in not being forthcomi ng with
the law. The reasons are not far to seek. There is a
crucially vital link between the independence of the
Election Commission and the pursuit of power, its
consolidation and perpetuation.
222. As long as the party that is voted into power is
concerned, there is, not unnaturally a near insatiable
quest to continue in the saddle. A pliable Election
Commission, an unfair and biased overseer of the
foundational exercise of adult franchise, which lies
at the heart of democracy, who obliges the powers that
be, perhaps offers the surest gateway to acquisition
and retention of power.
223. The values that animated the freedom struggle had
to be brought home to a new generation through the
insertion of the provision relating to fundamental
duties. Criminalisation of politics, a huge surge in
the influence of money power, the role of certain
sections of the media where they appear to have
forgotten their invaluable role and have turned
unashamedly partisan, call for the unavoidable and
unpostponable filling up of the vacuum. Even as it is
said that justice must not only be done but seen to be
done, the outpouring of demands for an impartial mode
of appointment of the Members require, at the least,
the banishing of the impression, that the Election
Commission is appointed by less than fair means.
224. We bear in mind the fact that the demand for
putting in place safeguards to end the pernicious
effects of the exclusive power being vested with the
Executive to make appointment to the Election
Commission, has been the demand of political parties
across th e board. Once power is assumed, however, the
fact of the matter is that, despite the concerns of the
Founding Fathers and the availability of power,
successive governments have, irrespective of their
colour, shied away, from undertaking, what again we
find was considered would be done by Parliament, by the
Founding Fathers.
225. The electoral scene in the country is not what it
was in the years immediately following the country
becoming a Republic. Criminalisation of politics, with
all its attendant evils, has become a nightmarish
reality. The faith of the electorate in the very
process, which underlies democracy itself, stands
shaken. The impact of ‘big money' and its power to
influence elections, the influence of certain sections
of media, makes it also absolu tely imperative that the
appointment of the Election Commission, which has been
declared by this Court to be the guardian of the
citizenry and its Fundamental Rights, becomes a matter,
which cannot be postponed further.
226. While this Court is neither invited nor if it is
invited, would issue a Mandamus to the Legislature to
make a law, as contemplated in Article 324(2), it may
not be the end of the duty of this Court in the context
of the provision in question. We have already
elaborated and found that core va lues of the
Constitution, including democracy, and Rule of Law, are
being undermined. It is also intricately interlinked
with the transgression of Articles 14 and 19. Each
time, on account of a ‘knave’, in the words of Dr.
Ambedkar, or again in his words, ‘a person under the
thumb of the Executive’, calls the shots in the matter
of holding the elections, which constitutes the very
heart of democracy, even formal democracy, which is
indispensable for a Body Polity to answer the
description of the word ‘democ racy’, is not realised.
227. In the unique nature of the provision, we are
concerned with and the devastating effect of continuing
to leave appointments in sole hands of the Executive
on fundamental values, as also the Fundamental Rights,
we are of the considered view that the time is ripe for
the Court to lay down norms. In other words, the vacuum
exists on the basis that unlike other appointments, it
was intended all throughout that appointment
exclusively by the Executive was to be a mere transient
or stop gap arrangement and it was to be replaced by a
law made by the Parliament taking away the exclusive
power of the Executive. This conclusion is clear and
inevitable and the absence of law even after seven
decades points to the vacuum.
228. Article 148 of t he Constitution, dealing with
appointment of the Comptroller and Auditor General of
India, provides that it is to be made by the President.
This is to be contrasted with the appointment of the
Members of the Election Commission in Article 324(2).
On a comp arison of both the Articles, the difference
is stark and would justify the petitioners contention
that in regard to the appointment of the Members of the
Election Commission, having regard to the overwhelming
importance and the nearly infinite plenary powe rs, they
have in regard to the most important aspect of
democracy itself, viz., the holding of free and fair
elections, the Founding Fathers have provided for the
unique method of appointment suited to the requirements
of the posts in question. The refusal of Parliament,
despite what was contemplated by the Founding Fathers,
and what is more, the availability of a large number
of Reports, all speaking in one voice, reassures us
that even acting within the bounds of the authority
available to the Judicial Br anch, we must lay down
norms, which, undoubtedly, must bear life only till
Parliament steps in. We have found, how appointments
are being made in our discussion earlier. Our minds
stand fortified that there is an imperative need for
the Court to step in.
229. As regards the exact norm, which should be put in
place, we bear in mind the following considerations:
We have before us the various Reports, which we
have referred to. We would think that, while what must
be laid down, must be fair and reasonable, but it m ust
be what Parliament would or could lay down, if it were
to make a law. Under the Rules of Business made under
Article 77, it is acknowledged that the appointment of
the Chief Election Commissioner and the Election
Commissioners do not engage the Cabinet . We take note
of the fact that for the appointment to the Director
of the Central Bureau of Investigation [which is not a
constitutional post], Section 4A of Delhi Special
Police Establishment Act, 1946, contemplates that
appointment shall be made by the Central Government on
the basis of recommendation of a committee consisting
of the Prime Minister as the Chairperson, the Leader
of the Opposition recognised in the House of People,
as such, or where there is no such Leader of the
Opposition, then, the Lea der of the Single Largest
Opposition Party in the House and the Chief Justice of
India or a Judge of the Supreme Court nominated by him.
Similarly, we find, in regard to the appointment of the
Chairperson and Members of the Lokpal, under the Lokpal
and Lokayuktas Act, 2013, the Chief Justice is one of
the five Members of a Selection Committee, in the
matter of appointment. We deem it appropriate to notice
Section 4 of the Lokpal and Lokayuktas Act, 2013, which
reads as follows:
“4. (1) The Chairperson and Members shall be
appointed by the President after obtaining the
recommendations of a Selection Committee
consisting of —
(a) the Prime Minister —Chairperson;
(b) the Speaker of the House of the People —
Member;
(c) the Leader of Opposition in the House of
the People —Member;
(d) the Chief Justice of India or a Judge of
the Supreme Court nominated by him —Member;
(e) one eminent jurist, as recommended by the
Chairperson and Members referred to in clauses
(a) to (d) above, to be nominated by t he
President —Member.
(2) No appointment of a Chairperson or a Member
shall be invalid merely by reason of any
vacancy in the Selection Committee.
(3) The Selection Committee shall for the
purposes of selecting the Chairperson and
Members of the Lokpal and for preparing a panel
of persons to be considered for appointment as
such, constitute a Search Committee consisting
of at least seven persons of standing and
having special knowledge and expertise in the
matters relating to anti -corruption polic y,
public administration, vigilance, policy
making, finance including insurance and
banking, law and management or in any other
matter which, in the opinion of the Selection
Committee, may be useful in making the
selection of the Chairperson and Members of the
Lokpal:
Provided that not less than fifty per cent. of
the members of the Search Committee shall be
from amongst the persons belonging to the
Scheduled Castes, the Scheduled Tribes, Other
Backward Classes, Minorities and women:
Provided further that the Selection Committee
may also consider any person other than the
persons recommended by the Search Committee.
(4) The Selection Committee shall regulate its
own procedure in a transparent manner for
selecting the Chairperson and Members of the
Lokpal.
(5) The term of the Search Committee referred
to in sub -section (3), the fees and allowances
payable to its members and the manner of
selection of panel of names shall be such as
may be prescribed.”
We bear in mind the Report of the Goswa mi Committee
and, what is more, the Law Commission Report (Two
Hundred and Fifty -Fifth) and lay down as follows.
230. The appointment of the Chief Election Commissioner
and the Election Commissioners, shall be made by the
President on the advice of a Co mmittee consisting of
the Prime Minister, the Leader of the Opposition of the
Lok Sabha , and in case no leader of Opposition is
available, the leader of the largest opposition Party
in the Lok Sabha in terms of numerical strength, and
the Chief Justice of India.
231. We make it clear that this will be subject to any
law to be made by Parliament .
232. One of the contentions raised by the petitioner s
is this Court must provide for the same protection to
the Election Commissioners as is available to the Chief
Election Commissioners. Even the Report of the Election
Commission itself would appear to endorse the said view
and complaint. We expatiate. It i s the contention of
the petitioners that when the Constitution was framed,
the Founding Fathers contemplated that appointment of
Election Commissioners was to be need based and not a
full-time affair. Contrary to the said view, however,
a multi-Member team , is what the Election Commission
of India has become, in fact, since 1993. It is here
to stay. The distinction between the Chief Election
Commissioner and the Election Commissioner s have been
whittled down considerably by the amendments brought
to the 199 1 Act. However, when it comes to the
constitutional protection, it is pointed out that the
second proviso to Article 324(5) only enacts the
protection that the Election Commissioner or Regional
Commissioner shall not be removed from Office except
on the re commendation of the Chief Election
Commissioner. An attempt has, in fact, be en made to
persuade this Court to hold that, being in the nature
of a further proviso, as the words of the second proviso
begin as ‘provided further’, it is only a further
protecti on to the Election Commissioner or a Regional
Commissioner. Thus, it is pointed out, the Court must
adopt the following interpretation. An Election
Commissioner or Regional Commissioner can be removed
only in the like manner and on like grounds as a Judge
of the Supreme Court of India. A further safeguard is,
however, provided to the Election Commissioner, viz.,
that he can be removed from Office only on the
recommendation of the Chief Election Commissioner. To
appreciate the argument, we recapture Article 324(5).
It reads as follows:
“324(5) Subject to the provisions of any law
made by Parliament, the conditions of service
and tenure of office of the Election
Commissioners and the Regional Commissioners
shall be such as the President may by rule
determine;
Provided that the Chief Election Commissioner
shall not be removed from his office except in
like manner and on the like grounds as a Judge
of the Supreme Court and the conditions of
service of the Chief Election Commissioner
shall not be varied to his di sadvantage after
his appointment:
Provided further that any other Election
Commissioner or a Regional Commissioner shall
not be removed from office except on the
recommendation of the Chief Election
Commissioner.”
233. We decode the said provision as follows:
The conditions of service and tenure of the
Election Commissioners and the Regional Commissioners
was to be such as made by the Rule provided. This,
however, was subject to any law made by Parliament.
Parliament has quickly on the heels of the Goswami
Committee, stepped in with the 1991 Act. We have
already noted the terms of the Act as subsequently
amended. It contemplates salary to be paid, not only
to the Election Commissioner but also to the Chief
Election Commissioners, which is to be equal to the
salary of the Judge of the Supreme Court of India. The
term as we have already noticed, both of the Chief
Election Commissioner and the Election Commissioner,
was to be six years, subject to the proviso, which we
have noticed. It also provides for other aspects
relating to conditions of service. While unanimity of
views among the members is statutorily contemplated in
Section 10(1) as a desirable goal, the inevitable
differences of opinion was contemplated and Section
10(3) has declared that in such an eventuality, it is
the opinion of the majority of the Members, which would
prevail. We have already noticed how in T.N. Seshan
(supra), this has been found to not militate against
the Chief Election Commissioner being given the power
to act as the Chai rman of the Commission. It may be
true that there is equality otherwise, which exists
between the Chief Election Commissioner and the
Election Commissioners in various matters dealt with
under the Act. However, we must bear in mind, in law,
Article 324 is inoperable without the Chief Election
Commissioner [See T.N. Seshan (supra)] . In law, there
may not be an insuperable obstacle for Parliament to
decide to do away with the post of Election
Commissioner. In fact, it happened, as can be seen in
the Judgment in Dhanoa (supra) wherein it was found
that the termination of service of the Election
Commissioners following the abolition of the posts did
not constitute removal of the Election Commissioner
within the meaning of the second proviso to Article
324(5). Mo re importantly, even on a plain reading of
Article 324(5), we are of the view that in regard to
the prayer that the Election Commissioner must be
accorded the same protection as is given to the Chief
Election Commissioner, the argument appears to be
untenable. This prayer was rejected, in fact, in T.N.
Seshan (supra). It is clear as day light that the first
proviso protects the Chief Election Commissioner alone
from removal by providing for protection as is accorded
to a Judge of the Supreme Court of India. It is still
further more important to notice that the first proviso
interdicts varying of the conditions of service of the
Chief Election Commissioner to his disadvantage after
the appointment. It is, thereafter, that the second
proviso appears. The secon d proviso exclusively deals
with any other Election Commissioner, inter alia . The
word ‘any other Election Commissioner’ has been
provided to distinguish him from the Chief Election
Commissioner. Therefore, for the Election
Commissioners other than the Chief Election
Commissioner, the protection which is clearly
envisaged, as against his removal is only that it can
be effected only with the recommendation of the Chief
Election Commissioner. We are of the view that in the
context of the provision, the words ‘provided further’
cannot be perceived as an additional protection to the
Election Commissioner . It is intended only to be a
standalone provision, specifically meant to deal with
the categories of persons mentioned therein. In fact,
the acceptance of the argument of the petitioners would
involve yet another consequence, which to our minds,
would appear to project an anomalous result . To put it
mildly, if the Election Commissioner is accorded the
protection available under the first proviso to the
Chief Election Commissioner, the result will be as
follows. He would be entitled to not only claim
immunity from removal except on being impeached like a
Judge of the Supreme Court but he would be conferred
with a further protection even after the impeachment
or before the imp eachment starts, that the Chief
Election Commissioner must also recommend the removal.
We would think that no more need be said and we reject
the contention. However, we only would obse rve that in
the light of the fact that Election Commissioners have
become part of the Election Commission, perhaps on the
basis of the volume of work that justifies such an
appointment and also the need to have a multi -Member
team otherwise, it is for Parl iament acting in the
constituent capacity to consider whether it would be
advisable to extend the protection to the Election
Commissioners so as to safeguard and ensure the
independence of the Election Commissioners as well.
This goes also as regards varia tion of service
condition s after appointment.
234. One of the contentions and, therefore, relief
sought is, that there must be an independent
Secretariat to the Election C ommission of India and the
its expenditure must be charged on the Consolidated
Fund of India on the lines of the Lok Sabha/Rajya Sabha
Secretariat.
235. In this regard, the second respondent (the Election
Commission of India) has filed a counter affidavit in
Writ Petition (C) No. 1043 of 2017, in which Writ
Petition, the contention and the prayer have been
incorporated. In the Counter Affidavit of the Elec tion
Commission itself, the stand of the Election Commission
can be stated in a nutshell as follows:
It has sent a proposal that the expenditure of the
Commission should be charged on the Consolidated Fund
of India. It refers to the Election Commission Charging
of Expenses on the Consolidated Fund of India Bill,
1994, which provided for the various items of
expenditure to be charged upon the Consolidated Fund
of India. It reiterated its proposal for an independent
Secretariat as also charging of the expen diture on the
Consolidated Fund of India by letter dated 13.04.2012,
as also in December, 2016. It has also laid store by
the recommendation of the Law Commission, which inter
alia, recommended the insertion of Article 324(2A),
which contemplated the Elect ion Commission being
provided with an independent and permanent secretarial
staff.
236. There cannot be any doubt that the Election
Commission of India is to perform the arduous and
unenviable task of remaining aloof from all forms of
subjugation by and interf erence from the Executive. One
of the ways, in which, the Executive can bring an
otherwise independent Body to its knees, is by starving
it off or cutting off the requisite financial
wherewithal a nd resources required for its efficient
and independent func tioning. It would not be unnatural
if faced with the prospect of it not being supplied
enough funds and facilities, a vulnerable Commission
may cave in to the pressure from the Executive and,
thus, it would result in an insidious but veritable
conquest of an otherwise defiant and independent
Commission. This is apart from the fact that cutting
off the much -needed funds and resources will detract
from its efficient functioning.
237. No doubt, the stand of the Union of India would
appear to be that these are all m atters of policy and
no interference is needed or warranted.
238. We must bear in mind that to elevate it to a
constitutional provision and protection thereunder,
maybe a matter, which must engage the attention of the
Constituent Body. This is again a matter which can also
be provided by way of a law by Parliament. We ha ve no
doubt that there is considerable merit in the complaint
of the petitioner, which apparently, is endorsed by the
Election Commission of India itself. We cannot be
oblivious to the need for articulation of details in
regard to the expenditure, which is a matter of policy,
which we refrain from doing. We would only make an
appeal on the basis that there is an urgent need to
provide for a permanent Secretariat and also to provide
that the expenditure be charged on the Consolidated
Fund of India and it is for the Union of India to
seriously consider bringing in the much -needed changes.
239. The Writ Petitions are partly allowed and they are
disposed of as follows:
I. We declare that as far as appointment to the
posts of Chief Election Commissioner and the
Election Commissioners are concerned, the same
shall be done by the President of India on the
basis of the advice tendered by a Co mmittee
consisting of the Prime Minister of India, the
Leader of the Opposition in the Lok Sabha and,
in case, there is no such Leader, the Leader of
the largest Party in the Opposition in the Lok
Sabha having the largest numerical strength , and
the Chief Justice of India. This norm will
continue to hold good till a law is made by the
Parliament.
