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id_1697	2	Under Clause 2.1.3, the assignor, namely Yes Bank, is required to execute all documents as may be necessary for the purpose of perfecting the assignee's interest and therefore such a document is essential for any assignment of the pledge as none of the clauses contemplate a direct transfer of the pledged shares. No assignment as contemplated under Clause 2.1.3 has been executed between J.C. Flowers and Yes Bank., Mr. Seervai has submitted that the Pledge Deeds have not themselves been transferred or assigned in favour of J.C. Flowers by Yes Bank. The Pledgee under the Pledge Deeds continues to be Catalyst and Yes Bank has claimed to exercise rights under the Pledge Deeds as a Constituted Attorney/Proxy of the Plaintiff or a nominee of Catalyst in conjunction with being recorded as a beneficial owner. He has submitted that none of these puts Yes Bank into the shoes of Catalyst as a Pledgee or assignee of the pledge. Therefore, it is inconceivable that without an intervening assignment of the pledge from Catalyst in favour of Yes Bank and a subsequent assignment of the pledge from Yes Bank in favour of J.C. Flowers, J.C. Flowers can ever be said to have stepped into the shoes of Catalyst as Pledgee. In addition to this, no clause under the Assignment Agreement envisages a direct transfer of shares, being the underlying security for the loans, to Yes Bank. Any attempt, therefore, to claim rights in the shares without such transfer is impermissible in law., Mr. Seervai has thereafter referred to Section 31(b) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act which provides that the Act shall not apply to a pledge of movables within the meaning of Section 172 of the Indian Contract Act, 1872. While a pledge is included within the definition of the term financial asset of Section 2(l), no recourse can be had to the provisions of Section 5(3) in relation to a pledge in view of the embargo under Section 31(b). Section 5(3) itself opens with the words \Unless otherwise provided under the Act\. Further, a pledge is also specifically excluded from the definition of security interest under Section 2(zf) of the Act which means right, title or interest of any kind, other than those specified in Section 31., Mr. Seervai has submitted that acquisition of a financial asset under Section 5 is entirely different from the enforcement of a security interest under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act. Section 13(4) deals only with the enforcement of a security interest, which term expressly excludes a pledge under Section 31. The import of the exclusion of a pledge from Section 31 is that while pledged goods may be secured by retaining the underlying shares, a pledge cannot be enforced under the provisions of the Act., Mr. Seervai has submitted that a direct transfer of the underlying asset is envisaged only under Section 5(2-A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, which provides that the same is permissible where a bank or financial institution has financed the purchase of the asset in question. This is admittedly not the case in these proceedings., Mr. Seervai has submitted that, in the first instance, it was impermissible for Yes Bank to transfer the pledged share to J.C. Flowers; and thereafter, for J.C. Flowers to exercise voting rights over the shares. In so doing, J.C. Flowers, which is an Asset Reconstruction Company, is violating the provisions of Sections 9 and 10B of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, which provides that an Asset Reconstruction Company can take measures for the management of the business of a borrower only for the purposes of asset reconstruction. Dish TV, the company whose shares have been pledged, is not even a borrower under the expanded definition in Section 2(f) of the Act. While an acquisition of financial assets under Section 5(1)(b) may be permissible, the automatic transfer of shares in favour of the acquirer (viz. J.C. Flowers) is impermissible in the case of a pledge., Mr. Seervai has submitted that there is no case made out by Yes Bank/J.C. Flowers in their arguments in Sur‑Rejoinder that there are difficulties in the sale of the shares pledged. These excuses, urged for the first time in Sur‑Rejoinder, should not deter the Supreme Court of India from granting the reliefs prayed for by the Plaintiff. It is well settled that a party cannot take advantage of its own wrong. This is precisely what Yes Bank and J.C. Flowers seek to do. Acceding to these submissions would amount to the Supreme Court of India putting a premium on the illegal acts of commission and omission committed by Yes Bank/J.C. Flowers. The excuses that the percentage of shareholding pledged carries a special value can never be an excuse not to sell the suit shares and continue to illegally assert rights of ownership, which are antithetical to the status of a Pledgee., Mr. Seervai has submitted that, in view of the law set out above and the Plaintiff admittedly being owner of the shares, relief sought for in the Interim Application be granted and the Plaintiff be allowed to vote in all future meetings of Dish TV. The Supreme Court of India, in an order dated 23rd December 2021, expressly made the result of the AGM subject to the decision in the present Interim Application, which is now being heard finally by this Court. The results of subsequent General Meetings at which Yes Bank/J.C. Flowers have voted must also be subject to the decision in this Interim Application. In view of the overwhelming case made out by the Plaintiff, the Supreme Court of India ought to direct, if it so deems fit, that the depository's records should reflect that the shares are held by J.C. Flowers as a Pledgee and that the Plaintiff continues to be the beneficial owner. Such an outcome would balance equities as J.C. Flowers would be recognized as a Pledgee and the Plaintiff would be permitted to act in its capacity as owner and shareholder. This is without prejudice to the Plaintiff's case on fraud. Accordingly, the Supreme Court of India be pleased to grant the relief sought for in the Interim Application., Mr. Zal Andhyarujina, learned Senior Counsel appearing for Defendant No.3/Dish TV, has supported the submissions of Mr. Seervai. He has submitted that there are limited rights conferred on the Pledgee by Section 176 of the Indian Contract Act and that these rights are referred to as special property in the pledged goods. He has referred to the Privy Council decision in The Odessa (supra) which observed that the expression \special property\ excludes the notion of general property, which is the badge of ownership; that the Pledgee holds possession only for the purpose of securing himself for the advance made; and that the Pledgee cannot use the goods as his own., Mr. Andhyarujina has submitted that, with respect to the meaning of special property or special interest in the pledged goods, it is the right to property in the pledged goods only so far as is necessary to secure the debt advanced. He relied upon the Supreme Court decisions in Maharashtra State Cooperative Bank Limited (supra) at paragraphs 49 and 54, Lallan Prasad (supra) at paragraph 16, Bank of Bihar (supra) at paragraph 5, and PTC India (supra) at paragraphs 31, 35 and 5. He stated that the right includes possession of pledged goods as security and, in case of default, the right to bring a suit against the pledgor as well as to sell the goods after giving reasonable notice of sale. He further noted that the right in the pledged goods is higher than the mere right of detention but lesser than the general property rights in the goods, and that the Pledgee possesses a jus in rem similar to a lienholder, with the added incident that he can sell the property moto proprio without any assistance from the Court., Mr. Andhyarujina has submitted that the special property or special interest of the Pledgee is distinct from the general property in the pledged goods, which continues with the pledgor/owner, i.e., the Plaintiff, and wholly reverts to the pledgor/owner on discharge of the debt. He relied upon Bank of Bihar (supra) at paragraph 5 and Maharashtra State Co‑operative Bank Limited (supra) at paragraph 102. He further submitted that even the right to sell the pledged goods provided for in Section 176 of the Contract Act is on account of the implied authority of the pledgor., Mr. Andhyarujina has submitted that this special property is characteristic of a pledge and distinguishes a pledge from mortgage, lien, hypothecation, ownership, etc. He relied upon Md. Sultan and Others (supra) at paragraph 16., Mr. Andhyarujina has also referred to the Supreme Court decision in PTC India (supra), which drew a comparison between pledge, mortgage and ownership. He cited paragraphs 29 and 30 of PTC India (supra), noting that unlike a mortgagee, a pledgee acquires only special rights in the goods pledged. The Supreme Court in Maharashtra State Cooperative Bank Limited (supra) at paragraph 49 considered the special property to be a crucial ingredient of a pledge, making a pledge an intermediate between a simple lien and a mortgage which wholly passes the property in the thing conveyed., Mr. Andhyarujina has submitted that the rights of a Pledgee do not include the right to enjoyment of property but only the right of possession, as held in Md. Sultan (supra) and Shatzadi Begum Saheba (supra). The Andhra Pradesh High Court in Shatzadi Begum Saheba (supra) at paragraphs 23 and 29 held that where Pledgees were allowed to exercise rights of a shareholder, vote on shares, lodge shares with the company, the rights were more than could vest in a Pledgee and the transaction could not be a pledge but was, in fact, a mortgage., Mr. Andhyarujina has submitted that, in PTC India (supra), the Supreme Court held that the right to enjoyment is a right arising from ownership and not from a pledge (paragraph 29)., Mr. Andhyarujina has submitted that, in the decision of the Supreme Court in PTC India (supra), it was held that the sale of pledged goods by the Pledgee to itself is not conceived and does not constitute an actual sale under Section 176 of the Contract Act, amounting to conversion (paragraphs 63 and 64)., Mr. Andhyarujina has made submissions that the right to vote on shares is inseparable, unless the context otherwise requires, from the ownership of shares itself. Such rights are privileges incidental to the ownership of shares. He relied upon the Supreme Court decision in Chiranjit Lal Chowdhuri v. Union of India (supra) at paragraph 83, which held that personal rights flowing from the ownership of shares cannot by themselves be acquired, disposed of, or taken possession of., Mr. Andhyarujina has referred to the decision of this Court in E.D. Sasoon & Co. Ltd. v. K.A. Patch, where it was held that the right to vote is a property annexed to the share and is personal to the shareholder. He submitted that the right to vote cannot be decoupled from the shares and is a right that flows from and is incidental to ownership of the shares. The owner may vote pursuant to an arrangement at the behest of another or delegate another as a proxy to vote on his behalf, but such arrangements do not decouple the right to vote from the share or assign the right to vote; only the owner of the share has the right to vote. He relied upon the Supreme Court decision in Vodafone International Holdings BV v. Union of India (supra) at paragraph 110., Mr. Andhyarujina has referred to the Amended and Restated Deed of Pledge dated 17th December 2018, particularly clause 7.1(g), which provides for voting, even on default of the debt by the pledgor, by way of proxy. He submitted that this reiterates the position that the right to vote remains with the owner of the shares and does not pass to the Pledgee in any circumstances. He further referred to the Power of Attorney dated 1st May 2019, which provides for voting in case of default of the debt by the pledgor, by appointing proxies to attend meetings and vote, as evident from clause 3 of the same., Mr. Andhyarujina has submitted that, to the extent to which the Pledge Deed provides that voting rights stand pledged, namely clause 2.1(b) of the Pledge Deed, the same is ineffective as it is contrary to and inconsistent with the concept of special property in the goods pledged and with settled law that voting is a privilege incidental to ownership of shares. Accordingly, the Pledgee, with limited rights being special property, would not be entitled to vote on the shares., Mr. Andhyarujina has submitted that a security over shares with the right to vote or enjoyment is not a pledge but a mortgage of movables. He relied upon Shatzadi Begum Saheba (supra) and Md. Sultan (supra), wherein it is held that there is no enjoyment of goods in the case of a pledge. He stated that a Pledgee has only limited rights or special property in law; on