II. As regards the relief relating to putting in
place a permanent Secretariat for the Election
Commission of India and charging its expenditure
to the Consolidated Fund of India is concerned,
the Court makes a fervent appeal that the Union
of India/Parliament may consid er bringing in the
necessary changes so that the Election
Commission of India becomes truly independent.
[Aniruddha Bose]
[Hrishikesh Roy]
[C. T. Ravikumar]
1. I have had the advantage of going through the judgment penned
by my brother K.M. Joseph, J. I entirely agree with the conclusions
which my erudite Brother has drawn, based on the remarkable
process of reasoning with my additional conclusion. I wish to add f ew
lines and express my views not because the judgment requires any
further elaboration but looking for the question of law that emerge of
considerable importance.
2. For the purpose of analysis, the judgment has been divided into
following sections:
I. Reference
II. Election Commission of India
III. Why an independent Election Commission is necessary
A. Working a Democratic Constitution
B. Right to vote
C. Free and fair elections
IV. Constitutional and statutory framework : The
Constitutional Vacuum
V. The Judgment in TN Seshan
VI. Reports of various Commissions on Manner of
Appointment of Chief Election Commissioner and Election
Commissioners
VII. Comparative framework - Foundational parameters
VIII. Process of selection of other constitutional /statutory
bodies
IX. Constitutional silence and vacuum - power of the Court to
lay down guidelines
X. Independence of Election Commissioners
XI. Directions
I. Reference
3. This case arises out of a batch of writ petitions, with the initial
petition filed as a public interest litigation by Anoop Baranwal in
January 2015. The petitioner raised the issue of the constitutional
validity of the practice of the Union of India to appoint the members
of the Election Commission. It was argued in the petition that a fair,
just, and transparent method to select the members of the Election
Commission is missing. The petition also referred to several reports,
which we will discuss in due course, to highlight the issue of bringing
reforms in the selection of members of the Election C ommission. It
was further highlighted that since the appointment of the members
of the Election Commission was solely on the advice of the
parliamentary executive of the Union, which leads to arbitrariness
and is in violation of Article 14 of the Constitut ion. The petition ha s
also suggested that the process of selection of members of the
Election Commission (Chief Election Commissioner/Election
Commissioner) should be transparent and with greater scrutiny,
accountability and stability as it is for the othe r constitutional and
legal authorities including Judges of the Supreme Court and High
Courts, Chief Information Commissioner, Chairpersons and
Members of the Human Rights Commission, Chief Vigilance
Commissioner, Director of Central Bureau of Investigatio n, Lokpal,
Members of the Press Council of India. The writ petition made a
prayer for issuing of mandamus to the Union Government to make
law for ensuring a transparent process of selection by constituting a
neutral and independent committee to recommend t he names of
Chief Election Commissioner/ Election Commissioners. Vide order
dated 23 October, 2018, a two Judge Bench of this Court emphasized
on the importance of the matter, and referred the matter under
Article 145(3) of the Constitution to the Constitut ional Bench. The
order is reproduced as follows:
“The matter relates to what the petitioner perceives to be a
requirement of having a full -proof and better system of appointment
of members of the Election Commission.
Having heard the learned counsel for the petitioner and the learned
Attorney General for India we are of the view that the matter may
require a close look and interpretation of the provisions of Article
324 of the Constitution of India. The issue has not been debated and
answered by this Cour t earlier. Article 145 (3) of the Constitution of
India would, therefore, require the Court to refer the matter to a
Constitution Bench. We, accordingly, refer the question arising in
the present proceedings to a Constitution Bench for an authoritative
pronouncement. Post the matter before the Hon’ble the Chief Justice
of India on the Administrative Side for fixing a date of hearing.”
4. A couple of similar writ petitions were tagged with the above
petition. On 29 September 2022, this Constitution Bench st arted the
hearing of the case. The Bench sat for several days hearing the
arguments of the petitioner side and of the Union government and
Election Commission of India on the respondents ’ side.
5. The Union Government has opposed this group of petitions on
the premise that the Court must respect the principle of separation
of power between different organs of the State and should refrain
from interfering in the selection process of the Election Commission
under Article 324. It was argued by the Union that A rticle 324 of the
Constitution conferred the power to appoint Election Commissioners
solely upon the Parliament. He made a reference to the Election
Commission (Conditions of Service of Election Commissioners and
Transaction of Business) Act, 1991 (hereina fter being referred to as
the “Act 1991”) to emphasize his point that the Parliament being
cautious of its responsibility protected the condition of service of the
Chief Election Commissioner/ Election Commissioners.
6. The learned Attorney General Mr. R. Venkataramani suggested
that the absence of any law does not mean that a constitutional
vacuum exists, calling for the interference of the Court. It was also
argued by the learned Attorney General that the appointment of the
members of the Election Commiss ion by the President has not
damaged the process of free and fair elections.
7. The learned Solicitor General Mr. Tushar Mehta argued that if
there are lacunas in the process of selection/ appointment of Election
Commission , then it is for the Parliament a nd not the Court to look
into the issues. The learned counsel further argued that the
appointment of the Election Commissioners is to be made by the
President, therefore it is not open to the judiciary to interfere with the
power of the executive. Mr. Meht a further argued that there is
something called “independence of the executive” which must not be
interfered with. It was also argued by the counsel for the Election
Commission that since the right to vote is a statutory right and not a
fundamental right, so it does not call any interference for violation of
fundamental rights.
8. It was raised by the petitioners that the issue of appointment of
Election Commission is linked not just with the right to vote but with
the conception of free and fair elections . Reference was also made to
the selection processes in other jurisdictions to emphasize on the
point that a larger set of parameters or factors play an important role
in appointment of Commissioners. Points were also debated
regarding the term of the Chief Election Commissioner /Election
Commissio ners, and the process of removal of Election
Commissioners. The petitioners further argued that there must be
constitutional safeguards in the term and tenure of the Election
Commissioners, so that they can function independently.
9. This case not only raises certain fundamental questions about
the interpretation of Article 324 of the Constitution but also forces
us to look at the larger perspective about how the process of selection
of Election Commission is linked with the working of a democracy,
the right to vote, idea of free and fair elections, and the importance
of a neutral and accountable body to monitor elections. This Court
ought to make a discussion on these interconnected debatable issues
raised for our consideration. All these points ar e indeed sacrosanct
for democracy and for maintaining the independence of the Election
Commission.
II. Election Commission of India
10. Article 324 (1) provides that the power of superintendence,
direction, and control of the preparation of the electoral r olls for, and
the conduct of, elections to Parliament and to the Legislature of every
State and of elections to the offices of President and Vice -President
held under the Constitution is vested in the Election Commission.
11. As to the composition of the E lection Commission, Article 324(2)
provides that the Election Commission shall consist of the Chief
Election Commissioner and such number of other Election
Commissioners, if any, as the President may from time to time fix ,
and the appointment of the Chief Election Commissioner and other
Election Commissioners , subject to the provisions of any law made
in that behalf by the Parliament, be made by the President.
12. By an order dated 1st October 1993, the President has fixed the
number of Election Commission ers as two, until further orders. The
current composition of the Election Commission is that of Chief
Election Commissioner and two Election Commissioners.
13. Article 324(3) provides that the Chief Election Commissioner
shall act as the Chairman of the El ection Commission.
14. As regards the service conditions, Article 324(5) provides that
subject to the provisions of any law made by Parliament, the
conditions of service and tenure of office of the Election
Commissioners and the Regional Commissioners shall be determined
by the rules made by the President . In exercise of its power under
Article 324(5), the Parliament has enacted the Act 1991.
15. The provisos to Article 324(5) provide the mechanism for
removal of Chief Election Commissioner, Election Commissioners,
and Regional Commissione r. The first proviso to Article 324(5)
provides that the Chief Election Commissioner shall not be removed
from his office except in like manner and on the like grounds as a
Judge of the Supreme Court and the conditions of service of the Chief
Election Comm issioner shall not be varied to his disadvantage after
his appointment. Furthermore, any other Election Commissioner or
a Regional Commissioner, according to the second proviso to Article
324(5), shall not be removed from office except on the
recommendatio n of the Chief Election Commissioner.
16. The facility of support staffs of the Election Commission has
been covered under Article 324(6), which provides that the President,
or the Governor of a State, shall, when so requested by the Election
Commission, make available to the Election Commission or to a
Regional Commissioner such staff as may be necessary for the
discharge of the functions conferred on the Election Commission.
17. The question that emerges for consideration is what
interpretation needs to be afforded to the above -discussed provisions,
so that the independence of the Election Commission is ensured.
Before dealing with that, we shall deal with the necessity of the
independence which is imperative of the Election Commission.
III. Why an independen t Election Commission is Necessary
A. “Working a Democratic Constitution ”1
18. The basic perception of democracy is that it is a government by
the people, of the people, and for the people. “People” is the central
axis on which the concept of democracy revolves. The establishment
of democracy has been linked with the idea of welfare of the people.
Dr BR Ambedkar had once noted that democracy means “a form and
a method of government whereby revolutionary changes in the
economic and social life o f the people are brought about without
bloodshed.”2 Democracy is thus linked with the realization of the
aspirations of the people.
1 Borrowed from the title of the classic book - Granville Austin, Working a Democratic Constitution: A
History of the Indian Experience, Oxford University Press.
2 Babasaheb Ambedkar: Writings and Speeches , Vol. 17 Part III, page 475
19. According to the celebrated philosopher John Dewey,
“Democracy is not simply and solely a form of government, but a
social and personal ideal”, in other words, it is not only a property of
political institutions but of a wide range of social relationships.3
Democracy is thus about collective decision -making. The principles
of democracy have been held as a part of the basic structure of the
Constitution.4
20. The Indian Constitution establishes a constitutional
democracy. The Preamble to the Constitution clearly lays down the
vision and creates an outline of the structure of democracy that India
envisaged to be, right at the moment of independence. The Preamble
to the Indian Constitution begins with the phrase “We, the People of
India”. This clearly indicates that the foundations of the future of the
Indian Constitution and democracy begin with the people of India at
the core. The phrase also means that the peo ple of India would be in
a deciding position to choose the governments they want. The phrase
also highlights that the structures of governance which were being
created by the Constitution were supposed to act towards the welfare
of the people. The Preamble provides that the people of India have
3 https://plato.stanford.edu/entries/dewey -political/
4 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another , (1973) 4 SCC 225
resolved to constitute India into a “SOVEREIGN SOCIALIST
defined the collective vision of not only the founders of the Indian
Constitution but also the collectiv e destiny of the people of India.
These words also denote the kind of democratic structures that we
were going to create. The word “DEMOCRATIC” in the Preamble is
interlinked with the words preceding and succeeding it, that is
Preamble also provides that the people of India are securing for its
citizens “JUSTICE social, economic and political ”. The word
“JUSTICE” manifests the vision of undoing hundreds of years of
injustice that was prevalent on Indian s oil. Justice was to be based
on three components: social, economic, and political.
21. Democracy was established in India to fulfill the goals which
have been significantly encapsulated in the terms of the Preamble.
The institutions which were set up were given a role and duty to fulfill
the task as enshrined in the Preamble and the Constitution. While
the three main pillars of the State rest on the legislature, executive,
and judiciary have their designated roles, the Constitution framers
were also visiona ry in the sense that they envisaged the creation of
other institutions, which would be independent in nature and would
facilitate the working of the three pillars by either demanding
accountability or by taking on roles which would maintain the faith
of th e people in the three pillars of democracy. The Election
Commission of India is one such institution that has been created
through the text of the Constitution. It is constitutionally an
independent body. The role of the Election Commission of India is to
ensure that the democratic process in India does not come to a
standstill. The task conferred on the Election Commission is
enormous. It has to ensure that periodical elections keep on
happening.
22. India has chosen a system of direct elections. This mean s that
elections are supposed to happen at regular intervals where the
people of India directly participate by exercising their right to vote.
The Constitution also provides for elections where the representatives
of the people are chosen by an indirect me thod. These include the
elections for the post of President and Vice -President and the
members of State Legislative Councils. The task to maintain the
sanctity of the elections is supposed to be carried out by the Election
Commission in a fair, transparent and impartial manner , and
without any bias or favour. The Election Commission has been given
a wide range of powers towards “s uperintendence, direction, and
control” over the conduct of all elections to Parliament and the
Legislature of every State and of elections to the offices of President
and Vice -President held under this Constitution. The three words
“superintendence”, “direction”, and “control” have not been de fined in
the Constitution but were used in a sense to give the widest
responsibility to the Election Commission. In that sense, the Election
Commission becomes one of the most important as well as central
institutions for preserving and promoting the democ ratic process and
the structures of democracy on Indian soil. The role of the Election
Commission takes much more relevance given the fact that how the
Indian society and polity used to traditionally behave. As a chief
architect of the constitution, Dr. B. R. Ambedkar once said
“Democracy in India is only a top -dressing on an Indian soil, which
is essentially undemocratic.”5
23. The Election Commission performs its role to ensure that every
person in the society is able to participate in the process of elections
to select the government. Therefore, the Election Commission in its
5 Constituent Assembly Debates, 4 November 1948,
working needs to demonstrate the highest degree of transparency
and accountability. The decisions taken by the Election Commission
need to generate the trust of the people so that th e sanctity of the
democratic process is maintained. If the Election Commission starts
showing any arbitrary decision -making, then the resulting situation
would not just create doubt on the members of the Election
Commission of being biased but would create fear in the minds of the
common citizens that the democratic process is being compromised.
Therefore, the Election Commission needs to be independent and
fully insulated from any external or internal disrupting environment.
The working of the Commission h as to generate confidence in the
minds of the people. In a country like India, where millions of people
still struggle to fulfill their basic needs, it is their right to vote which
gives them hope that they would elect a government that would help
them in crossing the boundaries of deprivation. If this power is
compromised or taken away even by one slight bad decision or biases
of the members of the Election Commission, it would undoubtedly
attack the very basic structure of Indian democracy. The Indian
democracy has succeeded because of the people's faith and
participation in the electoral process as well as the everyday work of
the institution. As a constitutional court of the world’s largest
democracy, we cannot allow the dilution of people’s faith in
democratic institutions. The country gained and adopted democracy
after decades of struggle and sacrifices, and the gains received by us
cannot be given away because the institutions still continue to
operate in an opaque manner.
24. A nine -judge bench of th is Court in the case of K.S.
Puttaswamy and Another v. Union of India and Others6 held:
“Opacity enures to the benefit of those who monopolize scarce
economic resources. On the other hand, conditions where civil and
political freedoms flourish ensure that governmental policies are
subjected to critique and assessment. It is this scrutiny which sub -
serves the purpose of ensuring that socio -economic benefits actually
permeate to the underprivileged for whom they are meant.
Conditions of freedom an d a vibrant assertion of civil and political
rights promote a constant review of the justness of socio -economic
programmes and of their effectiveness in addressing deprivation and
want. Scrutiny of public affairs is founded upon the existence of
freedom.”
25. Indian democracy will work only when the institutions which
have the responsibility to preserve democracy work. Each institution
in our Constitution has its demarcated role, which can only be
fulfilled if the people who are running these institutions are
responsible. The people who run these institutions need to be
accountable to the people , and therefore the process of selecting them
has to ensure the independence of the institution.
26. Democracy is not an abstract phenomenon. It has been given
effect by a range of processes. The perception and trust in
institutions are important parameters on which the working of
democracy is assessed. The success of democracy, thus, depends on
the working of institutions that support the pillars of the structure of
democracy.
27. Accountability of institutions provides legitimacy not only to the
institutions themselves, but also to the very idea of democracy. That
is to say, if the institutions are working in a fair and transparent
manner, then the citizens would be assured that democracy is
working. In that sense, democracy is a means to check on
officeholders and administrators and to call them to account.
Therefore, the norms and rules governing these institutions cannot
be arbitrary or lack transparency.
28. To strengthen the democratic processes, the institution of the
Election Commission need s to be independent and demonstrate
transparency and accountability. This reason is enough in itself to
call this Court to examine the institutional structure of the Ele ction
Commission of India.
B. Right to Vote
29. The working of democracy depends on whether the people can
decide the fate of the elected form of government. It depends on the
choices which people make in different ways. This choice of people
cannot be co mpromised, as their mandate in elections changes the
destinies of government. India is democratic because the people
govern themselves. It is a republic because the government’s power
is derived from its people. Through the electoral process and voting,
citizens participate in democracy. By voting, citizens take part in the
public affairs of the country. Thus, citizens by voting enjoy their right
to choose the composition of their government. It is their choice, and
their ability to participate. A nine -judge bench in the case of K.S.