default, the Pledgee can either bring a suit or sell with notice. Consequently, the Pledgee is not entitled to vote on shares or act as an owner of the shares., Mr. Andhyarujina has submitted that the controversy in the present case has arisen because the pledged goods in question are dematerialised shares and the arguments advanced by Yes Bank are based on the Depositories Act and Depositories Regulations. He submitted that neither the Depositories Act nor the Depositories Regulations have changed the position of the law of pledges or the Pledgee's rights under the Contract Act. This has been well settled by the Supreme Court in PTC India (supra), which considered Paragraphs 75 and 81 to 85. He further submitted that Paragraph 82 of PTC India (supra) holds that Sections 176 and 177 of the Contract Act are not obliterated and equally apply to pawned dematerialised securities as they apply to other pawned goods., Mr. Andhyarujina has submitted that the Supreme Court in PTC India (supra) acknowledged that there is only one area of conflict between the Depositories Act (and its bye‑laws, regulations, etc.) and the law of pledges, namely the Pledgor's right to redeem dematerialised shares from a third party on the ground that reasonable notice under Section 176 of the Contract Act was not given. He cited Paragraph 85 of PTC India (supra), which held that the dictum in Madholal Sindhu (Official Assignee of Bombay v. Madholal Sindhu, 1946 SCC OnLine Bom 47) and Nabha Investment (P) Ltd. v. Harmishan Dass Lukhmi Dass, 1995 SCC OnLine Del 239, that the Pawnee has a right to redemption against third parties when the Pawnee does not give reasonable notice under Section 176, would not apply to listed dematerialised securities sold in accordance with the Depositories Act, bye‑laws and rules. The Supreme Court further held that the Pawnee cannot make the sale of dematerialised securities without being registered as a beneficial owner, which is a step that a Pawnee must take before proceeding to sell the pledged dematerialised securities., Mr. Andhyarujina has submitted that the decision of PTC India (supra) makes it clear that the transfer of dematerialised shares from the dematerialised account of the Pledgor into the dematerialised account of the Pledgee is merely a step in aid of an immediate sale to a third party., Mr. Andhyarujina has also relied upon Paragraph 86 of PTC India (supra), which held that there is no disharmony between the provisions of the Contract Act and Sections 176 and 177 and the provisions of the Depositories Act; they can be read harmoniously without nullifying or altering their effect, subject to the exception in case of sale of listed securities to third parties. The provisions apply independently without hindering each other, as the subject‑matter of Sections 176 and 177 of the Contract Act differs from that of Sections 7, 10 and 12 of the Depositories Act and sub‑regulation (8) of Regulation 58 of the 1996 Regulations., Mr. Andhyarujina has submitted that the registration of the Pledgee as a beneficial owner does not make the Pledgee the beneficial owner in the true meaning of the term under the Depositories Act and Depositories Regulations, but only accords such status for the sale of the dematerialised shares and for procedural compliances. The right to redemption of a Pledgor continues even after the Pledgee has been registered and acquired status as beneficial owner and ceases only on actual sale to a third person (Paragraph 84 of PTC India supra)., Mr. Andhyarujina has thereafter referred to Section 25 of the Depositories Act, which empowers the Securities and Exchange Board of India to make regulations, thereby giving rise to the Depositories Regulations., He has referred to Regulation 58(8) of the Depositories Regulations, which states: \Manner of creating pledge or hypothecation (8) Subject to the provisions of the pledge document, the Pledgee may invoke the pledge and on such invocation, the depository shall register the Pledgee as beneficial owner of such securities and amend its records accordingly.\, Mr. Andhyarujina has submitted that Regulation 58(8) of the Depositories Regulations is only machinery for a Pledgee of dematerialised shares to sell these shares to a third person. There is no other way for a Pledgee of dematerialised shares, in the dematerialised regime, to sell the shares without first being registered as beneficial owner. However, this registration as beneficial owner is only for the purpose of sale., Mr. Andhyarujina has submitted that the reliance placed by counsel for Yes Bank Group/J.C. Flowers on Section 10(3) of the Depositories Act is misplaced, as Section 10(3) provides that the beneficial owner shall be entitled to all the rights and benefits and be subject to all the liabilities in respect of his securities held by a depository., He has submitted that a provision in a particular statute cannot be read to extend rights and liabilities from other statutes governing other areas of law, namely voting rights under the Companies Act., Mr. Andhyarujina has submitted that, under the dematerialised regime, the registered owner is always the depository itself and the beneficial owner is the person whose name is recorded as such. The reference to beneficial owner in Section 10(3) is therefore to the shareholder/owner of the shares, which in this case is the Pledgor, not to a Pledgee who has been given such status only for the purpose of sale of the pledged dematerialised shares to a third party. Any other reading would render the entire law of pledges otiose and would be contrary to the Supreme Court's decision in PTC India (supra), which held in Paragraph 86 that there has been no change to the law of pledges., Mr. Andhyarujina has thereafter referred to the definition of beneficial owner under Section 2(1) of the Depositories Act, which defines a beneficial owner as a person whose name is recorded as such with a depository. He noted that Section 2(1) is prefaced with the words \In this Act, unless the context otherwise requires\. In the present case, the context requires the term beneficial owner to be read differently for pledges., Mr. Andhyarujina has referred to the Supreme Court decision in K.V. Muthu v. Angamuthu Ammal, which held that the phrase \unless context otherwise requires\ must be applied where a definition or expression is preceded by those words. He submitted that the phrase must be applied in the present case concerning pledges; otherwise, the entire law of pledges would be rendered otiose and contrary to the Supreme Court's decision in PTC India (supra)., Mr. Andhyarujina has referred to Section 28 of the Depositories Act, which provides that the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force relating to the holding and transfer of securities. He submitted that the Depositories Act itself provides that it is in addition to and not derogatory to other laws relating to transfer of securities., Mr. Andhayarujina has further referred to Section 2 of the Companies Act, 2013, which is prefaced with the words \unless the context otherwise requires\. He submitted that the definition of member under Section 2(55) of the Companies Act must also be understood in the context of a pledge, particularly with respect to the status of the Pledgee as beneficial owner for the purpose of sale., Mr. Andhayarujina has submitted that the concept of a beneficial owner or member in the context of a pledge of dematerialised shares is a qualified concept. The qualification is that the Pledgee does not enjoy all the rights of the beneficial owner or member. The Pledgee is not a beneficial owner or member for any purpose other than the qualified purpose consistent with the Pledgee's limited rights and special property, which is to be on the register for an immediate sale to a third‑party purchaser of the dematerialised securities., Mr. Andhayarujina has submitted that the shares could not have been transferred from Catalyst to Yes Bank and onward. He stated that the Pledgee of the suit shares is admittedly Catalyst. A Pledgee having invoked the pledge by sending a notice under Section 176 of the Indian Contract Act, 1972, had only the option to sell the pledged shares to a third party. There was no option for Catalyst to simply transfer the shares to Yes Bank without consideration, and such an alleged transfer would be contrary to Section 176, which provides the Pledgee with only two options on default of the debt by the Pledgor., Mr. Andhayarujina has submitted that Section 176 of the Contract Act is mandatory and its applicability is not curtailed by any contractual provision to the contrary. The parties cannot contract out of Section 176, and on default of payment of debt, the only options are to bring a suit or to sell the pledged shares after giving reasonable notice., Mr. Andhayarujina has submitted that the shares could not have been assigned by Yes Bank to J.C. Flowers and that J.C. Flowers has no rights in the shares., Mr. Andhayarujina has submitted that, even assuming the transfer to Yes Bank were illegal, the assignment to J.C. Flowers also fails and J.C. Flowers would have no rights in respect of the suit shares. He stated that the provisions viz. Sections 5(2), 5(2A) and 5(3) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, which were relied upon on behalf of J.C. Flowers, are not applicable. Section 5(2) applies only where the bank or financial institution is a lender in relation to financial assets acquired by the asset reconstruction company. In the present case, Yes Bank is not a lender in relation to the pledged shares of Defendant No.3 and is not a lender to the Pledgee, i.e., the Plaintiff., Mr. Andhayarujina has submitted that Section 5(2) of the Act applies only where the bank holds any right, title or interest in any tangible or intangible asset to secure payment of any unpaid portion of the purchase price of such asset or an obligation incurred to enable the borrower to acquire the asset. Yes Bank has not financed the acquisition of the shares; therefore, this provision does not apply and no rights, title or interest vest in J.C. Flowers even assuming the shares could have been transferred to Yes Bank., Mr. Andhayarujina has submitted that Section 5(3) of the Act is also not applicable, as it is preceded by the words \Unless otherwise expressly provided by this Act\. This is significant in view of Section 31(b) of the Act, which provides that the Act does not apply to pledges of movables. Consequently, Section 5(3) does not apply to the present case, where the shares are movable goods, and no agreements or powers of attorney subsist after any alleged assignment in favour of J.C. Flowers.
id_1697	3	Andhayarujina supported the submissions of Mr. Seervai that there is no credible explanation on part of the Pledgee for failure to sell the pledged shares immediately. He submitted that Dish TV is a public listed company and its shares are freely traded on the Bombay Stock Exchange and National Stock Exchange. Accordingly, a market clearly exists for Dish TV's shares to be sold. Despite its obligations in law, Yes Bank and J.C. Flowers chose to squat on the shares, exercised rights of ownership such as the right to vote and participate in management of Dish TV by requisitioning meetings, bringing oppression and mismanagement proceedings and acted beyond the scope of a Pledgee, which it cannot be permitted to do in law. He submitted that Yes Bank and J.C. Flowers are not entitled to vote in respect of the pledged shares., Mr. Khambata, the learned Senior Counsel appearing for Defendant No.2 and Defendant No.10 viz. Yes Bank and J.C. Flowers, referred to the provisions under the Indian Contract Act which concern Pledgees. He submitted that Section 172 of the Indian Contract Act makes clear that a pledge is a form of bailment. Thus, the provisions setting out the law of bailment, viz. Sections 148 to 171, 180 and 181 of the Indian Contract Act, apply to pledges. Since Section 148 applies to pledges and Sections 149 to 171 and 180 to 181 apply to bailments as defined under Section 148, the said provisions also apply to pledges. Bailment contemplates contractual conditions of use and possession of bailed goods which may be prescribed in the contract of bailment. He submitted that the pledge deeds that are the subject matter of the present interim application are contracts of bailment setting out the conditions of use and possession of the suit shares, i.e., the bailed goods., Mr. Khambata relied upon the decision of the Supreme Court of India in PTC India (supra). The Supreme Court, while discussing the law of pledge, observes that Sections 148 to 171 of Chapter IX of the Indian Contract Act lay down the general law pertaining to bailments and pledges are a subset of bailments. The Supreme Court also referred to the case of Md. Sultan and Ors. (supra) which holds that a contract of pledge is a bailment