Puttaswamy (Supra) held:
“... it must be realised that it is the right to question, the right to
scrutinize and the right to dissent which enables an informed
citizenry to scrutinize the actions of government. Those who are
governed are entitled to question those who govern, about the
discharge of their constitutional duties including in the provision of
socio -economic welfare benefits. The power to scrutinize and to
reason enables the citizens of a democratic polity to make informed
decisions on basic issues which govern their rights.”
30. The right to vote is now widely recognized as a fundamental
human right.7 However, this was not always the case. The history of
the adult franchise tells us that it was limited to the privileged in
society.8 It took several decades of struggles by marginalized
communities to gain the right to vote. The right to vote is so intrinsic
to the practice of democracy .
31. It has been argued by the counsel for the Election Commission
of India, that the right to vote is merely a statutory right, and since
no fundamental right is violated, it does not call the attention of this
Court. This Court does not agree with the view ar gued by the Election
Commission. Furthermore, it becomes necessary to look at the
Constituent Assembly Debates to examine the scope of the right to
vote.
32. The demand for the adult franchise was consistently raised by
several Indian leaders. In their d rafts prepared for the consideration
of the Constituent Assembly, Dr. BR Ambedkar9 and KT Shah10 had
7 https://www.ohchr.org/en/elections
8 BR Ambedkar, “Evidence before the Southborough Committee”, in Babasaheb Ambedkar: Writings and
Speeches, published by Government of India, Vol. 1, pages 243 -278
9 BR Ambedkar, “States & Minorities”, in Babasaheb Amb edkar: Writings and Speeches, published by
Government of India, Vol. 1., pages 381 -541
10 B. Shiva Rao, The Framing of India's Constitution, Select Documents , Vol. 2, at Page 54 (hereinafter
“Shiva Rao”)
proposed the incorporation of the right to vote in the fundamental
rights portion. This proposal was initially endorsed in the initial draft
report of the Fundamental Rights Sub -Committee, which was a part
of the Advisory Committee of the Constituent Assembly.11 The draft
provision also included a sub -clause on an independent Election
Commission. Reproduced as follows:
1. “Every citizen not below 21 years of a ge shall have the right to vote
at any election to the Legislature of the Union and any unit thereof,
or, where the Legislature is bicameral, to the lower chamber of the
Legislature, subject to such disqualifications on the ground of
mental incapacity, cor rupt practice or crime as may be imposed, and
subject to such qualifications relating to residence within the
appropriate constituency, as may be required by or under the law.
2. The law shall provide for free and secret voting and for periodical
elections to the Legislature.
3. The superintendence, direction and control of all elections to the
Legislature whether of the Union or the unit, including the
appointment of Election Tribunals shall be vested in an Election
Commission for the Union or the un it, as the case may be, appointed
in all cases, in accordance with the law of the Union.”
33. This shows that the Framers envisaged that the right to vote
must be accompanied by a provision establishing the Election
Commission. Constitutional Adviser B.N. Rau’s note on the draft
provision explains the inclusion of the right to vote as a fundamental
right: “Clause 12. This secures that the right to vote is not refused to
11 Shiva Rao, at pages 137 & 139 (dated 03.04.1947)
any citizen who satisf ies certain conditions. The idea of an Election
Commission to supervise, direct and control all elections is new. ”12
34. KT Shah however objected to the idea of a centralized Election
Commission. He argued that, “if adopted, would be a serious
infringement of the rights of Provincial Autonomy; and as such , I
think it ought to be either dropped or reworded, so as not to prejudice
the rights of the Provincial Legislature to legi slate on such
subjects.”13 The clause on right to vote and the creation of the
Election Commission as part of the fundamental rights was then
accepted by a majority vote by the Fundamental Rights Sub -
Committee.14 The clause was then forwarded to the Advis ory
Committee in the “Report of the Sub -Committee on Fundamental
Rights” dated April 16, 1947.15
35. The draft prepared by the Fundamental Rights Sub -Committee
was examined by the Minorities Sub -Committee to see if any rights
proposed needed to be “amplified or amended” to protect minority
rights.16 In the Minutes of the Meeting of the Minorities Sub -
12 Shiva Rao, page 148
13 ibid, page 155
14 Ibid, pa ge 164
15 Ibid, p. 173. Furthermore , the ground for contrary views was only that the right was being extended t he
States/units. See “Minutes Of Dissent To The Report” dated April 17 -20, 1947 by KM Panikkar, page 187
16 ibid, page 199
Committee dated April 17, 1947, there wer e two suggestions on the
fundamental right to vote and Election Commission. S.P. Mukherjee
proposed, “Minorities should be adequately represented on the
Election Commissions proposed for the Union and the units”.17
Jairamdas Daulatram suggested that “such bodies should be made
neutral so that they may inspire confidence among all parties and
communities. Separate representation for the minorities may not be
workable.”18 It was also decided by the Minorities Sub -Committee on
April 18, 1947 “to mention in [th eir] report that the Election
Commission should be an independent quasi -judicial body.”19
36. After the clause on the right to vote passed by the Fundamental
Rights Sub -Committee and the Minorities Sub -Committee reached
for consideration before the Adviso ry Committee, there was a serious
debate on whether to keep the clause in the fundamental rights
chapter or not. Dr. Ambedkar argued for retaining it as a
fundamental right.20 He stated:
“… so far as this committee is concerned my point is that we should
support the proposition that the committee is in favour of adult
suffrage. The second thing we have guaranteed in this fundamental
right is that the elections shall be free and the electio ns shall be by
17 ibid, page 201
18 ibid, page 201
19 ibid, page 205
20 ibid, page 247
secret voting. It shall be by periodical elections... The third
proposition which this fundamental clause enunciates is that in
order that elections may be free in the real sense of the word, they
shall be taken out of the hands of the Gover nment of the day, and
that they should be conducted by an independent body which we
may here call an Election Commission.”21
37. But this view was disagreed with by several members of the
Advisory Committee. They had an apprehension that such a clause
may be objected to in the Constituent Assembly by the
representatives of the Princely States.22 C. Rajagopalachari expressed
that the future method of elections was not clear, and hence it was
not right to keep a detailed clause on the franchise in the
fundamental rights. He said:
“My only point is whether it is proper to deal with this as a
fundamental right or whether we should leave it, or a greater part of
it, for the consideration of the whole Assembly. I submit we cannot
take it for granted that the Union Legislature shall be elected by the
direct vote from all citizens from all India. I t may be a Federation
Constitution. It may be indirectly elected. The Government of the
Union may be formed indirectly, so that we cannot assume that
every adult or any one whatever the description may be, shall have
a direct vote to the Legislature. We ca nnot lay down a proposition
here without going into those details. We cannot therefore deal with
the subject at all now. Whether there is going to be direct election or
indirect election, that must be settled first.”23 (sic)
38. Dr. Ambedkar tried to res olve the opposition to this clause by
arguing that:
21 ibid, page 249-250
22 Statement of Sardar Patel, p. 249
23 ibid, page 250
“My reply is that this document or report will go before the
Constituent Assembly. There will be representatives of the States;
there will be representatives of the Muslim League. We shall hear
from them what objection they have to adult suffrage. If the w hole
Constituent Assembly is convinced that while it may be advisable to
have adult suffrage for British India, for reasons of some special
character, the Indian States cannot have adult suffrage, and there
must be some sort of a restricted suffrage, it wi ll be still open to the
Constituent Assembly to modify our proposals.”24
39. Govind Ballabh Pant explained the reason why there was a
concern regarding inclusion of the right to vote in the fundamental
rights chapter. He said:
“The only apprehension is that some people belonging to the States
may prick the bubble and say that their rights have been i nterfered
with and so on. They may not be represented. We will have what we
desire.”25
40. In response to Pant, the following reply was given by Dr
Ambedkar :
“While we are anxious that the Indian States should come in, we
shall certainly stick to certain principles and not yield simply to
gather the whole lot of them in our Constitution.”26
41. As an alternative, Govind Ballabh Pant suggested that “this very
clause is sent to the Constituent Assembly, not as part of these
fundamental rights, but i ncluded in the letter of the Chairman to the
24 ibid, page 250
26 ibid, page 251
effect that we recommend to the Constituent Assembly the following
principles in regard to the framing of the Constitution.”27 While Dr.
Ambedkar insisted on his view, the majority of members of the
Advisory Committee including Sardar Patel adopted Pant’s
suggestion.28
42. Accordingly, in the “Minutes of the Meetings of the Advisory
Committee” dated April 21, 1947, it was noted: “Clause 13 to be
deleted from the fundamental rights, but it should be recommended
by the Chairman in his report to the Constituent Assembly on behalf
of the committee, that it be made a part of the Union Constitution.”29
In his letter addressed to the President of the Constituent Assembly ,
Sardar Patel presented the interim report of the Advisory Committee,
while also noting that: “While agreeing in principle with this clause,
we recommend that instead of being included in the list of
fundamental rights, it should find a place in some othe r part of the
Constitution.”30
27 ibid, page 251
28 ibid, page 251-52
29 ibid, page 288
30 ibid, page 296
43. What emerges from this discussion is that there was an initial
agreement among the members of the fundamental rights sub -
committee and the minority rights sub -committee that there needs
to be a clause in the fundamental r ights chapter which should
provide for the right to vote ; and the task to conduct free and fair
elections , there shall be an independent body called the Election
Commission . However, the clause was not retained by the Advisory
Committee as a fundamental right because it was apprehended that
the princely states might not agree to the Union Constitution if that
clause is retained, as India was going through a historical period of
unification where negotiations were being made with the princely
states to become part of a united India. Despite this, the Founders
retained the right to vote as a constitutional right by recommending
that it should find a place in the text of the constitution.
44. On 16 June 1949, Dr. B.R. Ambedkar moved the following
clause, providing for the adult franchise:
“289-B: Elections to the House of the People and to the
Legislative Assemblies of states to be on the basis of adult
suffrage: The elections to the House of the People and to the
Legislative Assembl y of every State shall be on the basis of adult
suffrage; that is to say, every citizen, who is not less than twenty -
one years of age on such date as may be fixed in this behalf by or
under any law made by the appropriate Legislature and is not
otherwise d isqualified under this Constitution or any law made by
the appropriate Legislature on the ground of nonresidence,
unsoundness of mind, crime or corrupt or illegal practice, shall be
entitled to be registered as a voter at any such election.”31
45. The clause was adopted, which later became Article 326 of the
Constitution.
46. By virtue of Article 326, the right to vote became a constitutional
right granted to citizens. The said right was given effect by Section 62
of Representation of the People ( ROP) Act, 1951. Section 62(1) of ROP
Act provides: “No person who is not, and except as expressly provided
by this Act, every person who is, for the time being entered in the
electoral roll of any constituency shall be entitled to vote in that
constituency .” The legal position is that the relevant provision of the
ROP Act is derived from the text of the Constitution, which in this
case, is Article 326.
47. However, the judgments of this Court adopted a restricted view
of the right to vote for a number of d ecades. In N.P. Ponnuswam i v.
Returning Officer, Namakkal Constituency and Others32
(hereinafter “N.P. Ponnuswam i”), a bench of six judges of this Court
was dealing with the question whether the High Court under Article
the 16th June 1949, Available at:
226 can have jurisdiction to interfere with the order of the Returning
Officer by reason of the provisions of Article 329(b) of the
Constitution. While the Court was examinin g the contours of Article
329(b), it also made the following observation: “The right to vote or
stand as a candidate for election is not a civil right but is a creature
of statute or special law and must be subject to the limitations
imposed by it.”
48. A different view was adopted by a Constitution Bench of this
Court in the case of Mohind hr Singh Gill and Another v. Chief
Election Commissioner, New Delhi and Others .33 (hereinafter
“Mohindhr Singh Gill”). The Bench was called on to interpret Articles
324 and 329(b) of the Constitution. It noted:
“The most valuable right in a democratic polity is the 'little man's'
little pencil -marking, accenting and dissenting, called his vote....
Likewise, the little man 's right, in a representative system of
Government to rise to Prime Ministership or Presidentship by use of
the right to be candidate cannot be wished away by calling it of no
civil moment. If civics mean anything to self -governing citizenry, if
participat ory democracy is not to be scuttled by law.... The
straightaway conclusion is that every Indian has a right to elect and
be elected and this is constitutional as distinguished from a common
law right and is entitled to cognizance by Courts, subject to stat utory
Regulations.”
49. However, a subsequent decision of a two -judge bench in Jyoti
Basu and Others v. Debi Ghosal and Others34 (hereinafter “Jyoti
Basu”) relied upon the position taken by N.P. Ponnuswam i (Supra) .
The two -judge bench was dealing with the specific question who may
be joined as a party to an election petition, but went to observe:
“A right to elect, fundamental though it is to democracy, is,
anomalously enough, neither a fundamental right nor a Common
Law Right. It is pure and simple, a statutory right. So is the right
to be elected. So is the right to dispute an election. Outside of
statute, there is no right to elect, no right to be elected and no right
to dispute and election. Statutory creations they are, and therefore,
subject to statutory limitation.”
50. While the above three decisions made statements of the right to
vote, the issue of interpretation of Article 326, dealing with adult
franchise, had not arisen in these cases. Therefore, the statements
made cannot be treated as an authority on the subject.
51. In the case of Union of India v. Association for Democratic
Reforms and Another35 (hereinafter “ ADR” ), this Court was
considering whether there is a right of the voter to know about the
candidates contesting election. Holding in affirmative, it was he ld:
“In democracy, periodical elections are conducted for having efficient
governance for the country and for the benefit of citizens - voters. In
a democratic form of government, voters are of utmost importance.
They have right to elect or re - elect on the basis of the antecedents
and past per formance of the candidate. The voter has the choice of
deciding whether holding of educational qualification or holding of
property is relevant for electing or re -electing a person to be his
representative...”
(emphasis added)
52. Amendments were made to ROP Act after ADR judgment.
Whether the amendments followed the mandate laid down in ADR
were scrutinized by a three -judge bench case of People’s Union for
Civil Liberties (PUCL) and Another v. Union of India and
Another36 (hereinafter “ PUCL 2003”). This Court re-examin ed the
issue of whether a voter has any fundamental right to know the
antecedents/assets of a candidate contesting the election under
Article 19(1)(a). An argument was made before th is Court that a voter
does n ot have such a right, as there is no fundamental right to vote
from which the right to know the antecedents of a candidate arises.
While the three judges (M.B. Shah, Venkatarama Reddi, D.M.
Dharmadhikari, JJ .) unanimously agreed that the voters have a righ t
under Article 19(1)(a) to know the antecedents of a candidate, there
was a difference on whether the scope of the right to vote.
53. Referring to N.P. Ponnuswam i and Jyoti Basu judgments,
Justice MB Shah held that “there cannot be any dispute that the
right to vote or stand as a candidate for election and decision with
regard to violation of election law is not a civil right but is a creature
of statute or special law and would be subject to the limitations
envisage d therein.” He held that, “Merely because a citizen is a voter
or has a right to elect his representative as per the [ROP] Act, his
fundamental rights could not be abridged, controlled or restricted by
statutory provisions except as permissible under the C onstitution.”
He stated that whether the right to vote is a statutory right or not
does not have any implication on the right to know antecedents,
which is a part of fundamental right under Article 19(1)(a). He
however also held that democracy based on adu lt franchise is part of
the basic structure of the Constitution, and that the right of adults
to take part in the election process either as a voter or a candidate
could only be restricted by a valid law which does not offend
constitutional provisions.
54. Justice Venkatarama Reddi emphasized on the right to vote, and
held:
“The right to vote for the candidate of one's choice is of the essence
of democratic polity. This right is recognized by our Constitution and
it is given effect to in specific form by the Representation of the
People Act. The Constituent Assembly debates r eveal that the idea
to treat the voting right as a fundamental right was dropped;
nevertheless, it was decided to provide for it elsewhere in the
Constitution. This move found its expression in Article 326…”
55. He disagreed with the views expressed in N.P. Ponnuswam i and
Jyoti Basu , and held:
“the right to vote, if not a fundamental right, is certainly a
constitutional right. The right originates from the Constitution and
in accordance with the constitutional mandate contained in Article
326, the right ha s been shaped by the statute, namely, R.P. Act.
That, in my understanding, is the correct legal position as regards
the nature of the right to vote in elections to the House of people and
Legislative Assemblies. It is not very accurate to describe it as a
statutory right, pure and simple.”