of goods., Mr. Khambata referred to Section 180 of the Indian Contract Act under which the bailee has the same remedies as that of the owner of the goods in case of deprivation of use or possession of the goods bailed or for any injury to them by a third party. Under Section 181, whatever is obtained by way of relief or compensation in any such suit under Section 180 shall, as between the bailor and bailee, be dealt with according to their respective interests. He relied upon the decision of the Supreme Court of India in Morvi Mercantile Bank Ltd. v. Union of India and The Bank of Bihar (supra), wherein the Supreme Court applied both Sections 180 and 181 to pledges. He submitted that even prior to the enactment of the Depositories Act, a pledgee stood on the same footing as an owner as against third parties., Mr. Khambata submitted that a deed of pledge can include terms governing the pledge over and above those in Sections 172 to 179 of the Indian Contract Act. He noted that under Section 176, if the pawnor defaults in payment of the debt, the pawnee may bring a suit against the pawnor and retain the pledged goods as collateral security, or may sell the thing pledged on giving reasonable notice. However, the use of pledged goods by the pledgee post invocation of pledge but prior to sale is not barred either under Section 176 or any other provision of the Act. This includes exercise of voting rights if the pledged goods are shares., Mr. Khambata stated that it is a settled position of law that the Indian Contract Act, including the law of pledge, is not exhaustive. He relied upon the decision of the Supreme Court of India in Irrawaddy Flotilla Company Limited v. Bugwandass. In the decision of PTC India (supra) the Supreme Court held that the law of pledge must reflect flexibility in a transitional and commercial environment wherein significant changes have occurred across the capital market., Mr. Khambata also relied upon the decision of this Court in Madholal Sindhu (supra), wherein it was held that the scheme of the Indian Contract Act is that parties may incorporate into any contract any incident which is not contrary to or inconsistent with any provision contained in the Act., Mr. Khambata submitted that under common law, as can be seen from Chitty on Contracts – Law of Contracts, The Common Law Library, 34th Edition, Volume II, the right of the pledgee to use the thing pledged will depend upon the agreed terms of the pledge., Mr. Khambata submitted that nothing under Sections 172 to 179 of the Indian Contract Act prohibits parties to a pledge from contractually agreeing upon additional terms and conditions, so long as they are not in derogation of mandatory provisions of the Act., Mr. Khambata submitted that the decision of this Court in Madholal Sindhu (supra) considered a case where the pledge document sought to confer rights on a pledgee to sell the pledged shares without giving reasonable notice of sale. It held that this would be prohibited by the express provisions of Section 176 and thus void., Mr. Khambata submitted that the Supreme Court of India in PTC India (supra) approved this finding of Madholal Sindhu (supra). Moreover, PTC India holds that the pawnor has a right of redemption against third parties when the pledgee does not give reasonable notice under Section 176., Mr. Khambata submitted that the pledged deed which is the subject matter herein complied with Section 176 of the Indian Contract Act as it contains a provision mandating reasonable notice before sale, i.e., Clauses 7.3 and 8 of the pledged deed. Further, the pledgee has issued notice of sale to the plaintiff and the plaintiff’s right to redeem the suit shares from JCF remains intact., Mr. Khambata submitted that the decision relied upon by counsel on behalf of Dish TV viz. Shatzadi Begum Saheba (supra) differentiated a pledge from a mortgage of movables. However, that case compared a vanilla pledge with a vanilla mortgage and held that it was a mortgage of movables because it involved more than a mere delivery of shares. It did not consider the law on bailment of goods. It is settled law that pledge is a form of bailment and conditions of bailment can allow the use of bailed goods, i.e., pledged goods. Conditions of bailment are references to the contract of bailment, which in the present case is the pledge deeds. When the law does not prohibit parties from entering into an agreement containing a plain‑vanilla pledge and also containing additional contractual rights and obligations with respect to the same goods, it is absurd to suggest that a composite agreement containing all such rights and obligations (including that of pledge) would be contrary to law, or would lead to conversion, or would amount to a mortgage of movables., Mr. Khambata referred to the decision of the Supreme Court of India in PTC India (supra), wherein the Court expressly noted and recognized the contractual rights of the petitioner‑pledgee to transfer shares into its name or the name of its nominee and to exercise voting rights over the pledged shares. PTC India does not hold that such contractual rights would convert the pledge into a mortgage of movables., Mr. Khambata submitted that the plaintiff relied upon the decision of the Calcutta High Court in Mahamaya Debi (supra) to contend that the only right available to a mortgagee is the right of foreclosure. He submitted that this contention is misconceived in view of the decision in Arjun Prasad and Ors. v. Central Bank of India Ltd., wherein the Patna Court held that even a mortgagee has a right of sale. Further, the Madras High Court in L&T Finance Ltd. v. J.K.S. Constructions Pvt. Ltd. expressed doubt as to the ratio and correctness of Mahamaya Debi (supra)., Mr. Khambata dealt with the contention of the plaintiff and Dish TV that a pledge by operation of law creates a species of special property or special interest in the pledged goods in favour of the pledgee, whereas the general property or general interest in the pledged goods continues to vest in the pledgor by virtue of its ownership. He submitted that “special property” of a pledgee is a concept under common law. Sections 172 to 179 of the Indian Contract Act do not speak of any special interest or special property rights of a pledgee. Thus, there is no statutory bar from conferring any additional rights on a pledgee by contract, save and except any term that violates mandatory provisions of the Act. He submitted that none of the decisions relied upon by the plaintiff and Dish TV hold that voting rights cannot be exercised by a pledgee under a contract of pledge that expressly provides for the same. In none of these cases does the contract confer any additional rights on the pledgee to vote or otherwise beyond Sections 172 to 179., Mr. Khambata relied upon cases where contracts conferred special rights on the pledgee, including the right to vote, viz. Infrastructure Leasing and Financial Services Ltd. & Ors. v. Anupama Agarwal; Sarvopari Investments Pvt. Ltd. & Anr. v. Soma Textiles & Industries Ltd. & Ors.; and Bambino Finance Pvt. Ltd. v. Spectrum Power Generation Ltd. & Ors. In none of these cases was there a finding that the additional rights conferred on the pledgee were contrary to the provisions of the Act., Mr. Khambata referred to the decision of the Supreme Court of India in Lallan Prasad (supra), which had been relied upon by the plaintiff and Dish TV to contend that a pledge is an intermediate between a simple lien and a mortgage. He submitted that in that case the Court considered whether a pledgee can sue to recover the underlying debt and also keep the pledged property. The Court referred to the pledgee’s special property and the pledgor’s general property rights and held that satisfaction of a debt extinguishes a pledge and that upon such satisfaction the pledgee is bound to redeliver the pledged property. He noted that Lallan Prasad cites Halliday v. Holgate, which elucidates that a pledgee has the whole present interest in the pledged property until the debt is paid off., Mr. Khambata submitted that the express terms of the contract of pledge will prevail and, if there are no express terms, the pledgee may hold or even assign the pledged goods until the debt is discharged. He relied upon Donald v. Suckling at pages 604, 608 and 613. He submitted that the pledgee has a right to protect the pledged goods and its interests during the subsistence of the pledge., Mr. Khambata submitted that the extent of the special property of a pledgee will depend not only on the provisions of the Indian Contract Act but also on what additional rights are conferred on the pledgee by the contract of pledge., Mr. Khambata submitted that it is settled law that only a shareholder listed as a member in the register of members of a company is entitled to exercise voting rights over the shares. He relied upon the decision of the Supreme Court of India in Life Insurance Corporation of India v. Escorts Ltd. & Ors. at paragraphs 84, 95 and 100., Mr. Khambata submitted that even prior to enactment of the Depositories Act, the shareholder whose name was entered in the register of members had the right to vote at meetings of the company. The depositories and the company are statutorily obligated to recognize only a member and only a member is permitted to vote over such shares. He referred to the decision of the Supreme Court of India in Vodafone International Holding BV (supra) at paragraphs 271 to 273, wherein the Court recognized the doctrine against decoupling but nevertheless held voting agreements to be valid and enforceable. Such agreements do not conflict with the doctrine that voting rights cannot be decoupled from the shares., Mr. Khambata submitted that in the present case, JCF is the registered member and beneficial owner of the suit shares. Further, the plaintiff has, under the pledge deeds, authorized the pledgee inter alia to exercise voting rights in respect of the suit shares. This is provided for in Clauses 2.1(b), 5(b), 7.1(g), 10.3(d), 12(i) and (iii) of the pledge deeds. Further, the plaintiff has executed independent powers of attorney under which the plaintiff has appointed the pledgee as its proxy in law, including for the purposes of voting at Dish TV’s shareholder meetings., Mr. Khambata submitted that a grant of a proxy or power of attorney or a contractual obligation to vote in a particular manner is not to be misconstrued as decoupling the right to vote from the share. He submitted that post enactment of the Depositories Act, 1996, the Act and the Depositories Regulations are to be read harmoniously with provisions relating to contracts of pledge under the Indian Contract Act as held in PTC India (supra). Insofar as pledges of dematerialised shares are concerned, upon invocation of the pledge, the Depositories Act requires that the pledgee’s name be registered as the beneficial owner of the dematerialised shares in the records of the depository., Mr. Khambata referred to the relevant provisions of the Companies Act, 2013, the Depositories Act and Depositories Regulations on beneficial owner/member. He submitted that under the 1996 Regulations, upon invocation of the pledge, the depository shall register the pledgee as beneficial owner. In the decision of PTC India (supra), the Supreme Court held that no person, including the pledgee, can transfer the pawn held in dematerialised form without being registered as a beneficial owner. This is a mandatory stipulation which respects party autonomy and freedom to decide the terms of the pledge. He made specific reference to paragraphs 70 and 79 of PTC India., Mr. Khambata submitted that the Depositories Act provides for only two categories of owners: a registered owner, who is necessarily a depository, and a beneficial owner in whom all rights vest. He relied upon the decision of the Supreme Court of India in PTC India (supra) at paragraph 69, wherein it is held that the depository, as the registered owner, does not have any voting right or any other right in respect of the securities held by it. The beneficial owner is solely entitled to all rights, benefits, and liabilities attached to the securities. He submitted that this has been recognized in the judgment dated 23 June 2022 of the Division Bench of this Court, dismissing Commercial Appeal (L) No. 19252 of 2022, which challenged the order dated 17 June 2022 passed in Interim Application (L) No. 17730 of 2022 filed in the present suit. While the judgment is not binding on this Court, the reasoning at paragraphs 69, 70, 71, 74, 75, 76, 77, 78, 79, 82, 86 is instructive and is adopted by Yes Bank/JCF as their submissions., Mr. Khambata submitted that PTC India (supra) has unequivocally held that it is absolutely necessary that the pledgee must be accorded status of beneficial owner to enable him to exercise his right to sell the pledged dematerialised securities (paragraph 80). He also relied