56. Justice Venkatarama Reddi then distinguished the
constitutional right to vote with the act of giving vote/freedom of
voting. He held:
“a distinction has to be drawn between the conferment of the right
to vote on fulfillment of requisite criteria and the c ulmination of that
right in the final act of expressing choice towards a particular
candidate by means of ballot. Though the initial right cannot be
placed on the pedestal of a fundamental right, but, at the stage when
the voter goes to the polling booth a nd casts his vote, his freedom to
express arises. The casting of vote in favour of one or the other
candidate tantamounts to expression of his opinion and preference
and that final stage in the exercise of voting right marks the
accomplishment of freedom o f expression of the voter. That is where
Article 19(1)(a) is attracted. Freedom of voting as distinct from right
to vote is thus a species of freedom of expression and therefore
carries with it the auxiliary and complementary rights such as right
to secure information about the candidate which are conducive to
the freedom. None of the decisions of this Court wherein the
proposition that the right to vote is a pure and simple statutory right
was declared and reiterated, considered the question whether the
citizen's freedom of expression is or is not involved when a citizen
entitled to vote casts his vote in favour of one or the other
candidate…”
In his conclusions, he noted:
“The right to vote at the elections to the House of people or
Legislative Assembly is a constitutional right but not merely a
statutory right; freedom of voting as distinct from right to vote is a
facet of the fundamental right enshrined in Article 19(1)(a). The
casting of vote in favour of one or the other candidate marks the
accomplishment of freedom of expression of the voter.”
57. Justice DM Dharmadhikari expressed his agreement with the
view taken by Justice Venkatarama Reddi, thus making it a majority
decision holding that the right to vote is a constitutional right. Even
Justice Shah had held that the right of adults to take part in the
election process as a voter could only be restricted by a valid law
which does not offend constitutional provisions.
58. An argument based on the majority view in PUCL 2003 was put
forth before a Constitution Bench of this Court in Kuldip Nayar and
Others v. Union of India and Others37 (hereinafter “ Kuldip Nayar” ).
It was argued that a right to vote is a constitutional right besides that
it is also a facet of fundamental right under Article 19(1)(a) of the
Constitution. The Constitution bench rejected the argument. It was
held:
“The argument of the petitioners is that the majorit y view in the case
of People's Union for Civil Liberties, therefore, was that a right to
vote is a constitutional right besides that it is also a facet of
fundamental right under Article 19(1)(a) of the Constitution.
We do not agree with the above submission. It is clear that a fine
distinction was drawn between the right to vote and the freedom of
voting as a species of freedom of expression, while reiterating the
view in Jyoti Basu v. Debi Ghosal (supra) that a right to elect,
fundamental though it is to democracy, is neither a fundamental
right nor a common law right, but pure and simple, a statutory right.
Even otherwise, there is no basis to contend that the right to vote
and elect representatives of the State in t he Council of States is a
Constitutional right. Article 80(4) merely deals with the manner of
election of the representatives in the Council of States as an aspect
of the composition of the Council of States. There is nothing in the
Constitutional provisio ns declaring the right to vote in such election
as an absolute right under the Constitution. ”
59. The Constitution Bench in Kuldip Nayar seems to have missed
the point that Justice Venkatarama Reddi’s opinion in PUCL 2003
that the right to vote is a cons titutional right was explicitly concurred
by Justice Dharmadhikari. Therefore, Kuldip Nayar’s view that
PUCL 2003 considered the right to vote/elect as a statutory right
does not seem to portray the correct picture.
60. In Desiya Murpokku Dravida Kazhagam and Another v.
Election Commission of India,38 a three -judge bench was
considering a challenge to the constitutional validity of the
amendment of the Election Symbols (Reservation and Allotment)
Order, 1968, which mandated that in order to be recognized as a
State party in the State, a political party would have to secure not
less than 6% of the total valid votes polled in the State and should
also have returned at least 2 members to the Legislative Assembly of
the State. The counsel for the Election Commission of India in the
case had argued that since the right to vote was a statutory right, it
could not be questioned by way of a writ petition. The majority by 2 :1
upheld the amendment. However, Justice Chelameswar wrote a
dissenting opinion. The dissenting judge also addressed the counsel
for the Election Commission of India that the right to vote is merely
a statutory right. He held:
“The right to elect flows from the language of Articles 81 and 170
r/w Articles 325 and 326. Article 326 mandates that the election to
the Lok Sabha and legislative Assemblies shall be on the basis of
Adult Suffrage, i.e., every citizen, who is of 18 years of age and is not
otherwise disqualified either under the Constitution or Law on the
ground specified in the Article Shall Be entitled to be registered as a
voter. Article 325 mandates that there shall be one general electoral
roll for every territorial co nstituency. It further declares that no
person shall be ineligible for inclusion in such electoral roll on the
grounds only of religion, race, caste, sex, etc. Articles 81 and 170
mandate that the members of the Lok Sabha and Legislative
Assembly are requi red to be Chosen by Direct Election from the
territorial constituencies in the States. The States are mandated to
be divided into territorial constituencies under Articles 81(2) (b) and
170(2)17. The cumulative effect of all the above mentioned
provisions is that the Lok Sab ha and the Legislative Assemblies are
to consist of members, who are to be elected by all the citizens, who
are of 18 years of age and are not otherwise disqualified, by a valid
law, to be voters. Thus, a Constitutional right is created in all
citizens, wh o are 18 years of age to choose (participate in the
electoral process) the members of the Lok Sabha or the Legislative
Assemblies. Such a right can be restricted by the appropriate
Legislature only on four grounds specified under Article 326.”
61. Justice Chelameswar also clarified that the question whether the
right to vote or contest at any election to the Legislative Bodies created
by the Constitution did not arise in the case of N.P. Ponnuswam i,
which is cited as an authority on the right to vote. He n oted:
“With due respect to their Lordships, I am of the opinion that both
the statements (extracted above) are overbroad statements made
without a complete analysis of the scheme of the Constitution
regarding the process of election to the Legislative Bodies ado pted in
subsequent decisions as a complete statement of law. A classical
example of the half truth of one generation becoming the whole truth
of the next generation.”
62. The majority decision in this case did not record any
disagreement regarding the conclusion that the right to participate
in the electoral process, either as a voter or as a candidate, is a
constitutional right.
63. In 2013, the correctness of ADR and PUCL 2003 was doubted
before a three judge -bench of this Court in Peopl e’s Union for Civil
Liberties and Another v. Union of India and Another39 (PUCL
2013) . In this case, the validity of certain rules of the Conduct of
Election Rules, 1961 to the extent that these provisions violate the
secrecy of voting which is fundamental to the free and fair elections.
It was put forward that the Constitution bench judgment in Kuldip
Nayar created a doubt on ADR and PUCL 2003. The three -judge
bench in PUCL 2013 held that “Kuldip Nayar does not overrule the
other two decisions rather it only reaffirms what has already been
said by the two aforesaid decisions”. However, the three -judge bench
went on to note that:
“… there is no contradiction as to the fact that right to vote is neither
a fundamental right nor a Constitutional right but a pure and simple
statutory right. The same has been settled in a catena of cases and
it is clearly not an issue in dispute in the present case. ”
64. While the scope of the right to vote was not before PUCL 2013 ,
but it went on to observe that the right to vote is only a statutory
right. But, the three -judge bench in PUCL 2013 followed ADR and
PUCL 2003 to reiterate that “[t] he casting of the vote is a facet of the
right of expression of an individual and the said right is provided
under Article 19(1)(a) of the Constitution of India”, and therefore, a
prima facie case existed for the exercise of jurisdiction of this Court
under Article 32. The bench conc luded that:
“No doubt, the right to vote is a statutory right but it is equally vital
to recollect that this statutory right is the essence of democracy.
Without this, democracy will fail to thrive. Therefore, even if the right
to vote is statutory, the si gnificance attached with the right is
massive. Thus, it is necessary to keep in mind these facets while
deciding the issue at hand.”
65. A clarity on the status of the right to vote was given in the
judgment in Raj Bala v. State of Haryana and Others .40 Justice
Chelameswar and Justice Sapre gave separate concurring opinions.
After analysing the previous decisions of this Court, Justice
Chelameswar came to the conclusion that “every citizen has a
constitutional right to elect and to be elected to either Parliament or
the State legislatures.” Justice Sapre reiterated the view taken in
PUCL 2003 that the “right to vote” is a constitutional right but not
merely a statutory right.
66. What emerges from this detailed discussion is that there has
been a conflicting view on the status of the right to vote. This gives
an opportunity for us to authoritatively hold that the right to v ote is
not just a statutory right. In our view, we must look beyond that. Our
decision to analyse the contours of the right to vote is facilitated by
the reasoning provided by the nine -judge bench in K.S. Puttaswamy.
In that case, a plea was made that sinc e privacy was not included as
a fundamental right in the original Constitution, it cannot be
declared a fundamental right. The bench rejected this argument, and
held:
“it cannot be concluded that the Constituent Assembly had
expressly resolved to reject th e notion of the right to privacy as an
integral element of the liberty and freedoms guaranteed by the
fundamental rights... The interpretation of the Constitution cannot
be frozen by its original understanding. The Constitution has
evolved and must continu ously evolve to meet the aspirations and
challenges of the present and the future.”
67. In the instant case, the provision on adult franchise is in Article
326 of the Constitution. An analysis of Constituent Assembly
Debates shows that it was initially co nsidered as a fundamental right
in the proceedings of the Advisory Committee. The only reason why
it was shifted from fundamental rights status to another
constitutional provision was that the founders did not want to offend
the Princely States, with whom they were negotiating to be a part of
a united India. Otherwise, they had stressed the importance of the
right to vote and universal adult franchise. Seventy -five years after
Independence, we have the opportunity to realize their absolute
vision by recogni zing what they could not due to socio -political
circumstances of their time. When the Constitution came into force,
what were known as Princely States became a part of India, and
accepted direct elections as a method of choosing the government.
These areas have now been included in different states. Therefore,
there has been no objection to the right to vote.
68. The right to take part in the conduct of public affairs as a voter
is the core of the democratic form of government, which is a basic
feature of the Constitution. The right to vote is an expression of the
choice of the citizen, which is a fundamental right under Article
19(1) (a). The right to vote is a part of a citizen's life as it is their
indispensable tool to shape their own destinie s by choosing the
government they want. In that sense, it is a reflection of Article 21.
In history, the right to vote was denied to women and those were
socially oppressed. Our Constitution took a visionary step by
extending franchise to everyone.41 In th at way, the right to vote
enshrines the protection guaranteed under Article 15 and 17.
Therefore, the right to vote is not limited only to Article 326, but flows
through Article 15, 17, 19, 21 . Article 326 has to be read along with
these provisions. We the refore declare the right to vote in direct
elections as a fundamental right, subject to limitations laid down in
41 https://journals.library.brandeis.edu/index.php/caste/article/view/282/63
Article 326. This Court has precedents to support its reasoning. In
Unnikrishnan J.P. and Others v. State of Andhra Pradesh and
Others ,42 this Court read Article 45 and 46 along with Article 21 to
hold that the right to education is a fundamental right for children
between the age group of 6 -14.
69. Now that we have held that the right to vote is not merely a
constitutional right, but a component of Part III of the Constitution
as well, it raises the level of scrutiny on the working of the Election
Commission of India, which is responsible for conducting free and
fair elections. As it is a question of constitutional as well as
fundamental rights, this Court needs to ensure that the working of
the Election Commission under Article 324 facilitates the protection
of people’s voting rights.
C. Free and Fair Elections
70. Democracy works when the citizens are given a chance to decide
the fate of the ruling government by casting their vote in periodical
elections. The faith of the citizens in the democratic processes is
ensured by conducting free and fair elections through a n
independent and neutral agency.
71. Free and fair elections have been enshrined as a precedent for
the working of democracy in global conventions and rights -based
frameworks. The Universal Declaration of Human Rights 1948
recognizes that:
“1. Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
2. Everyone has the right of equal access to public service in his
country.
3. The will of the people shall be the basis of the authority of
government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall
be held by secret vote or by equivalent free voting procedures.”43
72. Article 25 of the International Covenant on Civil and Political
Rights provides:
“Every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in article 2 and without unreasonable
restrictions:
(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression o f the will of the electors;
(c) To have access, on general terms of equality, to public service in
his country.”
43 Article 21, Universal Declaration of Human Rights
73. India is committed to these international frameworks. This
Court has previously read India’s obligation to international
frameworks to recognise new areas of constitutional discourse, which
are explicitly not covered by the provisions of the Constitution or
where there is a constitutional vacuum.44 But free and fair elections
have been recognised as an essential feature of t he democratic
apparatus by the judgments of this Court as well.
74. In Indira Nehru Gandhi Smt v. Shri Raj Narain and
Another ,45 Justice HR Khanna held in his opinion:
“All the seven Judges [in Kesavananda Bharti case] who constituted
the majority were also agreed that democratic set -up was part of the
basic structure of the Constitution. Democracy postulates that there
should be periodical election, so that people may be in a position
either to re -elect the old representatives or, if they so choose, to
change the representatives and elect in their place other
representative. Democracy further contemplates that the elections
should be free and fair, so that the voters may be in a position to
vote for candidates of their choice. Democracy can indeed function
only upon the faith that elections are free and fair and not rigged
and manipulated, that they are effective instruments of ascertaining
popular will both in reality and form and are not mere rituals
calculated to generate illusion of deference to mass opinion. Free
and fail elections require that the candidates and their agents
should not resort to unfair means or malpractices as may impinge
upon the process of free and fair elections.”
44 Vishakha v. State of Rajasthan, AIR 1997 SC 3011
75. For conducting free and fair elections, an independent body in
the form of Election Commission is a must. In Mohind hr Singh Gill,
a Constitution Bench was called to interpret Article 324 and Article
329(b) of the Constitution. emphasized on the connection between
elections and the role of the Election Commission. Justice Krishna
Iyer (speaking for Chief Justice Beg, Justice Bhagwati, and himself)
stated:
“Democracy is government by the people. It is a continual
participative operation, not a cataclysmic, periodic exercise. The
little man, in his multitude, marking his vote at the poll does a social
audit of his Parliament plus political choice of this proxy. Although
the full flower of participative Government rarel y blossoms, the
minimum credential of popular Government is appeal to the people
after every term for a renewal of confidence. So we have adult
franchise and general elections as constitutional compulsions. “The
right of election is the very essence of the constitution” (Junius). It
needs little argument to hold that the heart of the Parliamentary
system is free and fair elections periodically held, based on adult
franchise, although social and economic democracy may demand
much more.”
76. It was emphasized by Justice Krishna Iyer:
“The Election Commission is an institution of central importance
and enjoys far -reaching powers and the greater the power to affect
others' right or liabilities the more necessary the need to hear.”
77. Justice PK Goswa mi in his concurring opinion (for himself & PN
Singhal) held:
“Elections supply the visa viva to a democracy. It was, therefore,
deliberately and advisedly thought to be of paramount importance
that the high and independent office of the Election Commissio n
should be created under the Constitution to be in complete charge
of the entire electoral process commencing with the issue of the
notification, by the President to the final declaration of the result.”
78. Justice Goswami further emphasized on the nee d of
independence of the Election Commission in the following words:
“The Election Commission is a high -powered and independent body
which is irremovable from office except in accordance with the
provisions of the Constitution relating" to the removal of Judges of
the Supreme Court and is intended by the framers of the
Cons titution, to be kept completely free from any pulls and
pressures that may be brought through political influence in a
democracy run on party system.”
79. The importance of periodical elections was also emphasized in
the Constitution Bench decision in Manoj Narula v. Union of
India,46 which held:
“In the beginning, we have emphasized on the concept of democracy
which is the corner stone of the Constitution. There are certain
features absence of which can erode the fundamental values of
democracy. One of them is holding of free and fair election by adult
franchise in a periodical manner… for it is the heart and soul of the
parliamentary system.”
80. Thus, the role of the Election Commission is integral to
conducting free and fair elections towards the wo rking of democracy.
It is the duty and constitutional obligation of this Court to protect
and nurture the independence of the Election Commission.
IV. Constitutional and statutory framework: The Constitutional
Vacuum
81. Article 324 of the Constitution provides that superintendence,
direction and control of elections shall be vested in an Election
Commission. Clause 1 of Article 324 provides:
“The superintendence, direction and control of the preparation of
the electoral rolls for, and the conduct of, all elections to Parliament
and to the Legislature of every State and of elections to the offices of
President and Vice -President held under this Constitution shall be
vested in a Commission (referred to in this Constitution as the
Election Com mission).”
82. The composition of the Election Commission is provided under
Clause (2) of Article 324. It provides:
“The Election Commission shall consist of the Chief Election
Commissioner and such number of other Election Commissioners,
if any, as the President may from time to time fix and the
appointment of the Chief Election Commissioner and other Election
Commissi oners shall, subject to the provisions of any law made in
that behalf by Parliament, be made by the President.”
83. Article 324(3) states that the Chief Election Commissioner shall
act as the Chairman of the Election Commission.