upon paragraphs 7, 11, 84, 85 of the same decision. He submitted that a pledgee is not deemed to be a beneficial owner by some legal fiction, but is in fact the beneficial owner with all rights, benefits and full status of beneficial ownership., Mr. Khambata submitted that the Depositories Act does not contemplate different classifications of beneficial owners; a party may either be a beneficial owner or not. There is no concept of a “lessor” or “pledgee” beneficial owner who has a right to sell but no other right, as contended by the plaintiff and Dish TV. The Supreme Court of India in PTC India (supra) expressly notes and recognizes the contractual right of the petitioner‑beneficial owner to transfer shares into its name or the name of its nominees and to exercise voting rights over the pledged shares., Mr. Khambata submitted that a company is duty‑bound in law to recognize only a beneficial owner/member whose name appears on the register of members as having all rights and benefits, including voting rights in relation to shares. He relied upon Section 106(1) and (2) of the Companies Act and also on Swadeshi Polytex (supra) at paragraphs 29 and 36., Mr. Khambata submitted that the definitions of “beneficial owner” and “member” under Section 2(1)(a) of the Depositories Act and Section 2(55) of the Companies Act are caveated by the words “unless the context otherwise requires”. These definitions must be read down in the context of the common law principle to mean a pledgee‑beneficial owner who cannot have the full rights of a member. He submitted that Dish TV has not demonstrated that the context of the definition of member in Section 2(55)(iii) of the Companies Act, 2013 or of beneficial owner in Section 2(1)(a) of the Depositories Act does not require adopting a meaning other than that expressed in the statutes. He submitted that words not defined in the Companies Act shall have the meanings assigned to them in the Depositories Act (Section 2(95) of the Companies Act). Thus, a beneficial owner is not defined under the Companies Act and therefore its meaning under Section 2(1)(a) of the Depositories Act will have to be read into the Companies Act. Consequently, a beneficial owner under the Depositories Act will also be a member under Section 2(55)(iii) of the Companies Act. Neither Act envisages curtailing the definition of beneficial owner by restricting the rights of a pledgee who has been conferred the status of beneficial owner., Mr. Khambata submitted that voting rights have been expressly conferred on the pledgee, both under the pledge deeds and under the powers of attorney. He referred to the relevant clauses in the pledge deed wherein voting rights have been conferred upon the pledgee. He submitted that it is settled law that the pledgee is entitled to exercise the pledgor’s voting rights over the pledged shares as an agent of the pledgor under a proxy or power of attorney given to it by the pledgor. He referred to Section 105 of the Companies Act, which confers a right on a member to appoint a proxy to vote on behalf of such member at meetings of the company, and Rule 19 of the Companies (Management and Administration) Rules, 2014, which provides that the appointment of proxy shall be in Form No. MGT‑11. He submitted that the decision of the Supreme Court of India in Gharda Chemicals Limited v. Jer Rutton Kavasmaneck at paragraphs 30 and 32 held that if a power of attorney contains all requisite particulars, such an instrument can be treated as a proxy. It has been further held by the Andhra Pradesh High Court in Bambino Finance Pvt. Ltd. (supra) at paragraphs 66 to 68, 79 to 83 that a power of attorney authorizing the pledgee to vote is binding and enforceable as against the pledgor where the power of attorney was part of the pledge deed., Mr. Khambata submitted that the transfer of the suit shares, i.e., the security assets under the pledge deeds, first in the name of Catalyst, then to Yes Bank and finally to JCF, is permitted under the terms of the pledge deeds, powers of attorney, and law. He submitted that upon enforcement of security, the plaintiff has authorized the pledgee to transfer or cause any of the security assets to be transferred to and registered in the name of any of its successors, assigns or transferees, relying upon Clause 4.1(b). Upon default, the pledgee is entitled to enforce the security interest, take possession of or dispose of all or any part of the suit shares in any manner permitted by law, and cause all or any part of the suit shares to be transferred into its name or its nominees as provided in Clause 7.1(a) and (c). The plaintiff has undertaken not to stop any transfer of suit shares in the name of the pledgee or its nominee as provided in Clause 10.3(b). The pledgee has been appointed as the plaintiff’s attorney to do all acts in relation to any of the security assets and is empowered to delegate the powers conferred on it by the pledge deed (including the power of attorney) to any person, as provided in Clause 12 and Clause 18., Mr. Khambata submitted that the transfers of suit shares are also permitted under law. Regulation 58(8) of the 1996 Depositories Regulations (identical to Regulation 79(8) of the 2018 Depositories Regulations) provides for invocation of the pledge and registration by the depository of the pledgee as the beneficial owner of the securities. Further, in the decision of the Supreme Court of India in PTC India (supra), it has been held that the transfer of shares by a pledgee to its own name is not considered a sale., Mr. Khambata submitted that the special interest of a pawnee includes the right to assign his special property or interest in the pledged goods, as held by the Supreme Court of India in PTC India (supra) at paragraph 34 and in The Bank of Bihar (supra) at paragraph 5. He noted that PTC India recognizes that the law permits transfer of pledged shares to a nominee of the pledgee, relying upon paragraphs 99‑101 of that decision., Mr. Khambata submitted that the transfer of suit shares from Yes Bank to JCF took place pursuant to the Assignment Agreements dated 16 December 2022, whereby Yes Bank’s stressed asset portfolio aggregating up to INR 48,000 crore was assigned to JCF together with the underlying security created thereunder under the provisions of the SARFAESI Act, 2002. The assignment includes assignment of the loans provided by Yes Bank to the borrowers (defendant nos. 4 to 9). As a result, the suit shares of Dish TV previously held by Yes Bank as beneficial owner are now held by JCF (by itself, through Yes Bank in its capacity as agent of its security trustee and through its security trustee)., Mr. Khambata submitted that Section 5 of the SARFAESI Act provides for acquisition of a financial asset by an asset reconstruction company and prescribes the rights of the ARC on such acquisition. He referred to the definition of “financial asset” in Section 2(l), which includes a pledge of movable property. He also referred to Sections 5(1), 5(2) and 5(3), which provide for acquisition of financial assets by an ARC by way of an agreement with the bank for transfer of financial assets. In that event the buyer of these assets, i.e., the ARC, would be treated as the lender for all purposes. He submitted that there can be no doubt that the ARC is the new pledgee of these shares and its right to deal with these pledged shares is absolute. Therefore, the ARC is required to be recognised as pledgee by all third parties, including statutory authorities. He relied upon the decision of the Delhi High Court in UV Asset Reconstruction Company Ltd. v. Union of India & Ors. (supra) at paragraph 9., Mr. Khambata submitted that the contention of counsel for the plaintiff that the pledgee cannot claim that it is a member under the Companies Act and can hold the suit shares forever without selling them is misconceived. It is well settled that the pledgee cannot be compelled by the pawner to sell the pledged goods. Power to sell is conferred on the pledgee for his benefit and it is his sole discretion to exercise the power of sale or not.
id_1697	4	Even where the value of the goods deteriorates due to time, no relief can be granted to the pawnor against the pawnee as the pawnor is legally bound to clear the debt and obtain possession of the pawned goods. In this context he has relied upon PTC India (supra) at Paragraph 39, 42 and 62., Mr. Khambata has submitted that though Yes Bank was desirous of selling the suit shares, there were circumstances which prevented it from doing so. He has referred to the order passed by the Saket District Court restraining Catalyst and Yes Bank from selling and/or transferring 44,53,48,990 shares of Dish TV (including the suit shares). The order operated for over nine months (from October 2020 to August 2021) when the Saket Court proceedings were withdrawn by the borrowers. Thereafter, notices were issued by the Uttar Pradesh Police under Section 102 of the Code of Criminal Procedure, 1973 by which Yes Bank was constrained from acting on the suit shares from 5 November 2021 to 30 November 2021. He has submitted that the suit shares will have to be sold to a strategic buyer considering that it amounts to approximately 25.63 percent of Dish TV's share capital. Further, in view thereof various litigations are pending which have been initiated by or at the behest of the Essel Group, and no buyer is willing to purchase the suit shares., Mr. Khambata has further submitted that although on the one hand the plaintiff claims that Yes Bank and JCF are wrongly holding on to the suit shares and are exercising ownership rights over them with no intention to sell, on the other hand the plaintiff by the interim application is seeking, inter alia, to restrain Yes Bank and JCF from creating third‑party rights in any manner in respect of the suit shares. This averment was prior to the amendment introducing the alleged case of fraud., Mr. Khambata has thereafter dealt with the allegations of the plaintiff with regard to fraud in relation to the pledge deeds. He has submitted that Sections 17 and 19 of the Indian Contract Act inter alia provide that when consent to an agreement is caused by fraud or coercion, the agreement is a contract voidable at the option of the party whose consent was so caused. He has submitted that Section 23 of the Indian Contract Act deals with contracts that are rendered void due to unlawful consideration or object and provides that if the object or consideration of an agreement is unlawful (for inter alia being fraudulent), the agreement is void. Section 24 further adds that if any part of a single consideration for one or more objects, or any part of several considerations for a single object, is unlawful, the agreement is void., Mr. Khambata has submitted that the plaintiff’s case of fraud is based on the complaint dated 24 September 2021 filed by Yes Bank with the Economic Offences Wing, Mumbai. The plaintiff has claimed that the complaint was recently discovered by the plaintiff and it confirms and reiterates the contents of the criminal complaint dated 22 June 2020 filed by Mr. Subhash Chandra. The plaintiff has placed reliance on Lazarus Estates Ltd. (supra) to submit that fraud unravels all and vitiates judgments, contracts and all transactions and that nothing that has been obtained by fraud can be permitted to stand. Mr. Khambata has submitted that the plaintiff’s reliance on Lazarus is entirely misplaced as in the case Lazarus, a landlord had obtained a decree from a County Court on the basis of a false and fraudulent declaration pertaining to repairs in a rent increase form. An appeal against the decree was allowed and the tenant was permitted to raise the defence of fraud. He has submitted that the plaintiff has plucked out a stray sentence from the judgment and taken it out of context to claim that fraud vitiates all., Mr. Khambata has submitted that in Master versus Miller, the Supreme Court of India only dealt with material alterations of the deed or contract without the privity of the obligee and holds that such alterations render the instrument void. He has submitted that no case of contractual fraud of the nature alleged by the plaintiff was alleged or dealt with in Lazarus or in Master versus Miller and these cases therefore do not apply to the facts of the recent case. He has submitted that Master versus Miller has been explained by the Supreme Court of India in M.S. Anirudhan versus Thomco’s Bank Ltd. The Supreme Court held that an alteration made in a deed after its execution, which is not material, does not in any way affect the validity of the deed; it appears that an alteration is not material which carries out the intention of the parties already apparent on the face of the deed. He has submitted that as per Sections 17 and 19 of the Indian Contract Act, fraud renders a contract voidable (not void) and the ratio in Lazarus, if accepted as argued