84. Clause (5) of Articl e 324 deals with conditions of service and
tenure of office of the Election Commissioner. It provides that:
“Subject to the provisions of any law made by Parliament, the
conditions of service and tenure of office of the Election
Commissioners and the Regio nal Commissioners shall be such as
the President may by rule determine: Provided that the Chief
Election Commissioner shall not be removed from his office except
in like manner and on the like grounds as a Judge of the Supreme
Court and the conditions of s ervice of the Chief Election
Commissioner shall not be varied to his disadvantage after his
appointment: Provided further that any other Election
Commissioner or a Regional Commissioner shall not be removed
from office except on the recommendation of the Chief Election
Commissioner.”
85. What comes out of this provision is that the Office of the Chief
Election Commissioner stands on a higher constitutional pedestal,
as he is given equivalence to a Judge of the Supreme Court in matters
of removal. The other thing which comes out is that “the conditions
of service of the Chief Election Commissioner shall not be varied to
his disadvantage after his appointment.” That is to say, the
independence cann ot be indirectly diluted by creating unwarranted
conditions of service. Lastly, a wide discretion has been vested with
the Chief Election Commissioner to seek removal of any other
Election Commissioner or a Regional Commissioner.
86. It has been argued be fore us that there exists a constitutional
vacuum in the method of selection of the Chief Election
Commissioner and other Election Commissioners, and nothing has
been provided under Article 324. It has been argued that as the
Executive (through President) is making these appointments, it
reduces the independence of the Election Commission. Furthermore,
it was pointed out that the term and tenure of the Election
Commissioners also need to be streamlined in order to ensure
absolute independence of the Electio n Commission and to prevent
any arbitrary or biased decision to be taken by the Chief Election
Commissioner.
87. It has been argued by the learned Attorney General that the
conditions of service and tenure of the Chief Election Commissioner
and Election Commissioners is already governed by the Act, 1991.
88. The Act provides “the conditions of service of the Chief E lection
Commissioner and other Election Commissioners to provide for the
procedure and for transaction of business by the Election
Commission and for matters] connected therewith or incidental
thereto”. The Act deals with salary (Section 3), tenure/term of office
(Section 4), leave (Section 5), pension (Section 6), and other
conditions of service (Section 8).
89. The term of office provided under Section 4 for the Chief
Election Commissioner or an Election Commissioner is “of six years
from the date on whic h he assumes his office”, subject to the proviso
that “where the Chief Election Commissioner or an Election
Commissioner attains the age of sixty -five years before the expiry of
the said term of six years, he shall vacate his office on the date on
which he attains the said age”. Section 4 thus does not provide a
mandatory 6 years of term.
90. An analysis of the provisions of the Act also indicates that there
is nothing provided in terms of the selection process of the Chief
Election Commissioner or the Ele ction Commissioners. Thus, what
emerges from this discussion is that both Article 324 and the Act ,
1991 are silent on the selection process of the Chief Election
Commissioner and the Election Commissioners. There also appears
to be a lacunae in ensuring in dependence as the Act indirectly
provides a discretion to the Executive to appoint someone close to
retirement at the age of 65 as the Chief Election Commissioner or the
Election Commissioner, and thus will not be able to take the full term
of 6 years.
91. We need to look at the Constituent Assembly Debates to
examine the level of independence which was expected from the
Election Commission. Moving the draft Article on the Election
Commission before the Constituent Assembly on 15 June 1949, Dr
BR Ambedkar e xplained the vision behind the provision was
independence from the executive in conducting elections. Dr
Ambedkar said:
“... the House affirmed without any kind of dissent that in the
interests of purity and freedom of elections to the legislative bodies,
it was of the utmost importance that they should be freed from any
kind of interference from the executive of the day … Therefore, so far
as the fundamental question is concerned that the election
machinery should be outside the control of the executive
Government, there has been no dispute. What Article 289 does is to
carry out that part of the decision of the Constituent A ssembly. It
transfers the superintendence, direction and control of the
preparation of the electoral rolls and of all elections to Parliament
and the Legislatures of States to a body outside the executive to be
called the Election Commission. That is the p rovision contained in
sub-clause (1).”47
92. The reason behind having a permanent office of Chief Election
Commissioner was explained by Dr Ambedkar as follows:
“What the Drafting Committee proposes by sub -clause (2) is to have
permanently in office one man called the Chief Election
Commissioner, so that the skeleton machinery would always be
available. Elections no doubt will generally take place at the end of
five years; but there is this question, namely that a bye -election may
take place at any time. The Assembly may be dissolved before its
period of five years has expired. Consequently, the electoral rolls will
47 Constituent Assembly Debates, 15 June 1949,
have to be kept up to date all the time so that the new election may
take place without any difficulty. It was therefore felt that having
regard to these exigencies, it would be sufficient if there was
permanently in session one officer to be called the Chief Election
Commissioner, while when the elections are coming up, the
President may further add to the machinery by appointing other
members to the Election Commission.”
93. The above statement suggests that the office of the Chief
Election Commissioner requires a kind of permanency, which may be
fulfilled by having someone with a stable full term as the Chief
Election Commission.
94. Regarding the conditions of service, Dr Ambedkar said:
“So far as clause (4) is concerned, we have left the matter to the
President to determine the conditions of service and the tenure of
office of the members of the Election Commission, subject to one or
two conditions, that the Chief Election Commissioner shall not be
liable to be removed except in the same manner as a Judge of the
Supreme Court. If the object of this House is that all matters relating
to Elections should be outside the control of the Ex ecutive
Government of the day, it is absolutely necessary that the new
machinery which we are setting up, namely, the Election
Commission should be irremovable by the executive by a mere fiat.
We have therefore given the Chief Election Commissioner the sam e
status so far as removability is concerned as we have given to the
Judges of the Supreme Court. We, of course, do not propose to give
the same status to the other members of the Commission. We have
left the matter to the President as to the circumstances under which
he would deem fit to remove any other member of the Election
Commission; subject to one condition that -the Chief Election
Commissioner must recommend that the removal is just and
proper.”
95. However, Shibban Lal Saxena pointed out that the draft
provision may favour the Executive in the appointment of the Chief
Election Commissioner and the Election Commissioners, and
therefore appealed for a change in the provision. He argued:
“If the President is to appoint this Commission, naturally it means
that the Prime Minister appoints this Commission. He will appoint
the other Election Commissioners on his recommendations. Now,
this does not ensure their independence. Of course once he is
appoin ted, he shall not be removable except by 2/3rd majority of
both Houses. That is certainly something which can instill
independence in him, but it is quite possible that some party in
power who wants to win the next election may appoint a staunch
party -man as the Chief Election Commissioner. He is removable only
by 2/3rd majority of both Houses on grave charges, which means
he is almost irremovable. So what I want is this that even the person
who is appointed originally should be such that he should be
enjoy ing the confidence of all parties his appointment should be
confirmed not only by majority but by two -thirds majority of both
the Houses…Of course, there is a danger when one party is in huge
majority. Still, if he does appoint a party -man, and the appoint ment
comes up for confirmation in a joint session, even a small opposition
or even a few independent members can down the Prime Minister
before the bar of public opinion in the world.”
96. On 16 June 1949, Hirday Nath Kunzru echoed a similar
sentiment, an d also highlighted the issues regarding the removal of
the Election Commissioners. He said:
“Here two things are noticeable: the first is that it is only the Chief
Election Commissioner that can feel that he can discharge his duties
without the slightest fear of incurring the displeasure of the
executive, and the second is that the removal of the other Election
Commissioners will depend on the recommendations of one man
only, namely the Chief Election Commissioner. However responsible
he may be it seems to me very undesirable that the removal of his
colleagues who will occupy positions as.responsible as those of
judges of the Supreme Court should depend on the opinion of one
man. We are anxious, Sir, that the preparation of the electoral rolls
and the condu ct of elections should be entrusted to people who are
free from political bias and whose impartiality can be relied upon in
all circumstances. But, by leaving a great deal of power in the hands
of the President we have given room for the exercise of politi cal
influence in the appointment of the Chief Election Commissioner
and the other Election Commissioners and officers by the Central
Government. The Chief Election Commissioner will have to be
appointed on the advice of the Prime Minister, and, if the Prim e
Minister suggests the appointment of a party -man, the President will
have no option but to accept the Prime Minister's nominee, however
unsuitable he may be on public grounds.”
97. He warned thus:
“If the electoral machinery is defective or is not efficient or is worked
by people whose integrity cannot be depended upon, democracy will
be poisoned at the source; nay, people, instead of learning from
elections how they should exercise their vote, how by a judicious use
of the ir vote they can bring abo ut changes in the Constitution and
reforms in the administration, will learn only how parties based on
intrigues can be formed and what unfair methods they can
adopt to secure what they want.”
98. Dr Ambedkar agreed with the points made by Saksena and
Kunzru, and said:
“...with regard to the question of appointment I must confess that
there is a great deal of force in what my Friend Professor Saksena
said that there is no use making the tenure of the Election
Commissioner a fixed and secure tenure if there is no provision in
the Constitution to prevent either a fool or a knave or a person who
is likely to be under the thumb of the Executive. My provision —I
must admit —does not contain anything to provide against
nomination of an unfit person t o the post of the Chief Election
Commissioner or the other Election Commissioners…”
99. The solution which Dr Ambedkar gave was that the Constituent
Assembly should adopt as “Instrument of Instructions to the
President”, which may consist of the guidelines according to which
the President has to make the appointments. He said:
“The Drafting Committee had paid considerable attention to this
question because as I said it is going, to be one of our greatest
headaches and as a via media it was thought that if this Assembly
would give or enact what is called an Instrument of Instructions to
the President and provide therein some machinery which it would
be obligatory on the President to consult before making any
appointment, I think the difficulties whi ch are felt as resulting…
may be obviated and the advantage which is contained therein may
be secured.”
100. He, however, added that since he was unsure whether the
Assembly would adopt his suggestion of Instrument of Instructions,
he suggested an amendment to the effect that “The appointment of
the Chief Election Commissioner and other Election Commissioners
shall, subject to the Provisions of any law made in this behalf by
Parliament, be made by the President.” This is incorporated currently
in Ar ticle 324(2). The idea behind this amendment was that the “law
made in this behalf by Parliament” would address the concerns and
fear raised by members of the Constituent Assembly that the
Executive should not have the exclusive say in the appointment of
the Chief Election Commissioner and the Election Commissioners.
However, we find that the Act , 1991 does not cover any aspect
highlighted in the Constituent Assembly. It is for this reason that this
Court needs to lay down certain broader parameters to fill the
constitutional/legislative gap.
V. The Judgment in TN Seshan
101. It would be relevant to quote the following excerpt from the
Constitution -bench judgment of this Court in T.N. Seshan, Chief
Election Comm issioner of India v. Union of India and Others48:
“10. The Preamble of our Constitution proclaims that we are a
Democr atic Republic. Democracy being the basic feature of our
constitutional set -up, there can be no two opinions that free and fair
elections to our legislative bodies alone would guarantee the growth
of a healthy democracy in the country. In order to ensure th e purity
of the election process it was thought by our Constitution -makers
that the responsibility to hold free and fair elections in the country
should be entrusted to an independent body which would be
insulated from political and/or executive interferen ce. It is inherent
in a democratic set -up that the agency which is entrusted the task
of holding elections to the legislatures should be fully insulated so
that it can function as an independent agency free from external
pressures from the party in power o r executive of the day.”
102. In that case, a petition challenged the validity of "The Chief
Election Commissioner and other Election Commissioners (Condition
of Service) Amendment Ordinance, 1993" (hereinafter called 'the
Ordinance’) to amend the Act, 19 91. While upholding the
amendment, the court discussed the role of the election commission
being a multi member body and the relation between CEC and other
ECs. Some important points highlighted were as follows:
“The ECs and the RCs have been assured independence of
functioning by providing that they cannot be removed except on the
recommendation of the CEC. Of course, the recommendation for
removal must be based on intelligible, and cogent considerations
which wo uld have relation to efficient functioning of the Election
Commission. That is so because this privilege has been conferred on
the CEC to ensure that the ECs as well as the RCs are not at the
mercy of political or executive bosses of the day…. If, therefor e, the
power were to be exercisable by the CEC as per his whim and
caprice, the CEC himself would become an instrument of oppression
and would destroy the independence of the ECs and the RCs if they
are required to function under the threat of the CEC reco mmending
their removal. It is, therefore, needless to emphasise that the CEC
must exercise this power only when there exist valid reasons which
are conducive to efficient functioning of the Election Commission.”
Held further:
“15. We have already highligh ted the salient features regarding the
composition of the Election Commission. We have pointed out the
provisions regarding the tenure, conditions of service, salary,
allowances, removability, etc., of the CEC, the ECs and the RCs. The
CEC and the ECs alon e constitute the Election Commission whereas
the RCs are appointed merely to assist the Commission… ”
Furthermore:
“17. Under clause (3) of Article 324, in the case of a multi -member
Election Commission, the CEC “shall act” as the Chairman of the
Commission. As we have pointed out earlier, Article 324 envisages a
permanent body to be headed by a permanent incumbent, namely ,
the CEC. The fact that the CEC is a permanent incumbent cannot
confer on him a higher status than the ECs for the simple reason
that the latter are not intended to be permanent appointees. Since
the Election Commission would have a staff of its own deali ng with
matters concerning the superintendence, direction and control of
the preparation of electoral rolls, etc., that staff would have to
function under the direction and guidance of the CEC and hence it
was in the fitness of things for the Constitution -makers to provide
that where the Election Commission is a multi -member body, the
CEC shall act as its Chairman. That would also ensure continuity
and smooth functioning of the Commission .”
Also, held:
“21. We have pointed out the distinguishing features f rom Article
324 between the position of the CEC and the ECs. It is essentially
on account of their tenure in the Election Commission that certain
differences exist. We have explained why in the case of ECs the
removability clause had to be different. The v ariation in the salary,
etc., cannot be a determinative factor otherwise that would oscillate
having regard to the fact that the executive or the legislature has to
fix the conditions of service under clause (5) of Article 324. The only
distinguishing feat ure that survives for consideration is that in the
case of the CEC his conditions of service cannot be varied to his
disadvantage after his appointment whereas there is no such
safeguard in the case of ECs. That is presumably because the posts
are temporar y in character. But even if it is not so, that feature alone
cannot lead us to the conclusion that the final word in all matters
lies with the CEC. Such a view would render the position of the ECs
to that of mere advisers which does not emerge from the sch eme of
Article 324. ”
(emphasis added)
103. The judgment in T.N. Seshan did not directly consider the
issues which are before this Bench. Furthermore, the observations
made in T.N. Seshan indicate that the Election Commissioners were
not mere advisors, but have a crucial constitutional role.
VI. Reports of Various Commissions on Manner of Appointment
of Chief Election Commissioner and Election Commissioners:
A. Dinesh Goswami Commission, 199049
“Appointment of CEC
1. The appointment of the Chief Election Commissioner should
be made by the President in consultation with the Chief Justice of
49 Dinesh Goswami Commission (1990), Chapter II, Electoral Machinery, pg. 9, 10, Available at:
https://adrindia.org/sites/default/f iles/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.p
df
India and the Leader of the Opposition (and in case no Leader of the
opposition is available, the consultation should be with the l eader of
the largest opposition group in the Lok Sabha).
2. The consultation process should have a statutory backing.
3. The appointment of the other two Election Commissioners
should be made in consultation with the Chief Justice of India,
Leader of the Opposit ion (in case the Leader of the opposition is not
available, the consultation should be with the leader of the largest
opposition group in the Lok Sabha) and the Chief Election
Commissioner.”
B. National Commission to Review the Working of
Constitution -Report (2002)50
“(62) The Chief Election Commissioner and the other Election
Commissioners should be appointed on the recommendation of a
body consisting of the Prime Minister, Leader of the Opposition in
the Lok Sabha, Leader of the Oppositio n in the Rajya Sabha, the
Speaker of the Lok Sabha and the Deputy Chairman of the Rajya
Sabha. Similar procedure should be adopted in the case of
appointment of State Election Commissioners. [Para 4.22]”
C. Election Commission of India Proposed Reforms ( 2004)51
“The independence of the Election Commission upon which the
Constitution makers laid so much stress in the Constitution would
be further strengthened if the Secretariat of the Election
Commission consisting of officers and staff at various levels i s also
insulated from the interference of the Executive in the matter of their
appointments, promotions, etc., and all such functions are
exclusively vested in the Election Commission on the lines of the
Secretariats of the Lok Sabha, and Rajya Sabha, Regi stries of the
50 National Commission to Review the Working of Constitution -Report (2002) Para 4.22, pg. 14 , Available
51 Election Commission of India Proposed Reforms (2004), 12. COMPOSITION OF ELECTION
at:
https://prsindia.org/files/bills_acts/bills_parliament/2008/bill200_20081202200_Election_Commission_P
Supreme Court and High Courts, etc. The Independent Secretariat
is vital to the functioning of the Election Commission as an
independent constitutional authority. In fact, the provision of an
independent Secretariat to the Election Commission has already
been accepted in principle by the Goswami Committee on Electoral
Reforms and the Government had, in the Constitution (Seventieth
Amendment) Bill, 1990, made a provision also to that effect. That
Bill was, however, withdrawn in 1993 as the Gove rnment proposed
to bring in a more comprehensive Bill.”