by the plaintiff, would render Sections 17 and 19 of the Indian Contract Act otiose., Mr. Khambata has submitted that a contract is rendered void ab initio when there is fraud as to the character of the contract, i.e., there is no consent between parties as a result of (a) a material alteration to the original contract; or (b) signing of the contract by a person believing it to be an entirely different document. This doctrine applies only to a particular set of facts and circumstances. It cannot be stretched to apply to cases of fraud and/or misrepresentation as to contents of the document, such as in the present matter., Mr. Khambata has submitted that in the present case all the parties to the pledge deeds, including the plaintiff, were fully aware of the character and nature of the documents that were being executed, i.e., the documents were deeds of pledge whereby the plaintiff was pledging certain shares held by it in favour of Catalyst for the benefit of Yes Bank as security for the loans advanced by Yes Bank., Mr. Khambata has submitted that it is a settled position under English law and Indian law that a transaction is void in the case of a fraudulent misrepresentation as to the character of the document and in the case of a fraudulent misrepresentation as to the contents of the document, the transaction is merely voidable and continues to be valid until it is avoided. He has relied upon the authorities which have considered this position, namely: (i) the House of Lords in Saunders (executrix of the estate of Rose Maud Gallie, deceased) versus Anglia Building Society; (ii) Ningawwa versus Byrappa Shiddappa Hireknrabar and others; (iii) Mohan Vishnu Satardekar versus Life Insurance Corporation; (iv) Ramesh Mali versus M/s Samrat Associates and others; (v) Dularia Devi versus Janardan Singh and others., Mr. Khambata has submitted that in order to establish that the pledge is void, the plaintiff would have to meet the narrow test of fraud as to character which it does not meet. It is not the plaintiff’s case that the plaintiff was tricked into signing something that turned out to be a different document altogether. In the present case, the plaintiff has explicitly acknowledged in the plaint at paragraphs 2, 5, 8, 8D, 11, 24C, 24H, 24I that the underlying transaction was a loan and the transaction impugned in the suit was a pledge, thus demonstrating that the plaintiff had full knowledge of what it was signing. The plaintiff’s case on fraud is that the borrowers were induced to avail loans and they believed that the money would be used for one purpose but the money was subsequently used for another purpose. The plaintiff’s case is predicated on the loan transaction, that is to say that if the loan falls so must the pledge. He has submitted that a borrower corporation advised by a board of directors availing a loan, utilizing the loan amounts and then claiming that someone in their own organisation misused the loan amounts is not a case of fraud on the borrowers and/or the plaintiff‑pledger., Mr. Khambata has submitted that it is settled law that an innocent party upon discovering fraud must avoid the transaction and such avoidance relates back to the inception of the transaction. Until such avoidance, the contract remains valid in law. This has been held in decisions of Ningawwa. Thus, a finding of fraud with respect to the loan transactions would at the highest render the transaction voidable at the instance of the defrauded parties., Mr. Khambata has submitted that the plaintiff has put together an incredible and unbelievable story to further its case and mislead this court. The plaintiff in fact had knowledge of the alleged fraud prior to the date of filing of the present suit, i.e., prior to 16 December 2021. He has adverted to the proceedings in the Saket District Court at New Delhi which refers to and annexes the FIR registered pursuant to the Subhash Chandra complaint and ongoing criminal investigation into the Subhash Chandra complaint. It is the plaintiff’s own case that the Economic Offences Wing complaint confirms and reiterates the contents of the Subhash Chandra complaint. However, the suit filed by Defendant No.5, Essel Co‑operative Resources Private Limited in the Saket District Court at New Delhi only seeks to invalidate the invocation of the pledge and not the pledge itself. Identical suits were filed by other borrowers but all the suits were ultimately withdrawn by the borrowers with liberty to file fresh suits. No such fresh suits have been filed., Mr. Khambata has submitted that the Oppression and Mismanagement Petition, being Company Petition No. 411 of 2021 filed by Yes Bank before the National Company Law Tribunal, Mumbai, demonstrates that the Subhash Chandra complaint and the alleged fraud were within the knowledge of the plaintiff as early as 20 November 2021. The plaintiff is respondent No. 15 in the Oppression and Mismanagement Petition and has admittedly been served a copy of the petition. The petition contains a detailed recounting of the Subhash Chandra complaint and the FIR registered in the matter and annexes both the Subhash Chandra complaint and the FIR dated 12 September 2020. The petition also makes a reference to the Economic Offences Wing complaint and the proceedings filed by the borrowers before the Saket District Court., Mr. Khambata has submitted that despite having prior knowledge of the alleged fraud, the plaintiff did not and has not till date addressed a letter or any communication seeking to avoid the pledge transactions and/or the pledge deeds on account of being voidable on grounds of fraud. He has submitted that even the plaint, both as originally filed and as amended till date, contains no averment to the effect that the plaintiff has avoided the transactions and/or the pledge deeds., Mr. Khambata has thereafter referred to various paragraphs of the plaint filed in the present suit in support of his submission that despite having knowledge of the alleged fraud, the plaintiff, instead of avoiding the pledge deeds, has in fact elected to affirm them. The plaintiff proceeds on the basis that the pledge deeds and the underlying related transactions are valid., Mr. Khambata has thereafter referred to the amended plaint and has submitted that the pleadings on fraud have been inserted belatedly into the plaint and now the plaint as amended seeks, inter alia, a declaration to the effect that the pledge deeds are void. However, paragraphs 7, 11, 12, 18, 21‑24 and prayer clauses 36(b) and 36(c) of the plaint (which evince affirmation of the pledge deeds by the plaintiff) continue to appear in the amended plaint. The reliefs sought by the plaintiff pursuant to the said amendment are in addition to those sought prior to the amendment. He has submitted that the plaintiff is attempting to ride two horses simultaneously by propounding the pledges as well as praying for them to be declared void, and is thereby attempting to take advantage of the very pledges that it claims are void., Mr. Khambata has thereafter referred to the authorities which establish that once a party has elected to affirm a contract, whether expressly or by implication, it cannot later seek to avoid it, namely: Clough versus London and North Western Railway Company; Kunja Lal Bhuiya versus Haralal Bhuiya; Mumbai International Airport Private Limited versus Golden Chariot Airport and others., Mr. Khambata has thereafter dealt with the plaintiff’s case on fraud under Section 23 of the Indian Contract Act. He has submitted that the contention of the plaintiff that the consideration for the pledge of the suit shares (under the pledge deeds) being the advancement of loans by Yes Bank, is tainted by fraud and renders the pledge of the suit shares void under Sections 23 read with 24 of the Indian Contract Act is misconceived. He has submitted that Section 23 deals with contracts that would be rendered void due to unlawful consideration or object. In the present case, nothing about the granting of the loans which are the stated consideration under the pledge deeds is illegal or unlawful since the loans were advanced by Yes Bank and accepted by the borrowers. He has submitted that the plaintiff is alleging illegality in use of the loan amounts, which does not render the loans themselves illegal or unlawful. He has submitted that even if the allegations contained in the Subhash Chandra complaint to the effect that the borrowers were induced to take the loans are accepted arguendo, fraud or illegality as contemplated under Section 23 is not made out., Mr. Khambata has referred to the decision of the Supreme Court of India in Gurmukh Singh versus Amar Singh wherein the Supreme Court explained that a contract for the commission of a fraud (upon a third party or for a purpose prohibited in law) would be fraudulent in its object or consideration. He has submitted that it is not the plaintiff’s case that the pledge deeds were entered into as a fraud upon someone. The consideration for the pledge deeds, viz. the loans advanced to the borrowers (the Essel Group), were misutilised by the borrowers but this will not render the object or consideration of the pledge deeds fraudulent. At the highest, that would be a case of fraud upon the plaintiff to secure the plaintiff’s consent, i.e., under Sections 17 and 19 of the Indian Contract Act., Mr. Khambata has accordingly submitted that even if the plaintiff’s case of fraud is accepted, it would at the highest render the pledge deeds and the loan agreements voidable under Sections 17 and 19 and would not render them void ab initio under Section 23 of the Indian Contract Act. The loan transactions, until they are avoided by the borrowers, would be valid. Similarly, the pledge deeds, until avoided by the plaintiff, would be valid. Once the plaintiff has elected to affirm the pledge deeds it is not open to the plaintiff to resile from such election. It is in fact the borrowers’ case that the loan transactions can be declared void only after investigation under the FIR and adjudication of proceedings filed on the basis of the Subhash Chandra complaint. Thus, there is no challenge to the loan transaction, let alone an adjudication by any court of law on the issue of the alleged illegality and/or alleged fraud in respect of the loan transactions., Mr. Khambata has submitted that the plaintiff’s case is that the entire loan transaction was designed to disguise evergreening of Videocon loans by Yes Bank and make it appear like a bona fide acquisition of Videocon by the Essel Group. According to the plaintiff, the entire scheme was orchestrated by Yes Bank for evergreening of Yes Bank’s loans to the Videocon Group. This would at the highest be a non‑compliance with Reserve Bank of India guidelines with regard to evergreening of loans. He has submitted that it is trite that non‑compliance with RBI guidelines may attract penal action from the RBI, however, such non‑compliance does not render the transactions void. Therefore, evergreening which is prohibited under extant law would not make the loan transactions themselves unlawful. He has relied upon the decision of the Supreme Court of India in BOI Finance versus Custodian and others and also upon the decision of the Supreme Court of India in IL&FS Financial Services Limited versus SKIL Infrastructure Limited and others, where the Supreme Court held that non‑observance of prudent lending norms, including in relation to evergreening, would not render the loan transactions void., Mr. Khambata has submitted that the plaintiff’s case of alleged fraud, that Yes Bank advanced huge loans worth INR 5,270 crore to the borrowers – the Essel Group – so that a sum of INR 1,500 crore (approximately) could be utilised by the Videocon Group to repay its outstanding dues to Yes Bank, is an incredible argument. He has submitted that this does not make any commercial sense as no bank would advance upwards of INR 5,000 crore to evergreen outstanding dues worth INR 1,400 crore. This theory offers no explanation for the remaining INR 4,000 crore (approximately) which was clearly used by the borrowers for extraneous purposes., Mr. Khambata has submitted that Sections 64 and 65 of the Indian Contract Act provide for restitution in case of voidable or void contracts. Section 64 provides that the party rescinding a voidable contract shall restore the benefit it received thereunder to the person from whom it was received. Section 65 provides that when an agreement is discovered to be void, or when a contract becomes void, the person receiving advantage under such agreement is bound to restore it or compensate the person from whom he received such advantage. He has submitted that assuming, whilst denying that the plaintiff is entitled to avoid the pledge deeds or that the pledge deeds are declared void, and assuming that Yes Bank/JCF is therefore bound to return the suit shares, the benefit received by the plaintiff/borrowers (defendants Nos. 4‑9) under the loan transactions and pledge deeds (being the loan amounts) must also be returned to Yes Bank/JCF. A party rescinding a voidable contract is bound to restore benefit obtained thereunder under Sections 64 and 65 of the Indian Contract Act. He has relied upon the decision of the Delhi High Court in Murlidhar Chatterjee versus International Film Co. Ltd., Mr. Khambata has submitted that under the pledge deeds the pledgor is the principal debtor from whom the pledgee may at its option recover the amounts due under the loans, without exercising any rights against the borrowers. He has placed reliance upon the decision of the Madras High Court in Merit Resorts Private Limited versus Canara Bank where it was held that without restoration of the benefit received, i.e., the loan amounts, the borrowers cannot seek to rescind a mortgage created for securing the loan – a case which has also not been dealt with by the plaintiff., Mr. Khambata has submitted that there is no merit in the plaintiff’s contention that the first part of Section 65 of the Indian Contract Act (where a contract is void ab initio) would apply, whereby there is a duty to restore the benefit received under a void agreement only to an innocent third party. The plaintiff has further contended that it is Yes Bank and perhaps the borrowers who received advantage or benefit under the pledge deeds, whereas the plaintiff received no benefit; therefore it is Yes Bank who is bound to restore the suit shares to the plaintiff who is purportedly an innocent third party. He has submitted that this is contrary to the clauses of the pledge deeds which expressly state that the consideration for the pledgor under the pledge deeds is the advancement of the loans to the borrowers who have in fact received and utilized the loan amounts. The plaintiff has not clarified why it pledged the suit shares in the first place if no consideration or benefit was received by it under the pledge deeds. Thus, the plaintiff cannot claim to be an innocent third party. The plaintiff had knowledge of the alleged fraud even prior to the filing of the present suit. Further, there is interconnection between the Essel Group and the Jawahar Lal Goel Group., Mr. Khambata has submitted that the plaintiff cannot conflate two separate types of fraud and substitute one for the other. It is settled law that the fraud must be proved as pleaded in its plaint; a charge of fraud must be substantially proved as laid and when one kind of fraud is charged another kind of fraud cannot be substituted in its place. He has relied upon the decision of the Supreme Court of India in Abdool Hoosein Zenail Abadin versus Charles Agnew Turner and the Supreme Court in Bijendra Nath Srivastava versus Mayank Srivastava in this context., Mr. Khambata has submitted that the plaintiff has not produced any evidence in support of its case of fraud. The plaintiff has only relied upon the complaints filed before investigation authorities, affidavits filed by investigating authorities and letters issued by such authorities to establish its case on fraud. The affidavit dated 10 January 2022 filed by the State of Uttar Pradesh in SLP (Criminal) No. 9192 of 2021 makes it clear that the same has been filed based on a preliminary investigation and it does not purport to render any conclusive finding with respect to the validity of the documents and transactions being investigated under the Subhash Chandra complaint. He has submitted that the Economic Offences Wing letter dated 21 April 2022 closing the preliminary enquiry in respect of the Economic Offences Wing complaint proves that the Subhash Chandra complaint and the Economic Offences Wing complaints are the same. The letter merely closes the preliminary enquiry since the same transactions, i.e., the loan and pledge transactions, are already being investigated by the Uttar Pradesh Police under the Subhash Chandra complaint., Mr. Khambata has submitted that it is settled law that even a final report of the investigating officer under Section 173(2) of the Code of Criminal Procedure, 1973 is his mere opinion on the materials collected by him and the truth of the offence can only be decided by the court. In this context he has relied upon the decision of the Supreme Court of India in Rajesh Yadav and another versus State of Uttar Pradesh at paragraph 25., Mr. Khambata has accordingly submitted that there is no merit in the interim application and accordingly it deserves to be rejected., Having considered the submissions, the issue which arises for determination is whether the deed of pledge can include terms governing the pledge over and above those contained in Sections 172 to 179 of the Indian Contract Act. It is the case of the plaintiff that the rights of the pledgee are limited to those prescribed in Section 176 of the Indian Contract Act. In the present case the pledgee has exercised voting rights in respect of the suit shares., Section 176 of the Indian Contract Act reads as follows: If the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale., In Madholal Sindhu, the Division Bench of the Delhi High Court had considered the question as to whether the terms of Section 176 of the Indian Contract Act are mandatory and override the provisions of any contract to the contrary. The Delhi High Court held that the scheme of the Indian Contract Act is that it is competent for parties to incorporate into any contract any incident which is not contrary to or inconsistent with any provision contained in the Act. But they can only override a specific provision contained in the Act provided the particular section dealing with that provision contains a saving clause in respect of special contracts to the contrary. If one looks at the various sections of the Indian Contract Act, some of them specifically mention in the absence of a contract to the contrary. There is no such saving clause in Section 176, and in my opinion its provisions are mandatory, and it is not open to parties to contract themselves out of those provisions., The said decision has to be read in light of the facts of that case. There, the pledge documents sought to confer rights on the pledgee to sell the pledged shares without giving reasonable notice of sale. The Delhi High Court held that the conferring of such rights is prohibited by the expressed mandatory provision viz. Section 176 of the Indian Contract Act and thus void., The plaintiff has placed reliance upon Madholal Sindhu in support of its contention that the pledgee has only a two‑fold right under Section 176 of the Indian Contract Act: (i) to bring a suit against the pawner upon the debt or promise, and retain the goods pledged as a collateral security; and (ii) to sell the thing pledged on giving the pawner reasonable notice of the sale. It is the plaintiff’s contention that the conferring of voting rights upon the pledgee by the contract, i.e., the pledge deeds, would constitute contracting out of Section 176 which is prohibited. In my prima facie view, this contention is misplaced. The Delhi High Court in Madholal Sindhu was not concerned with the issue which arises herein, namely whether the conferring of voting rights upon the pledgee constitutes contracting out of Section 176. It is a settled position that the Contract Act, including law of pledge, is not exhaustive. This has been held by the Privy Council in Irrawaddy Flotilla. Further, in PTC India, the Supreme Court has expressly noted and recognized the contractual rights of the pledgee to transfer shares into its name or in the name of its nominees and to exercise voting rights over the pledged shares. Further, the provisions of the Contract Act governing pledges viz. Sections 172 to 179 do not prohibit parties from contractually agreeing upon additional terms and conditions, so long as they are not in derogation of the mandatory provisions of the Act. Prima facie, there is no bar to the pledgee, upon invocation of the pledge, exercising voting rights in respect of the pledged goods, i.e., shares., In the present case, the mandatory provision of Section 176 of the Indian Contract Act which provides for giving a reasonable notice prior to sale has in fact been complied with. The pledge deeds mandate reasonable notice to be given before the sale, i.e., Clause 7.3 and 8 of the pledge deed. The pledgee, in compliance with the clauses of the pledge deeds which are in terms of the mandatory provision of Section 176 of the Indian Contract Act, issued notice of sale to the plaintiff and the plaintiff’s right to redeem the suit shares from JCF remains intact.
id_1697	5	Thus in my prima facie view, the Pledge Deeds in the present case which confer voting rights on the Pledgee beyond what is specified and expressly provided for under Section 176 of the Contract Act cannot be voided as it is permissible for the parties to incorporate into the Pledge Deeds any incident which is not contrary to or inconsistent with the said provisions governing Pledges in the Contract Act., There have been submissions made by the Plaintiff and/or Dish TV on the distinction between pledge and mortgage of movables and contending that the right of enjoyment of pledged goods such as right to vote is inconsistent with the pledge but consistent with a mortgage of movables. In my view the decision of the Andhra Pradesh High Court in Shatzadi Begum (Supra) relied upon by the Plaintiffs in this context is inapplicable to the present case as the Court in that case had not considered the law of bailment of goods. In my prima facie view a pledge is a form of bailment and this is apparent from Section 172 of the Contract Act. The Supreme Court of India in PTC India (Supra) holds that pledges are nothing but a subset of bailment and Sections 148 to 171 and 180 and 181 of the Contract Act will apply to a pledge. Further, the use of pledged goods by the Pledgee post invocation of pledge but prior to sale is not barred either under Section 176 or any other provision of the Contract Act., In the present case the use of the pledged goods will include exercise of voting rights since the pledged goods are shares. Thus, in my prima facie view the Pledge Deeds by including in its terms the exercise of voting rights of the Pledgee will neither be contrary to law nor lead to conversion nor would amount to a mortgage of movables., There is much merit in the submissions of Yes Bank/JCF that Shatzadi Begum (Supra) was a case wherein a vanilla pledge was compared to a vanilla mortgage to hold that the case was a mortgage of movables and not a pledge since it involved more than a mere delivery of the shares., There have been submissions on behalf of the Plaintiff and Dish TV that a pledge by operation of law creates a species of special property or special interest in the pledged goods in favour of the Pledgee; whereas the general property in the pledged goods (which includes rights of enjoyment of the pledged goods) continues to vest in the Pledgor by virtue of its ownership of the pledged goods. Various decisions have been relied upon on behalf of the Plaintiff to contend that the Pledgee only has a special right or special interest in the pledged goods and cannot include the exercise of a right to vote in so far as the pledge shares are concerned. Apart from Shatzadi Begum (Supra), the Plaintiff as well as Dish TV has relied on Bank of Bihar (Supra), The Odessa (Supra), Maharashtra State Cooperative Bank Ltd. (Supra) and Md. Sultan & Ors. (Supra) in support of these contentions. Having perused these decisions, I do not find any of these decisions holding that voting rights cannot be exercised by a Pledgee under contract of pledge. These cases do not consider as in the present case a contract conferring additional rights on the Pledgee i.e. to vote or otherwise, beyond Sections 172 to 179 of the Contract Act. In none of these cases was there a finding that the additional rights conferred on the Pledgee were contrary to the Contract Act. Special property or special interest are concepts under common law and there is no statutory bar under the Contract Act from conferring any additional rights on a Pledgee by a contract, save and except any term that violates the mandatory provisions of the Contract Act., The authorities relied upon by Yes Bank/JCF which include the judgments of this Court in IL and FS Limited (Supra), Sarvopari Investments Pvt. Ltd. (Supra) and Bambino Finance Pvt. Ltd. (Supra) have all considered contracts conferring special rights on the Pledgee, including the right to vote and in none of these cases was there a finding to the effect that additional rights conferred on the Pledgee were contrary to the Contract Act. Further, in PTC India (Supra), the Supreme Court of India has noted the concept of special property in a Pledgee and despite which has held that the contract of pledge can contain any terms governing the pledge. This has been held in paragraph 28 of the said decision. In the case before the Supreme Court the additional terms included voting rights., The decision of the Supreme Court of India in Lallan Prasad (Supra) has been relied upon by the Plaintiff and Dish TV to contend that a pledge is an intermediate between a simple lien and a mortgage. This decision is required to be read in light of the facts of that case. The issue for determination was whether the Pledgee can sue to recover the underlying debt and also keep the pledged property. The Supreme Court in that context referred to the Pledgee's special property and the Pledgor's general property rights in the pledged goods and held that satisfaction of a debt extinguishes a pledge or pawn and that upon such satisfaction the Pledgee is bound to redeliver the pledged property. In Lallan Prasad (Supra) a reference has been made to the decision of the Court in England viz. Halliday v. Holgate (Supra) which elucidates what special property would mean for a bailee with respect to bailed goods i.e. a Pledgee has the whole present interest in the pledged property until the debt is paid off., Having considered these decisions, I am of the prima facie view that the express terms of the Deed of Pledge will prevail and where there are no express terms, the Pledgee may hold or assign the pledged goods until the debt is discharged. This has also been held in the English case of Donald v. Suckling (Supra). The Pledgee has a right to protect the pledged goods and its interest therein during the subsistence of the pledge., I have been taken through the provisions of the Companies Act, the Depositories Act and the 1996 Depositories Regulations (replaced by the 2018 Regulations) from which it is clear that only a shareholder listed as a member in the Register of Members of a company is entitled to exercise voting rights over the shares. This has also been held by the Supreme Court of India in LIC v. Escorte Ltd. (Supra). In Vodafone International Holding BV (Supra), the Supreme Court recognized the doctrine against decoupling of shares i.e. the right to vote cannot be decoupled from the shares but nevertheless held voting agreements to be valid and enforceable. Such agreements do not conflict with the doctrine that voting rights cannot be decoupled from the shares., In the present case, the Plaintiff has under the Deeds of Pledge authorized the Pledgee to exercise voting rights in respect of the suit shares and this is borne out from Clauses 2.1(b), 5(b), 7.1(g), 10.3(d), 12(i) and (iii) of the Pledge Deeds. Further, independent powers of attorney have been executed under which the Plaintiff has appointed the Pledgee as its proxy in law, including for the purposes of voting at the Dish TV shareholder meetings. It is well settled that a proxy or power of attorney or a contractual obligation to vote in a particular manner is not to be misconstrued as decoupling the right to vote from the share. The decision relied upon by the Plaintiff viz. Swadeshi Polytex (Supra) in support of its contention that the pledgor company in that case was permitted to exercise the voting rights with respect to the pledged shares is inapplicable to the facts of the present case. In that case, unlike the present case, the Pledgee had neither invoked the pledged shares nor was the Pledgee registered as a member of the company in its Register of Members. In my view, the said decision confirms that only the holder of the shares whose name is entered in the Register of the company has a right to vote at the meetings of the company., In the present case, it would be necessary to consider the position post enactment of the Depositories Act, 1996 and the 1996 Depositories Regulations. In my view, both are required to be read harmoniously with the provisions relating to contract of pledge under the Contract Act. In the present case, the Pledgee was registered as beneficial owner of the dematerialised suit shares in the record of the depository. Regulation 58(8) of the 1996 Depositories Regulations, which is pari materia with Regulation 79(8) of the 2018 Depositories Regulations, provides as follows: Subject to the provisions of the pledge documents, the Pledgee may invoke the pledge and on such invocation, the depository shall register the Pledgee as beneficial owner of such securities and amend its records accordingly., Thus, under the Depositories Regulations upon invocation of the pledge, the depository is mandatorily to register the Pledgee as a beneficial owner and that no person, including the Pledgee, can transfer the pawn held in dematerialised form without being registered as a beneficial owner. This has been held in the case of PTC India (Supra). This mandatory stipulation has been held in PTC India (Supra) not to curtail or restrict, but on the other hand to respect party autonomy and freedom to decide the terms of the pledge., Having perused the Depositories Act and the relevant provisions viz. Section 10 which pertains to rights of depositories and beneficial owner and Section 12 which pertains to pledge or hypothecation of securities held in a depository, it is clear that there are only two categories of owners, the registered owner who is necessarily a depository and a beneficial owner in whom all the rights vest., In PTC India (Supra), the Supreme Court of India in Paragraph 69 held as follows: The Depositories Act establishes the depository ecosystem and introduced concepts of registered listed owner and beneficial owner. The depository as the registered owner does not have any voting right or any other right in respect of the securities held by it. The beneficial owner shall be solely entitled to all rights, benefits, and liabilities attached to the securities held by the depository. Further, the Supreme Court in PTC India (Supra) at Paragraph 80 held as follows: It is absolutely necessary that the Pledgee must be accorded status of beneficial owner to enable him to exercise his right to sell the pledged dematerialised securities. The beneficial owner shall be solely entitled to all rights, benefits in respect of the shares (Section 10(3) read with PTC India paragraph 69). Thus, a Pledgee is not deemed to be a beneficial owner by some legal fiction but is in fact the beneficial owner with all rights, benefits and full status of beneficial ownership., Thus, it is necessary for the Pledgee to be accorded the status of beneficial owner for the Pledgee to exercise his right to sell the pledged dematerialised securities. In my prima facie view, this does not limit the status and right of the beneficial owner and does not in any manner dilute or restrict such status., Having perused the relevant provisions of the Depositories Act, it is clear that the Depositories Act does not contemplate different kinds of beneficiary owners. There is no limitation on the Pledgee's rights as beneficial owner and no limitation as to the Pledgee having right to sell but having no other right. Thus, the contention on behalf of the Plaintiff and/or Dish TV to the effect that the only rights which the Pledgee has upon being transposed as beneficial owner, under the Depositories Act and the Depository Regulations, is only for effecting the sale and does not contemplate the exercise of voting rights by the Pledgee upon invocation of the pledge does not merit acceptance., A company is duty bound in law to recognise only a beneficial owner/member whose name appears on the register of members as having all rights and benefits including voting rights in relation to the shares. I do not find any merit in the submission on behalf of Dish TV that the definition of beneficial owner and member under Section 2(1)(a) of the Depositories Act and Section 2(55) of the Companies Act, having been caveated by the words 'unless the context otherwise requires', must be read down in the context of the said common law principle to mean a Pledgee beneficial owner who cannot have the full rights of a member. In the present case there is no context that permits such interpretation to be placed on the said definitions under the Companies Act and/or Depositories Act. Further, Dish TV has not been able to demonstrate that the definition of member or beneficial owner under the Companies Act and Depositories Act requires adopting a meaning other than as the definitions and provisions of these Acts expressly provide., It has been provided in Section 2(95) of the Companies Act that where the words are not defined under that Act, they shall have the meaning assigned to them under the Depositories Act. Since a beneficial owner is not defined under the Companies Act, its meaning under Section 2(1)(a) of the Depositories Act necessarily will have to be read into the Companies Act. Accordingly, a beneficial owner under the Depositories Act will also be a beneficial owner for the purpose of the Companies Act and the beneficial owner will be a member under Section 2(55)(iii) of the Companies Act. The Depositories Act has a counterpart provision to Section 2(95) of the Companies Act, viz. Section 2(2) of the Depositories Act, which provides that where the words are not defined in the Companies Act, they shall have the meanings assigned to them in the Depositories Act. Further, neither of these Acts envisage a curtailment or colouring of the definition of beneficial owner under Section 2(1)(a) of the Depositories Act by restricting the rights of a Pledgee who has been conferred the status of beneficial owner., Now coming to the contention of the Plaintiff and/or Dish TV that the transfer of the suit shares first in the name of Catalyst then to Yes Bank and finally to JCF is in violation of law, I do not find any merit in this contention. In my prima facie view, these transfers are permitted by the Pledge Deeds under which the Plaintiff has authorised the Pledgee to transfer or cause any of the suit shares defined as security assets therein to be transferred to and registered in the name of any of its successors, assigns or transferees as provided in Clause 4.1(b) of the Deeds of Pledge. It has been further provided under Clause 7.1(a) and (c) of the Deeds of Pledge that the Pledgee is entitled to enforce the security interest and take possession and dispose of all or any part of the suit shares in any manner permitted by law upon such terms as the Pledgee determines and to cause all or any part of the suit shares to be transferred into its name or its nominees. The Plaintiff has under Clause 10.3(b) of the Deeds of Pledge undertaken not to stop or attempt to stop any transfer of suit shares in the name of the Pledgee or its nominee. Further, the powers of attorney dated 1st May 2019 and 6th May 2019 allow the Pledgee to delegate the powers conferred on the Pledgee under the power of attorney to any other person as can be seen from Clause 18 of the powers of attorney. The transfer of shares by the Pledgee to its own name are permitted under law. These transfers are not considered to be a sale as can be seen from the decision of PTC India (Supra) at paragraphs 95 and 105. This has also been recognised in Bank of Bihar (Supra)., There have been various submissions made with regard to the transfer of suit shares from Yes Bank to JCF. This transfer took place pursuant to the Assignment Agreement dated 16th December 2022 under which Yes Bank's stressed asset portfolio aggregating up to INR 48,000 crore approximately was assigned to JCF together with the underlying security created thereunder. The assignment included assignment of the loans provided by Yes Bank to, inter alia, the borrowers viz. Defendant Nos. 4 to 9. Accordingly, the suit shares of Dish TV previously held by Yes Bank as beneficial owner (in its own name and/or through security trustees) are now held by JCF., Section 5 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) expressly provides for acquisition of a financial asset by an asset reconstruction company (ARC) and prescribes the rights of the ARC on such acquisition. Further, the definition of financial asset under Section 2(l) of the SARFAESI Act includes a pledge of movable property. I have perused Section 5 and in particular Sections 5(1), 5(2) and 5(3) of the SARFAESI Act. Section 5(1) provides for an ARC to acquire financial assets of a bank by way of an agreement with the bank for the transfer of the financial assets. Under Section 5(2), the ARC on such acquisition shall be deemed to be the lender and all rights of such bank in relation to financial assets vest in the ARC. Under Section 5(3) all contracts which relate to the financial assets to which the bank is a party, the ARC shall after such acquisition be enforceable as if in place of the bank, the ARC has been a party thereto., Upon a reading of the relevant provisions of the SARFAESI Act, it is clear that the transfer of the suit shares from Yes Bank to JCF is permitted and JCF as ARC is deemed to be a party to the Pledge Deeds as the Pledgee. The Pledge Deeds under Section 