D. Report of Second Administrative Reform Commission
“In recent times, for statutory bodies such as the National Human
Rights Commission (NHRC) and the Central Vigilance Commission
(CVC) , appointment of Chairperson and Members are made on the
recommendations of a broad based Committee. Given the far
reaching importance and critical role of the Election Commission in
the working of our democracy, it would certainly be appr opriate if a
similar collegium is constituted for selection of the Chief Election
Commissioner and the Election Commissioners.”
E. Background Paper on Electoral Reform, Ministry of Law &
Justice (2010)53
“Recommendation
Clause (5) of Article 324 of the Constitution, inter alia, provides that
the Chief Election Commissioner shall not be removed from his office
except in like manner and on like grounds as a Judge of the
Supreme Court. However, Clause (5) of Article 324 doe s not provide
similar protection to the Election Commissioners and it only says
that they cannot be removed from office except on the
recommendation of the Chief Election Commissioner. The provision,
in the opinion of the Election Commission, is inadequat e and
requires an amendment to provide the very same protection and
safeguard in the matter of removability of Election Commissioners
52 Report of Second Administrative Reform Commission (2009), Pg. 79, Available at:
https://darpg.gov.in/en/arc -reports
53 Background Paper on Electoral Reform, Ministry of Law & Justice (2010), 6.3 Measures for Election
from office as is provided to the Chief Election Commissioner. The
Election Commission recommends that constitutional pro tection be
extended to all members of the Election Commission.
The Election Commission also recommends that the Secretariat of
the Election Commission, consisting of officers and staff at various
levels is also insulated from the interference of the Execut ive in the
matter of their appointments, promotions, etc., and all such
functions are exclusively vested in the Election Commission on the
lines of the Secretariats of the Lok Sabha, and Rajya Sabha,
Registries of the Supreme Court and High Courts etc.
The third recommendation of the Election Commission is that its
budget be treated as “Charged” on the Consolidated Fund of India.”
F. Law Commission of India Report, 2015 (255th Report)54
104. Taking note of the important role played by the Election
Commis sion of India i.e., the task of conducting elections throughout
the country, the Law Commission in its 255th Report emphasized that
the Commission should be completely insulated from political
pressure or executive interference to maintain the purity of elections,
inherent in a democratic process, and recommended:
“Appointment of Chief Election Commissioner and Election
Commissioners – (1) The Election Commissioners, including the
Chief Election Commissioners, shall be appointed by the President
by wa rrant under his hand and seal after obtaining the
recommendations of a Committee consisting of: (a) the Prime
Minister of India – Chairperson (b) the Leader of the Opposition in
the House of the People – Member (c) the Chief Justice of India –
Member
at:https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081635.p
df
Provi ded that after the Chief Election Commissioner ceases to hold
office, the senior -most Election Commissioner shall be appointed as
the Chief Election Commissioner, unless the Committee mentioned
in sub -section (1) above, for reasons to be recorded in writin g, finds
such Election Commissioner to be unfit.
Explanation: For the purposes of this sub -section, “the Leader of the
Opposition in the House of the People” shall, when no such Leader
has been so recognised, include the Leader of the single largest
group in opposition of the Government in the House of the People.”
105. The Law Commission also recommended the formation of an
independent and permanent Secretariat staff for Election
Commission and suggested that:
“The Election Commission shall have a separate independent and
permanent secretarial staff. The Election Commission may, by rules
prescribed by it, regulate the recruitment, and the conditions of
service of persons appointed, to its permanent secretarial staff.”
106. These reports clearly in dicate the need for reforms in the
working of the Election Commission, in particular in the process of
selection and removal of the members of the Election Commission.
VII. Comparative framework - Foundational parameters
107. An examination of practice for appointment of the head of
election -conducting bodies across the world shows some trends that
include amongst others, the inclusion of members of the opposition.
In most jurisdictions, such appointments are a consultative pro cess,
involving members/ nominees of both the ruling party and the
opposition party. The presence of opposition in various critical
decision -making processes of governance is a sine qua non for a
healthy democracy. It not only provides a system of account ability of
the ruling party but also ensures a much -crucial deliberative
process. This, in turn, plays a pivotal role in preserving the true
essence of democracy by raising the concerns of the people of the
country. In addition, some jurisdictions also hav e Constitutional
functionaries such as Speakers of the house of Parliament/
Legislature, and Judges of the Highest Court in the country in a
multi -member Committee. Relevant details of electoral bodies of
some countries are as follows:
NO COUNTRY Composition
of Election
Body Composition
of Selection
Committee Appointing
Authority Eligibility/
Tenure Removal
method/
measures to
ensure
Independence
55 There shall
be Chief
Election
Commissio ner
and 4
members
who shall
be High
Court
Judges
from each
Province.
[Article 218
consultation
with LOP in
the National
Assembly,
forward 3
names for
appointment
of the
commissioner
to a
parliamentary
committee for
hearing and President CEC- A Judge of
the SC or has
been a Judge of a
High Court
(qualified to be a
Judge of the
Supreme Court)
[Art 213(2)]
Members - Must
be a High Court
Judge.
Not more than 68
years of age. Under
Article
215(2) of the
constitution,
the
commissioner
or a member
can only be
removed
from office in
a manner
prescribed in
Article 209
as the
55 Constitution of Islamic Republic of Pakistan, available at :
https://drive.google.com/file/d/1TMpGdvhpYXMh07ZQoS_SDxwQoH_C8itF/view?usp=sharing
NO COUNTRY Composition
of Election
Body Composition
of Selection
Committee Appointing
Authority Eligibility/
Tenure Removal
method/
measures to
ensure
Independence
confirmation
of any one
person.
The
Parliamentary
Committee to
be
constituted
by the
speaker shall
compri se 50%
members
from the
treasury
Branch and
50% from
opposition
parties, to be
nominated by
respective
Parliamentary
leaders.
[Article 213] For a term of 5
years [ Art 215(1)]
removal of
judges i.e. if
he has been
guilty of
misconduct
2 Bangladesh
56 The
appointment
of the Chief
Election
Commissioner
of
Bangladesh
and other
election
commissioners
(if any) is
made by
the
president.
When the
election
commission
consists of
more than -CEC
-Not more
than four
election
Commissioner
[Art 118 (1)] President Five years.
[Art 118(3)]
Not eligible for
appointment in
the service of the
Republic. Any
other Election
Commissioner is,
on ceasing to hold
such office,
eligible for
appointment as
Chief Election
Commissioner,
but is not eligible
for appointment
in the service of
the Republic.
[Art 118 (3)(b)] that an
Election
Commissioner
shall not be
removed
from his
office except
in like
manner and
on the like
grounds as a
Judge of the
Supreme
Court.
An Election
Commissioner
may resign
his office by
writing
56Constitution of the People’s Republic of Bangladesh, Available at:
NO COUNTRY Composition
of Election
Body Composition
of Selection
Committee Appointing
Authority Eligibility/
Tenure Removal
method/
measures to
ensure
Independence
one person,
the chief
election
commission
er is to act
as its
chairman.
[Art 118 (1)] under his
hand
addressed to
the
President.
[Art 118(5)]
3 Australia
57 Section 6 of
the
Commonwealth
Electoral
Act 1918
(Electoral
Act)
establishes
the
Australian
Electoral
Commission
(the
Commissio n)
a three
person
body which
holds
responsibilities
outlined
under
section 7 of
the
Electoral
Act. -Chairperson
-Electoral
Commissioner
- one other
member
Chairperson
and
non-
judicial
appointee
are
appointed
by
Governor
General.
-7 years [S.8(1)]
The Commission
is headed by a
Chairperson, who
must be an active
or retired judge of
the Federal Court
of Australia. The
other members
are the Electoral
Commissioner and
a non -judicial
member.
eligible for re -
appointment. misbehaviour
or physical
or mental
incapacity by
Governor -
General.
4. Canada58 Chief
Electoral
Officer
(S.13 of
Canada
Elections
Act) - Appointed
by
resolution
of the
House
of
commons 10 years [S.13(1)]
Not eligible for re -
appointment to
that office.
He/She may
be removed
for cause by
the Governor
General on
address of
the Senate
and House of
57 Commonwealth Electo ral Act,1918 available at: https://www.legislation.gov.au/Details/C2022C00074
58 Canada Election Act, available at: https://laws -lois.justice.gc.ca/eng/acts/E -2.01/page -2.html#docCont
NO COUNTRY Composition
of Election
Body Composition
of Selection
Committee Appointing
Authority Eligibility/
Tenure Removal
method/
measures to
ensure
Independence
Commons .
5 Sri
Lanka59 Chairman
and Four
Members
[Art. 103(1)]
In making
such
appointments
the President
shall seek the
observations
of a
Parliamentary
Council
(hereinafter
referred to as
“the
Council”),
comprising –
(a) the Prime
Minister;
(b) the
Speaker;
(c) the Leader
of the
Opposition;
(d) a nominee
of the Prime
Minister, who
shall be a
Member of
Parliament;
and
(e) a nominee
of the Leader
of the
Opposition,
who shall be a
Member of
Parliament. President To be selected
amongst persons
who have
distinguished
themselves in any
profession or in
the field of
administration or
education.
One of the
members so
appointed shall be
a retired officer of
the Department of
Elections or
Election
Commission, who
has held office as
a Deputy
Commissioner of
Elections or
above. The
President shall
appoint one
member as its
Chairman.
The term of office
of members of the
Elections
Commission is
five years. [Art.
The
procedure
followed in
removing a
Judge of the
Supreme
Court or the
Court of
Appeal
should be
followed in
removing a
member
from office
during the
period of the
term of
office. [Art
A member of
the
Commission
shall be paid
such
emoluments
as may be
determined
by
Parliament.
The
emoluments
paid to a
member of
the
Commission
shall be
charged on
the
Consolidated
59 Constitution of Sri Lanka -
https://drive.google.com/file/d/1W5j3D_8CUiYjox8t8eUSlg7SFifjmebK/view?usp=sharing
NO COUNTRY Composition
of Election
Body Composition
of Selection
Committee Appointing
Authority Eligibility/
Tenure Removal
method/
measures to
ensure
Independence
Fund and
shall not be
diminished
during the
term of office
of the
member. [Art
6 United
States of
America
60 The Federal
Election
Commission
consists of
6 election
commission
ers, and not
more than
3 members,
may
represent
the same
political
party.
Commission
is appointed
by the
President and
confirmed by
the Senate . President
and
confirmed
by the
Senate -Each
commissioner is
appointed for a
six-year term
-Two
commissioners
are appointed
every two years.
-The Chair of
Commission
changes every
year.
7 Nepal61 Chief
Election
Commissioner
and four
other
Election
Commissioners
[Art 245(1 )] The President
shall, on the
recommendation
of the
Constitutional
Council
(Art.284)
Comprising
of:
a. Prime
Minister -
Chairperson
b. Chief
Justice -
Member
c. Speaker of President a. holds a
Bachelor's Degree
from a recognized
university,
b. is not a member
of any political
party immediately
before the
appointment;
c. has attained the
age of forty -five
and
d. possesses high
moral character.
[Art. 245(6)]
Six Years [Art. Removal by
the President
on
recommendation
of the
Constitutional
Council on
grounds of
his or her
inability to
hold office
and
discharge
the functions
due to
physical or
mental
61 Constitution of Nepal, Available at: https://lawcommission.gov.np/en/wp -
NO COUNTRY Composition
of Election
Body Composition
of Selection
Committee Appointing
Authority Eligibility/
Tenure Removal
method/
measures to
ensure
Independence
the House of
Representatives -
Member
d.
Chairperson
of National
Assembly -
Member
e. Leader from
the
Opposition
Party in
House of
Representative -
Member
f. Deputy
Speaker of
House of
Representatives -
Member),
appoint the
Chief Election
Commissioner
and the
Election
Commissioners. 245(3)] illness.
245(4)(d)]
8 South
Africa62 The
Commission
shall
consist of
five
members,
one of
whom shall
be a judge,
appointed
by the
President.
Panel shall
consist of:
(a) President
of the
constitutional
court -
Chair -person
Representative of
the human
rights court.
representative
of the President
on
nomination
by
committee
of
national
assembly
proportionally
consisting
of
members
of all the
parties
represented
in that
Assembly
from a (a) is a
South
African
citizen;
(b) does
not at
that
stage
have a
high
party -
political
profile;
(c)·has
been
recommended 7
years
Can
be re-
appointed
for 1
more
term By the
President:
-on ground
of
misconduct,
incapacity or
incompetence
-after a
finding to
that effect by
a committee
of the
National
Assembly
upon the
62 Electoral Commission Act 51 of 1996, available at:
NO COUNTRY Composition
of Election
Body Composition
of Selection
Committee Appointing
Authority Eligibility/
Tenure Removal
method/
measures to
ensure
Independence
commission
on gender
equality
(d) public
prosecutor
established.
[Section 6(3) ] list of
candidates
recommended
by the
panel. by the
National
Assembly
by a
resolution
adopted
by a
majority
of the
members
of that
Assembly
; and
(d) has
been
nominated
by a
committee
of the
National
Assembly,
proportionally
composed
of
members
of all
parties
represented
in that
Assembly
, from a
list of
recommended
candidates
submitted
to the
committee
by the
panel
referred
to in
sub-
section
[S.6(2)] recommendation of
the Electoral
Court, and
-the
adoption by
a majority of
the members
of that
Assembly of
a resolution,
calling for
that
commissioner's
removal from
office
9 United
KingdomThe
Electoral
Commission The Speaker's
Committee on
the Electoral
Commission, If the
House
agrees -
NO COUNTRY Composition
of Election
Body Composition
of Selection
Committee Appointing
Authority Eligibility/
Tenure Removal
method/
measures to
ensure
Independence
63 comprises
of Ten
commissioners
that are
appointed
by the
committee
membership
drawn from
MPs within
the UK
Parliament.
membership
drawn from
MPs within
the UK
Parliament,
oversees the
recruitment
of electoral
commissioners
candidates
for these
posts are
then
approved by
the House of
Commons
and
appointed by
HM the
Queen.
The Speaker
will ask the
Leader of the
House to
table a motion
for an humble
Address to
appoint the
recommended
candidates. the
motion,
the King
appoints
the
commissioners
by Royal
Warrant
VIII. Process of Selection of other Constitutional/Statutory
Bodies
63 https://www.electoralcommission.org.uk/who -we-are-and-what -we-do/about -us/commissioners/our -
commissioners
108. Various state institutions supporting constitutional democracy
have an independent mechanism for the appointment of its heads
and members. The same is carried out with an object to keep them
insulated from any external influence that allows them to remain
neutral t o carry on the assigned functions. Table showing the
position of various authorities is as follows:
No. Authorities Composition
of Body Composition
of
Selection
Committee Appointing
Authority Eligibility Tenure Conditions
ensuring
Independence
1. National
Human
Rights
Commission
(The
Protection of
Human
Rights Act,
composed
of
Chairperson
and 12
other
members
(5 full
time
members
and 7
deemed
members)
(Section
Constitution
The
Protection
of
Human
Rights
Act, 1993 The
Selection
Committee
includes:
● Prime
Minister
(Chairman )
●Speaker
of Lok
Sabha,
●Union
Home
Minister,
●Deputy
Chairman
of Rajya
Sabha,
●Leaders
of the
Opposition
in both
Houses of
the
Parliament President
(Section -
4) Chairman
- retired
Judge of
the
Supreme
Court
Member
1- One
who has
been
judge of
the SC
Member
2- One
who has
been CJ
of the HC
Members
out of
which at
least on
shall be a
woman
among
candidate
with the
knowledge
or
practical
experience 3 years
or until
the age
of 70
years
(Section
6. Term
of office
of
Chairperson
and
Members )
The
President
can remove
the
chairman
or any
member
from the
office
under
some
circumstances
No. Authorities Composition
of Body Composition
of
Selection
Committee Appointing
Authority Eligibility Tenure Conditions
ensuring
Independence
in the
matter of
Human
Rights.
2. State Human
Rights
Commission
(The
Protection of
Human
Rights Act,
1993) Chairperson
and 2
members
(Section
Appointment
of
Chairper
son and
Members
of State
Commission )
The
Protection
of
Human
Rights
Act, 1993
Appointed
by the
Governor
on the
recommendation
of
Committee
consisting:
● Speaker
of
Legislative
Assembly ,
● State
Home
Minister,
● Leader of
the
Opposition in
the
Legislative
Assembly Governor
(S. 22) Chairman
– Retired
Chief
Justice or
a judge of
Members -
serving or
retired
judge of
the HC or
a District
Court in
the state 3 years
or 70
years
whichever
is
earlier
(Section
Term of
office of
Chairperson
and
Members
of the
State
Commission)
Eligible
for re -
appointment Removed
only by the
President
3. CBI (headed
by Director)
(Delhi Special
Police
Establishmen
t Act, 1946) (Section
Committee
for
appointment
of
Director)
Delhi
Special
Police
Establishment
Act, 1946 Central
Government
shall
appoint
Director of
the CBI on
the
recommendation
of the 3 -
member
committee
consisting
of:
● The Prime
Minister
as the
Chairperson
● Leader of
Opposition
in the Lok
Sabha,
and By
Appointment
Committee - 2 years
tenure
(Section
Terms
and
conditions
of
service
of
Director
Delhi
Special
Police
Establishment
Act,
1946 President
has the
authority
to remove
or suspen d
the
Director on
the
reference
by the
misbehaviour
or
incapacity
(Removal)
No. Authorities Composition
of Body Composition
of
Selection
Committee Appointing
Authority Eligibility Tenure Conditions
ensuring
Independence
Judge of
the SC,
nominated
by him.
4. Chief
Information
Commissioner
(The Right to
Information
Act, 2005) - Chief
Information
Commissioner
- Central
Information
Commissioners
(as
deemed
fit,
maximum
(Section
Constitution
of Central
Information
Commission )
Right to
Information
Act, 2005 ●Prime
Minister
(Chairman)
●Leader of
Opposition
in the Lok
Sabha
● Union
Cabinet
Minister
(nominated
by the
President
on the
recommendation
of the
committee Perso ns
of
eminence
in public
life with
wide
knowledge
and
experience
in law,
science,
and
technology
,social
service,
management ,
journalism ,
mass
media or
administration
and
governance .
Shall not
be a
member
of
parliament
or
legislature
of any
state or
UT and
should
not hold
any
officer of
profit
under
state. …as
may be
prescri
bed by
Central
Government
or 65,
whichever
is
earlier
- Shall
be
ineligible
for re -
appointment
Information
Commissioners
can be
appointed
provided
the
collective
tenure
of both
posts
does
not
exceed
5 years.
(Section
Term of
office
and
conditions
of
service) Removal
By
President
on ground
of proven
misbehaviour
or
incapacity
(After SC’s
inquiry
that such
officer
shall be
removable
on such
grounds )
Other
grounds:
insolvency
conviction
of offense
involving
moral
turpitude.
- unfit due
to infirmity
of mind.
- acquired
financial
interests
inconsiste
nt with his
official
position.
No. Authorities Composition
of Body Composition
of
Selection
Committee Appointing
Authority Eligibility Tenure Conditions
ensuring
Independence
5. Central
Vigilance
Commission
2003) - Central
Vigilance
Commissioner
Vigilance
Commissioners
(not more
than 2)
(Section 3
Constituti
on of
Central
Vigilance
Commission )
Central
Vigilance
Commission
Act, 2003 ● Prime
Minister
(Chairman
● Leader of
Opposition
in the Lok
Sabha
● Minister
of
Home
Affairs
President
on the
recommendation
of the
committee For CVC
- Persons
who are
or have
been in
All India
Service or
Civil
Service
experienc
e in
matters
related to
vigilance,
policy -
making,
and
administration
including
police
administration .
or
-held or
holding
office in a
corporati
on
establishe
d under
Central
Governm
ent and
having
expertise
and
experienc
e in
finance
including
insurance
and
banking,
law,
vigilance
and
investigat
ions 4 years
from
the
date he
enters
office or
years,
whichever
is
earlier.
- Shall
be
ineligible
for re -
appointment
Vigilance
Commissioner
shall be
eligible
to be
appointed
as
provided
the
collective
tenure
of both
the
posts
does
not
exceed
4 years.
(Section
Terms
and
other
conditions
of
service
of
Central
Vigilance
Commissioner)
Central
Vigilance
Commission Removal
By
President
on ground
of proved
misbehaviour
or
incapacity
(After SC’s
inquiry
that such
officer
shall be
removable
on such
grounds)
Other
grounds:
insolvency
conviction
of offense
involving
moral
turpitude.
- unfit due
to infirmity
of mind.
- acquired
financial
interests
inconsiste
nt with his
official
position.
No. Authorities Composition
of Body Composition
of
Selection
Committee Appointing
Authority Eligibility Tenure Conditions
ensuring
Independence
Act,
6. Lokpal
(Lokpal and
Lokayukta
Act, 2013) Chairperson
- other
members
(as
deemed
fit, not
more
than
shall be
judicial
members
(Section 4
Appointment
of
Chairperson
and
Members
on
recommendations
of the
Selection
Committee )
Lokpal
and
Lokayuktas
Act, 2013 ● Prime
Minister
(Chairman
● Leader of
Oppositi
on in the
Lok
Sabha
● Speaker
of House
of the
People
of SC
● One
eminent
Jurist President
on the
recommendation
of the
committee For
Chairman
- who is
or has
been a
Chief
Justice of
India or is
or has
been a
Judge of
the
Supreme
Court or
an
eminent
person of
impeccable
integrity
and
outstanding
ability
having
special
knowledge
and
expertise
of not less
than
twenty -
five years
in the
matters
relating to
anti-
corruption
policy,
public
administration ,
vigilance,
finance
including
insurance
and
banking, 5 years
from
entering
office or
years,
whichever
is
earlier.(
Shall
be
ineligible
for:
-re-
appointment
as
Chairman
or
Member
of
Lokpal.
- other
appointment
required
to be
made
by
President
- other
office of
profit
under
the
government .
contesting
election
within
period
of 5
years
from
relinquishing By
President
on ground
of proved
misbehaviour
or
incapacity
After SC’s
inquiry
that such
officer
shall be
removable
on such
grounds)
Other
grounds:
insolvency
- unfit due
to infirmity
of mind.
- engages
employme
nt outside
his office.
No. Authorities Composition
of Body Composition
of
Selection
Committee Appointing
Authority Eligibility Tenure Conditions
ensuring
Independence
law and
management .
Chairpersons
and
members
shall not
be:
- less
than 45
years
convicted
of offence
involving
moral
turpitude
- member
of
Panchayat
or
municipality
- person
who has
been
dismissed
or
removed
from
services. the
post.
: Member
can be
appointed
as
Chairm
an,
provided
aggregate
term
does
not
exceed
5 years.
(Section
6 Term
of office
of
Chairperson
and
Members )
Lokpal
and
Lokayuktas
Act,
7. Press
Council of
India
(Press
Council of
India Act,
Chairman
other
members
(Section 5
Composition
of the
Council) ● Chairman
of the
Council
of States
(Rajya
Sabha)
● Speaker
of the
House of Different
set of
members
are
appointed
according
to the
requirement
of their
roles. For
chairman , No
working
journalist
who
owns, or
carries on
the
business
of management
of, any
newspaper 3 years
(Chairman
& other
Members)
Chairman
to
continue
to hold -
No. Authorities Composition
of Body Composition
of
Selection
Committee Appointing
Authority Eligibility Tenure Conditions
ensuring
Independence
Press
Council
Act, 1978 the
People
(Lok
Sabha)
● A person
elected
by the
members
of the
Council a
committe
e is
formed. shall
eligible
for
nomination
(Proviso
to Sec
5(3)) office
until
the
Council
is
reconstituted
accordance
Section
5 or for
period
of 6
months
whichever
is
earlier
Retiring
member
eligible
for only
one
term.
(Section
Term of
office
and
retirement
of
members )
Press
Council
Act,
IX. Constitutional Silence and Vacuum: Power of the Court to lay
guidelines
109. This Court has plenary power under Article 142 to issue
directions to do “complete justice”. An analysis of the judgments of
this Court shows that the Court has created a jurisprudence, where
it has exercised its power under Article 142 to fill legislative gaps.64
Reference can also be made to the speech given by Dr B.R. Ambedkar
in the Constituent Assembly on 4 November 1948, where he noted
that the Drafting Committee had tried to include detailed processes
to avoid the misuse of power. Dr Ambedkar was emphasizing on a
constitutional design which would prevent arbitrariness by laying
down legal procedures to regulate power.65
110. This Court has laid down guidelines in order to fill the legislative
gap on a number of occasions. In Lakshmi Kant Pandey v Union of
India,66 in the absence of statutory enactment for the adoption of
Indian children by foreign parents, the ir Court laid dow n safeguards
to prevent malpractice by social organizations and private adoption
agencies. Directions were provided in Kumari Madhuri Patil and
Another v Addl. Commissioner, Tribal Development and Others67
for issuance and early scrutiny of social status certificates (showing
that a person belongs to SC/ST community) for admission in
64 Krishnan RH and Bhaskar A, “Article 142 o f the Indian Constitution: On the Thin Line between Judicial
Activism and Restraint” in Salman Khurshid and others (eds), Judicial Review: Process, Powers, and
Problems (Essays in Honour of Upendra Baxi) (Cambridge University Press 2020)
65 https://www.hind ustantimes.com/opinion/ambedkars -constitutionalism -speaks -to-contemporary -times -
educational institutions or for employment. This Court laid down
guidelines for autonomy of CBI and other special investigatin g
agencies in the case of Vineet Narain and Others v Union of India
and Another .68 In the case of Vishaka and Others v State of
Rajasthan and Others ,69 this Court laid down guidelines to ensure
prevention of sexual harassment of women at workplace. Anothe r
judgment in this regard is Vishwa Jagriti Mission Through
President v Central Govt . Through Cabinet Secretary and
Others ,70 where a two -judge bench of this Court laid down guidelines
for educational institutes to prevent the menace of ragging.
111. This Court in the case of Prakash Singh and Others v Union
of India and Others ,71 after studying various committee reports on
police reforms, laid down certain directions in the nature of police
reforms to be operative until the new Police Act is to be framed. It is
necessary to quote the following excerpt from the judgment:
“It is not possible or proper to leave this matter only w ith an
expression of this hope and to await developments further. It is
essential to lay down guidelines to be operative till the new
legislation is enacted by the State Governments. Article 32 read
with Article 142 of the Constitution empowers this Court to issue
such directions, as may be necessary for doing complete justice in
any cause or matter. All authorities are mandated by Article 144 to
act in aid of the orders passed by this Court…. In the discharge of
our constitutional duties and obligations having regard to the
aforenoted position, we issue the following directions to the Central
Government, State Governments and Union Territories for
compliance till framing of the appropriate legislations.”
112. This Court has also laid down guidelines to streamline and
facilitate the institutional apparatus and procedural system. In the
case of Laxmi v Union of India and Others ,72 this Court intervened
to prevent cases of acid violence, and laid down guidelines on sale of
acid and the treatment of victims of acid attack. A three -judge bench
decision in Shakti Vahini v Union of India and Others73 issued
guidelines to check unlawful interference by Khap panchayat in
interfaith and inter caste marriages. The Court held:
“To meet the challenges of the agonising effect of honour crime, we
think that there has to be preventive, remedial and punitive
measures a nd, accordingly, we state the broad contours and the
modalities with liberty to the executive and the police administration
of the concerned States to add further measures to evolve a robust
mechanism for the stated purposes.”
113. The series of case laws authoritatively demonstrate the
commitment of this Court to intervene to preserve and promote the
“Rule of Law”, by supplementing the legislative gaps till the
Legislature steps in. This has been done in exercise of the plenary
powe r of this Court under Article 142 of the Constitution.
114. Our decision is therefore to lay down parameters or guidelines
for the selection process for the appointment of the Chief Election
Commissioner and the Election Commissioner. This decision is
supp orted by the two -judge judgment in State of Punjab v. Salil
Sabhlok and Others .74 In this case, it was pointed out that no
parameters or guidelines have been laid down in Article 316 of the
Constitution for selecting the Chairperson of the Public Service
Commission and no law has been enacted on the subject with
reference to Schedule VII List II Entry 41 of the Constitution. In his
concurring opinion, Justice Madan Lokur, for the bench, relied on
Mohind hr Singh Gill case to reiterate that:
“... wide discretion is fraught with tyrannical potential even in high
personages. Therefore, the jurisprudence of prudence demands a
fairly high degree of circumspection in the selection and
appointment to a constitutional position having important and
significant ramifications.”
115. Justice Lokur also analysed the previous judgments of this
Court on judicial review of the selection process, and noted:
“115. In Centre for PIL [Centre for PIL v. Union of India , (2011) 4 SCC
1 : (2011) 1 SCC (L&S) 609] this Court struck down the appoint ment
of the Central Vigilance Commissioner while reaffirming the
distinction between merit review pertaining to the eligibility or
suitability of a selected candidate and judicial review pertaining to
the recommendation -making process.… Acknowledging this, this
Court looked at the appointment of the Central Vigilance
Commissioner not as a merit review of the integrity of the selected
person, but as a judicial review of the recommendation -making
process relating to the integrity of the institution. It was mad e clear
that while the personal integrity of the candidate cannot be
discounted, institutional integrity is the primary consideration to be
kept in mind while recommending a candidate. It was observed that
while this Court cannot sit in appeal over the opi nion of HPC, it can
certainly see whether relevant material and vital aspects having
nexus with the objects of the Act are taken into account when a
recommendation is made. This Court emphasised the overarching
need to act for the good of the institution a nd in the public interest.
Reference in this context was made to N. Kannadasan [N.
Kannadasan v. Ajoy Khose , (2009) 7 SCC 1 : (2009) 3 SCC (Civ) 1] .”
(emphasis added)
116. It was also held that the selection process of a constitutional
post cannot be equated with the selection process of a bureaucratic
functionary. If the Executive is left with the exclusive discretion to
select the candidate, it may destroy the fabric of the constitutional
institution. This Court held:
“A constitutional position such as that of the Chairperson of a Public
Service Commission cannot be equated with a purely administrative
position —it would be rather facetious to do so. While the Chief
Secretary and the Director General of Polic e are at the top of the
ladder, yet they are essentially administrative functionaries. Their
duties and responsibilities, however onerous, cannot be judged
against the duties and responsibilities of an important
constitutional authority or a constitutional trustee, whose very
appointment is not only expected to inspire confidence in the
aspirational Indian but also project the credibility of the institution
to which he or she belongs. I am, therefore, unable to accept the
view that the suitability of an app ointee to the post of Chairperson
of a Public Service Commission should be evaluated on the same
yardstick as the appointment of a senior administrative
functionary… The Chairperson takes the oath of allegiance to India
and to the Constitution of India —not an oath of allegiance to the
Chief Minister. An appointment to that position cannot be taken
lightly or on considerations other than the public interest.
Consequently, it is not possible to accept the contention that the
Chief Minister or the State Govern ment is entitled to act only on the
perceived suitability of the appointee, over everything else, while
advising the Governor to appoint the Chairperson of the Public
Service Commission. If such a view is accepted, it will destroy the
very fabric of the Pu blic Service Commission.” (para 119 and 125)
117. It was concluded that the Court can frame guidelines till the
Legislature steps in. To quote:
“136. In the light of the various decisions of this Court adverted to
above, the administrative and constitutio nal imperative can be met
only if the Government frames guidelines or parameters for the
appointment of the Chairperson and Members of the Punjab Public
Service Commission. That it has failed to do so does not preclude
this Court or any superior court from giving a direction to the State
Government to conduct the necessary exercise within a specified
period. Only because it is left to the State Legislature to consider
the desirability or otherwise of specifying the qualifications or
experience for the appoi ntment of a person to the position of
Chairperson or Member of the Punjab Public Service Commission,
does not imply that this Court cannot direct the executive to frame
guidelines and set the parameters. This Court can certainly issue
appropriate direction s in this regard, and in the light of the
experience gained over the last several decades coupled with the
views expressed by the Law Commission, the Second
Administrative Reform Commission and the views expressed by
this Court from time to time, it is imp erative for good governance
and better administration to issue directions to the executive to
frame appropriate guidelines and parameters based on the
indicators mentioned by this Court. These guidelines can and
should be binding on the State of Punjab til l the State Legislature
exercises its power.” (emphasis added)
118. That Article 324(2) refers to the appointment of the Chief
Election Commissioner and other Election Commissioners which
shall, subject to the provisions of any law made in that behalf by
Parliament, be made by the President. It contemplates that the
Parliament makes a law laying down t he proce dure of selection for
appointment of the Chief Election Commissioner and other Election
Commissioners, but such law has not been made by the Parliament,
even after 73 years since the adoption of the Constitution. In order
to fill the legislative va cuum, i.e. the absence of any law made by the
Parliament for the appointment of members of the Election
Commission and in the light of the views expressed in various reports
of the Law Commission, Election Commission, etc., this Court is of
the considered view that the instant case thus aptly calls for the
exercise of the power of this Court under Article 142 to lay down
guidelines to govern the process of selection and removal of Chief
Election Commissioner and Election Commissioners, till the
Legislature steps in.
X. Independence of Election Commissioners
119. In order to allow independence in the functioning of the Election
Commission as a Constitutional body, the office of Chief Election
Commissioners as well as the Election Commissioners have to be
insulated from the executive interference. This is envisaged under the
proviso to Article 324(5) which reads:
“Provided that the Chief Election Commissioner shall not be
removed from his office except in like manner and on the like
grounds as a Judge of the Su preme Court and the conditions of
service of the Chief Election Commissioner shall not be varied to his
disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional
Commissioner shall not be removed from office except on the
recommendation of the Chief Election Commissioner.”
120. There are two procedural safeguards available regarding the
removal of the CEC: (i) shall not be removed from his office except in
like manner and on the like grounds as a Judg e of the Supreme
Court; (ii) the conditions of service of the Chief Election
Commissioner shall not be varied to his disadvantage after his
appointment. However, second proviso to Article 324(5) postulates
that the removal of the Election Commissioners cou ld be made only
on the recommendation of the Chief Election Commissioner. The
protection available to the Chief Election Commissioners is not
available to other Election Commissioners. Various reports have
recommended that the protection against removal a vailable to the
Chief Election Commissioner should be made available to the other
Election Commissioners to ensure the independence of the Election
Commission.
121. A note titled “Proposed Electoral Reforms” (2004)75 prepared
and published by the Election Commission of India itself
recommended that:
“In order to ensure the independence of the Election Commission
and to keep it insulated from external pulls and pressures, Clause
(5) of Article 324 of the Constitution, inter alia, provides that the
Chief Election Commissioner shall not be removed from h is office
except in like manner and on like grounds as a Judge of the
Supreme Court. However, that Clause (5) of Article 324 does not
provide similar protection to the Election Commissioners and it
merely says that they cannot be removed from office except on the
recommendation of the Chief Election Commissioner. The provision,
in the opinion of the Election Commission, is inadequate and
requires an amendment to provide the very same protection and
safeguard in the matter of removability of Election Commiss ioners
from office as is available to the Chief Election Commissioner. ”
(emphasis added)
122. The above recommendation was reiterated in the Background
Paper on Electoral Reform (2010)76 prepared by the Union Ministry
of Law and Justice, in co-sponsorship of Election Commission of
India states:
“Recommendation
75 Election Commission of India Proposed Reforms (2004), Pg. 14, 15, available at:
https://prsindia.org/files/bills_acts/bills_parliament/2008/bill200_20081202200_Election_Commission_P
76 Background Paper on Electoral Reform, Ministry of Law & Justice (2010), 6.3 M easures for Election
Clause (5) of Article 324 of the Constitution, inter alia, provides that
the Chief Election Commissioner shall not be removed from his office
except in like manner and on like grounds as a Judge of the
Supreme Court. However, Clause (5) of Article 324 does not provide
similar protection to the Election Commissioners and it only says
that they cannot be removed from office except on the
recommendation of the Chief Election Commi ssioner. The provision,
in the opinion of the Election Commission, is inadequate and
requires an amendment to provide the very same protection and
safeguard in the matter of removability of Election Commissioners
from office as is provided to the Chief El ection Commissioner. The
Election Commission recommends that constitutional protection be
extended to all members of the Election Commission.
The Election Commission also recommends that the Secretariat of
the Election Commission, consisting of officers a nd staff at various
levels is also insulated from the interference of the Executive in the
matter of their appointments, promotions, etc., and all such
functions are exclusively vested in the Election Commission on the
lines of the Secretariats of the Lok Sabha, and Rajya Sabha,
Registries of the Supreme Court and High Courts etc.
The third recommendation of the Election Commission is that its
budget be treated as “Charged” on the Consolidated Fund of India.”
(emphasis added)
123. The office of the Election Commission is an independent
constitutional body which has been vested with the powers of
superintendence, direction and control of the preparation of electoral
rolls and the conduct of all parliamentary and State Legislatures ’
elections and that of the office of President and Vice -President in
terms of Article 324(1) of the Constitution . In terms of Article 324(2),
the office of Election Commission comprises of Chief Election
Commissioner and “such number of other Election Commissio ners, if
any, as the President may from time to tim e fix” and by an Order dated
01 October, 1993, the President has fixed the number of Election
Commissioners to two until further orders. Since 1993, it is a multi -
member Commission with equal participation in transacting the
business of the Election Commission as provided under Chapter III
of the Act, 1991 to ensure the smooth and effective functioning of the
Election Commission .
124. Article 324(5) of the Constitution is intended to ensure the
independence of the Election Commission free from all external
political interference and, thus, expressly provides that the removal
of the Chief Election Commission from office shall be in like manner
as on the grounds as of a Judge of the Supreme Court. Nevertheless,
a similar procedure has not been provided for other Election
Commissioners under second proviso to Article 324(5) of the
Constitution. The other conditions of th e service of Chief Election
Commissioner/other Election Commissioners have been protected by
the Legislature by the Act 1991.
125. In the facts and circumstances, keeping in view the importance
of maintaining the neutrality and independence of the office of the
Election Commission to hold free and fair election which is a sine qua
non for upholding the democracy as enshrined in our Constitution , it
becomes imperative to shield the app ointment of Election
Commissioners and to be insulated from the executive interference .
It is the need of the hour and advisable , in my view , to exten d the
protection available to the Chief Election Commissioner under the
first proviso to Article 324(5) to other Election Commissioners as well
until any law is being framed by the Parliament.
XI. Directions
126. Until the Parliament makes a law in consonance with Article
324(2) of the Constitution, the following guidelines shall be in effect:
(1) We declare that the appointment of the Chief Election
Commissioner and the Election Commissioners shall be made
on the recommendation s made by a three -member Committee
comprising of the Prime Minister, Leader of the Opposition of
the Lok Sabha and in case no Leader of Opposition is available,
the Leader of the largest opposition party in the Lok Sabha in
terms of numerical strength and the Chi ef Justice of India.
(2) It is desirable that the grounds of removal of the Election
Commissioners shall be the same as that of the Chief Election
Commissioner that is on the like grounds as a Judge of the
Supreme Court subject to the “recommendation of the Chief
Election Commissioner ” as provided under the second proviso
to Article 324(5) of the Constitution of India.
(3) The conditions of service of the Election Commissioners shall
not be varied to his disadvantage after appointment.
|
In a significant judgment passed on Thursday, the Supreme Court called for a committee including the Chief Justice of India to appoint members of the Election Commission of India (ECI).
In its verdict, the Constitution Bench also went on to comment on independence of Election Commissioners, the rise of money power and criminalisation in politics, and more.
Watch the operative part of the Judgment
Here are ten things the Court said in its judgment.
1. There is huge surge in the role of money power and criminalisation of politics. Certain sections of the media have forgotten their invaluable role and have turned unashamedly partisan.
2. A law cannot be perpetuation of what is existing, of the executive having the absolute say in appointments...Political parties would have a reason to not seek a law, which is clear to see. A party in power will have an insatiable quest to remain in power through a servile Commission.
3. EC has to be independent, it cannot claim to be independent then act in an unfair manner. A person in state of obligation to the government cannot have an independent frame of mind. An independent person will not be servile to those in power.
4. What is independence? Competence is not to be bound by fear. Qualities of competence have to be supplemented by independence. An honest person would ordinarily unflinchingly take on the high and mighty. A common person will look up to him to ensure that democracy is preserved.
5. An EC that does not guarantee rule of law is against democracy. In its wide spectrum of powers, if exercised illegally or unconstitutionally, it has an effect on the outcome of political parties.
6. Ends cannot justify wrong means. Democracy can succeed only as all stakeholders work on it to maintain the purity of the election process so as to reflect the will of people. With rise in media coverage and others, the propensity of misuse of election machinery lies.
7. Any process that seeks to improve the election process before this Court must be considered. Once results are out, matter largely becomes a fait accompli. Lincoln declared democracy to be by, for and of the people. Government should run as per the laws.
8. The powers of appointment are capable of being misused, this may be writ large across the country. The fate of political parties and their candidates rests in the hands of the ECI, vitally important decisions are taken by those who helm its affairs.
9. Democracy can be achieved only when the governing parties attempt to uphold it in letter and spirit. We find that the ECI has been charged with the duty and powers to hold elections for states and Parliament. It is duty-bound to act in a free and fair manner.
10. Hallmark of a substantial and liberal democracy must be borne in mind, democracy is inextricably linked to the power of the people. The power of the ballot is supreme, capable of unseating the most powerful parties.
Watch the pronouncement of judgment below:
|
Re: Filling up vacancies of judges in the Supreme Court.
The Supreme Court of India has a sanctioned strength of thirty
four Judges and is presently functioning with thirty -one Judges . The
Supreme Court has a huge backlog of cases. In view of the ever
mounting pendency of cases , the workload of judges has increased
considerably. Bearing in mind the above, it has become necessary to
ensure that the Court has full working judge -strength leaving no
vacancy at any point of time. Bearing in mind the above, the
Collegium has decided to fill up all the three existing vacancies by
recommending names.
The Collegium deliberated on and discussed the names of Chief
Justices and senior puisne Judges of the High Courts eligible for
appointment to the Supreme Court. Judgments authored by those
falling in the zone of consideration for elevation to the Supreme Court
were circulated among the members of the Collegium , well in
advance, for a meaningful discussion on and assessment of their
judicial acumen. The Centre for Research & Planning of the Supreme
Court has prepared a compilation of relevant background material to
assist the Collegium.
While recommending appointments to the Supreme Court the
Collegium has taken into consideration the following aspects:
a. The seniority of Chief Justices and senior puisne Judges
in their respective parent High Courts as well as overall
seniority of the High Court Judges;
b. The merit, performance and integrity of the judges under
consideration; and
c. The need to ensure diversity and inclusion in the
Supreme Court by:
(i) representation of High Courts which are not
represented or are inadequately represented, in the
Supreme Court;
(ii) appointment of persons from marginalized and
backward segments of society;
(iii) gender diversity; and
(iv) representation of minorities.
After carefully evaluating the merit, integrity and competence
of eligible Chief Justices and senior puisne Judges of the High Courts
and also accommodating a plurality of considerations, the Collegium
finds the following persons to be deserving and suitable in all respects
for being appointed as Judges of the Supreme Court of India:
i. Mr Justice Satish Chandra Sharma ,
Chief Justice, High Court of Delhi ,
(PHC: Madhya Pradesh )
ii. Mr Justice Augustine George Masih ,
Chief Justice, High Court of Rajasthan ,
(PHC: Punjab & Haryana )
iii. Mr Justice Sandeep Mehta,
Chief Justice, Gauhati High Court,
(PHC: Rajasthan)
The Collegium, therefore, unanimously resolves to recommend
that (i) Mr Justice Satish Chandra Sharma , (ii) Mr Justice Augustine
George Masih , and (iii) Mr Justice Sandeep Mehta, be appointed as
Judges of the Supreme Court of India.
Mr. Justice Satish Chandra Sharma was appointed as a Judge of
the Madhya Pradesh High Court on 18 January 2008. He was elevated
as Chief Justice of the High Court for the State of Telangana on 11
October 2021 and thereafter transferred to High Court of Delhi on 28
June 2022. Mr Justice Satish Chandra Sharma has served as a judge of
the High Court for more than 15 years and as Chief Justice of High
Court for more than 2 years. The judgments authored by him dealing
with issues in various branches of law stand testimony to his legal
acumen and competence. Before his elevation as a Judge of the High
Court of Madhya Pradesh, he practised in constitutional, service, civil
and criminal matters . Mr. Justice Sharma stands at Sl. No. 2 in the
combined all India seniority of High Court Judges . In the seniority of
Judges hailing from Madhya Pradesh High Court, Mr. Justice Sharma
stands at Sl. No. 1. While recommending his name, the Collegium i s
aware of the fact that at present, the Bench of the Supreme Court is
represented by 1 Judge from the Madhya Pradesh High Court .
Mr. Justice A G Masih was appointed as a Judge of the Punjab
and Haryana High Court on 10 July 2008. He was elevated as Chief
Justice of the Rajasthan High Court on 30 May 2023 . During his long
tenure as a judge of the High Court Mr Justice Masih has acquired
significant experience in diverse fields of law. Before his elevation,
he practised in Constitution al, service, labour, and c ivil matters . Mr.
Justice Masih stands at Sl. No. 7 in the combined all India seniority
of High Court Judges . In the seniority of Judges hailing from the High
Court of Punjab & Haryana, he stands at Sl. No. 1. He belongs to a
minority community. While recommending his name, the Collegium
is aware of the fact that at present, the Bench of the Supreme Court is
represented by 2 Judges from the Punjab & Haryana High Court .
Mr Justice Sandeep Mehta was appointed as a judge of the
Rajasthan High Court on 30 May 2011. Having attained seniority in
his parent High Court he was elevated as Chief Justice of the Gauhati
High Court and is serving there since 15 February 2023. The R ajasthan
High Court which is his parent High Court is a large High Court which
does not have representation on the Bench of the Supreme Court. Mr
Justice Mehta has served as a judge of the High Court for more than 12
years. During his long tenure as a jud ge of the Rajasthan High Court
and as Chief Justice of the Gauhati High Court, Mr Justice Mehta has
acquired significant adjudicatory experience. Before his elevation, he
practised before trial courts, High Court and the Supreme Court, mainly
in constitut ional and criminal laws. The judgments authored by him
dealing with issues in various branches of law stand testimony to his
legal acumen and competence. Mr. Justice Mehta stands at Sl. No. 23
in the combined all India seniority of High Court Judges . In the
seniority of Judges hailing from the High Court of Rajasthan, he stands
at Sl. No. 1. Apart from according representation to the State of
Rajasthan, the appointment of Mr Justice Mehta will provide a value
addition in terms of his acquired knowledge and experience.
In view of the foregoing, the Collegium further resolves to
recommend that the appointments of the above persons be made in
the following order of seniority:
|
The Supreme Court on Monday recommended the names of Chief Justices of three High Courts for elevation as judges of the apex court.
The names proposed are:
- Delhi High Court Chief Justice Satish Chandra Sharma
- Rajasthan High Court Chief Justice Augustine George Masih
- Gauhati High Court Chief Justice Sandeep Mehta
The Collegium in its resolution stated that the factors used to assess the judges under consideration were their seniority, merit, performance, integrity, diversity in terms of parent High Courts, social background etc.
The resolution notes that the Supreme Court has a huge backlog of cases, which has increased the workload of judges considerably and necessitated a full-strength court.
Justice Sharma's parent High Court is the Madhya Pradesh High Court, while Justices Masih and Mehta hail from the Punjab & Haryana and Rajasthan High Courts respectively.
Justice Satish Chandra Sharma was appointed judge of the Madhya Pradesh High Court on January 18, 2008. He was elevated as Chief Justice of the High Court for the State of Telangana on October 11, 2021 and thereafter transferred to High Court of Delhi on June 28, 2022.
He has been the Chief Justice for over two years. The resolution states:
"The judgments authored by him dealing with issues in various branches of law stand testimony to his legal acumen and competence. Before his elevation as a Judge of the High Court of Madhya Pradesh, he practised in constitutional, service, civil and criminal matters."
Justice Sharma is second-placed in all-India seniority of High Court judges, and first in terms of judges from the Madhya Pradesh High Court.
Justice AG Masih was appointed judge of the Punjab and Haryana High Court on July 10, 2008. He was elevated as Chief Justice of the Rajasthan High Court on May 30, 2023.
"During his long tenure as a judge of the High Court Justice Masih has acquired significant experience in diverse fields of law. Before his elevation, he practised in Constitutional, service, labour, and civil matters", the Collegium notes.
He is seventh in the all-India High Court judges seniority list, and first among judges from his parent High Court.
Justice Mehta was appointed judge of the Rajasthan High Court on May 30, 2011. He has been Chief Justice of the Gauhati High Court since February 15 this year.
"The Rajasthan High Court which is his parent High Court is a large High Court which does not have representation on the Bench of the Supreme Court. Mr Justice Mehta has served as a judge of the High Court for more than 12 years ... has acquired significant adjudicatory experience ... The judgments authored by him dealing with issues in various branches of law stand testimony to his legal acumen and competence ... will provide a value addition in terms of his acquired knowledge and experience.", the Collegium notes.
He is 23rd in the all-India High Court judges seniority list, and first among judges from his parent High Court.
The Supreme Court is currently working with 31 judges as against a sanctioned strength of 34.
Justice Sanjay Kishan Kaul is set to retire on Christmas this year.
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