5(3) of the SARFAESI Act read with the definition of financial asset are enforceable against JCF. It has been held in the decision of the Delhi High Court in U.V. Asset Reconstruction Company Ltd. v. Union of India, that the ARC upon acquisition of the financial assets and/or NPA account along with all assets including pledge shares, is to be recognised as Pledgee of all third parties including statutory authorities., The contention of the Plaintiff, namely that Section 5(3) of the SARFAESI Act is caveated by the words 'unless otherwise expressly provided by this Act' and that Section 31(b) of the SARFAESI Act excludes the application of the Act to a contract for pledge, is not acceptable. If this interpretation of the Plaintiff were to be accepted, it would render Sections 5(1) and 5(2) read with the definition of financial asset in Section 2(l) otiose in respect of pledges. Thus, this interpretation of the Plaintiff cannot be considered a possible interpretation., The other provision, namely Section 5(2A) which the Plaintiff has relied upon to contend that this is the only provision which JCF could, if at all, have placed reliance upon, is inapplicable in the present case as the borrowers have not purchased the suit shares from the loan funds as contemplated thereunder. However, it is not necessary to consider that provision having held that the transfer to JCF is permissible under the aforementioned provisions viz. Section 5 read with Section 2(l) of the SARFAESI Act., Thus, in my prima facie view, the suit shares stand transferred to JCF and that this is pursuant to the Assignment Agreement which provides for the assignee to acquire loans and underlying security interest and pledges in respect of the loan as can be seen from recital C thereof read with Clause 2.1.2 thereof which provides for the assignment by the assignor of the right, title and interest in the financing documents in respect of the loans and the exercise of rights by the assignee in relation to the security interests and pledges. Further, it is clarified in Clause 2.3.1 of the Assignment Agreement that nothing other than a financial asset as defined in the SARFAESI Act is acquired by the assignee. I further do not find any merit in the contention of the Plaintiff that JCF is trying to manage the affairs of Dish TV under Sections 9 and 10 of the SARFAESI Act. It has been clarified by JCF that it is not enforcing its rights under the SARFAESI Act., The contention of the Plaintiff that the Pledgee cannot claim that it is a member under the Companies Act and hold suit shares forever without selling them is misconceived. It has been held in PTC India (Supra) that the Pledgee cannot be compelled by the Pledgor to sell the pledged goods. The power to sell is conferred on the Pledgee for his benefit and it is his sole discretion to exercise the power of sale or not. Even where the value of the goods deteriorates due to time, no relief can be granted to the Pledgor against the Pledgee as the Pledgor is legally bound to clear the debt and obtain possession of the pledged goods. Reference can be made to paragraphs 39, 42 and 62 of PTC India (Supra) in this context., I have considered the facts which have been adverted to wherein it is apparent that though Yes Bank was desirous of selling the shares, there were circumstances which prevented it from doing so including orders passed in the proceedings before the Saket District Court as well as notice issued by Uttar Pradesh Police under Section 102 of the Code of Criminal Procedure, 1973 constraining Yes Bank from selling the suit shares. Further, the Plaintiff by the present interim application has sought a restraint on Yes Bank/JCF from creating third party rights in any manner in respect of the suit shares., Having held that the transfer to JCF is lawful and the Pledgee can contractually exercise voting rights, the allegations of fraud are now dealt with. The Plaintiff has in the amended plaint alleged that the deeds of pledge are vitiated by fraud. It is the contention of the Plaintiff that the alleged fraud was recently discovered by the Plaintiff i.e. from the complaint dated 24th September 2021 filed by Yes Bank with the Economic Offences Wing, Mumbai (EOW). The Plaintiff has maintained that the EOW complaint confirms and reiterates the contents of the criminal complaint dated 22nd June 2020 filed by Mr. Subhash Chandra. The Plaintiff contends that as per the EOW complaint, Yes Bank has admitted that the loan transaction was not for the purpose stated in the loan document but was to be utilized for paying the outstanding debt owed to Yes Bank by the Videocon group., I have perused the material on record including the aforementioned two complaints. In my prima facie view, the Plaintiff had prior knowledge of the alleged fraud i.e. prior to the filing of the present suit but despite which the Plaintiff did not avoid the pledge deeds. The alleged fraud does not, in my prima facie view, render the loan transaction void but at the highest would render the transaction voidable at the instance of the defrauded party. The suit dated 14th October 2020 filed by Defendant No.5, Essel Corporate Resources Pvt. Ltd. before the Saket District Court at New Delhi, being one of the suits filed by the borrowers challenging Yes Bank's invocation of the pledged shares, demonstrates that the borrowers were aware of the allegations of fraud as early as October 2020. The suit has referred to the FIR registered pursuant to Subhash Chandra's complaint and ongoing criminal investigation into Subhash Chandra's complaint. The suit only seeks to invalidate the invocation of the pledge and not the pledge itself. There were identical suits filed by the borrowers. Ultimately all the suits were withdrawn by the borrowers with liberty to file fresh suits. However, no such fresh suits have ever been filed. Further, the oppression and mismanagement petition being Company Petition No. 411 of 2021 dated 21st November 2021 filed by Yes Bank before the National Company Law Tribunal, Mumbai demonstrates that the Subhash Chandra complaint and the alleged fraud was within the knowledge of the Plaintiff on 20th November 2021. There is a reference made to the Subhash Chandra complaint and FIR registered, both of which have been annexed to the petition. Further, the oppression and mismanagement petition makes a reference to the EOW complaint and the proceedings filed by the borrowers before the Saket District Court., The Plaintiff has not addressed any communication seeking to avoid the pledge transaction and/or pledge deeds and has in fact elected to affirm them. The Plaintiff's election can be seen from the plaint (unamended) where the Plaintiff proceeds on the basis that the pledge deeds and underlying/related transactions are valid. A reference has been made on behalf of Yes Bank/JCF to the paragraphs of the plaint wherein the Plaintiff has proceeded to propound the pledges by acknowledging that there exist valid pledge deeds in respect of which the Plaintiff possesses rights under Section 176 of the Contract Act. These paragraphs remain in the plaint (as amended)., In my prima facie view, the Plaintiff's allegation of fraud vitiating the pledge deeds and rendering them illegal and unlawful is misconceived. This is upon considering the fraud alleged viz. loan advances by Yes Bank being unlawfully used for collateral purposes i.e. greening of loans by Yes Bank. At the highest the fraud alleged would be one which falls under Sections 17 and 19 of the Contract Act. Thus, the alleged fraud being voidable, it was necessary for the Plaintiff to have avoided the pledge deeds in the event the Plaintiff's case of fraud is accepted. It is well settled that in the event a defrauded party has elected to affirm the pledge deeds, it is not open to the Plaintiff to resile from such election. The decisions relied upon on behalf of Yes Bank viz. Clough v. London and North Western Railway Company (Supra), Kunja Lal Bhuiya v. Haralal Bhuiya (Supra) and Mumbai International Airport Pvt. Ltd. v. Golden Chariot (Supra) are apposite., The reliance placed by the Plaintiff on Lazarus Estates Ltd. (Supra) is misconceived. In that case, although it has been held that fraud unravels all and vitiates judgments, contracts and all transactions, this has been held in the facts of that case. There a landlord had obtained a decree from a County Court on the basis of a false and fraudulent declaration pertaining to repairs in a rent increase form. An appeal against the decree was allowed and the tenant was permitted to raise the defence of fraud. It was in these circumstances that the court held that fraud vitiates all. This was a case of contractual fraud and in that context Lazarus Estates Ltd. (Supra) has relied upon Master v. Miller (Supra). The latter case only dealt with material alterations of the deed or contract without the privity of the obligee and in that context it was held that such alterations render the instrument void. Hence, these cases do not apply to the present case., In my prima facie view, the parties to the pledge deeds including the Plaintiff were fully aware of the character and nature of the documents namely the deeds of pledge that were executed. By the deeds of pledge, the Plaintiff was pledging certain shares held by it in favour of Catalyst for the benefit of Yes Bank as security for the loans advanced by Yes Bank.
id_1697	6	Thus, no case has been made out of there being a fraud as to the character of the contract which would render the document void ab initio. Fraud as to character of the contract are cases where either there is a material alteration to the original contract or signing of the contract by a person believing it to be an entirely different document. The fraud alleged in the present case, if accepted, at the highest is a fraud as to the contents of the document / Deeds of Pledge which does not render the document void but voidable. It is a settled position under English law and Indian law that a transaction is void in the case of fraudulent misrepresentation as to the character of the document and in the case of fraudulent misrepresentation as to the contents of the document, the transaction is merely voidable and continues to be valid until it is avoided. The decision of the House of Lords in Saunders (executrix of the estate of Rose Maud Gallie, deceased) (supra), Ramesh Mali (supra) and Dularia Devi (supra) relied upon by Yes Bank is apposite in this context., I find no merit in the contention on behalf of the Plaintiff that the case of fraud falls under Sections twenty‑three and twenty‑four of the Indian Contract Act. The Plaintiff has relied upon these provisions in contending that the consideration for the pledge of the Suit Shares under the Pledge Deeds being the advancement of loans by Yes Bank, the same is tainted by fraud and is unlawful. Section twenty‑three of the Indian Contract Act deals with contracts that would be rendered void due to unlawful consideration and or object. This provision is not attracted in the present case where there is nothing about the granting of loans being illegal or unlawful consideration since the loans were advanced by Yes Bank and accepted by the Borrowers. The Plaintiff has alleged illegality in respect of the use of the loan amount, which does not render the loans themselves illegal or unlawful. Prima facie, I do not find that a case of fraud as contemplated under Section twenty‑three is made out., The Supreme Court in Gurmukh Singh (supra) has explained that a contract for commission of a fraud upon a third party or purpose prohibited in law would be fraudulent in its object or consideration. It is not the Plaintiff’s case that the Pledge Deeds were entered into as a fraud upon someone. The fact that the consideration for the Pledge Deeds viz. the loans advanced to the Borrowers (the Essel Group) were mis‑utilised by the Essel Group will not render the object or consideration of the Pledge Deeds fraudulent. At the highest, that would be a case of fraud upon the Plaintiff to secure the Plaintiff’s consent i.e. under Sections seventeen and nineteen of the Indian Contract Act. In fact, it is the Borrowers’ case that loan transaction can be declared void only after investigation under the First Information Report and adjudication of proceedings filed on the basis of Mr Subhas Chandra’s complaint. There is no challenge to the loan transactions in any court of law on the issue of alleged illegality or fraud in respect of the loan transactions., The Plaintiff’s case of alleged fraud is that the entire loan transaction was designed to disguise evergreening of Videocon loans by Yes Bank and make it appear like a bona fide acquisition of Videocon by the Essel Group. According to the Plaintiff, the entire scheme was orchestrated by Yes Bank for evergreening of Yes Bank’s loans to the Videocon Group. It is well settled that non‑compliance with Reserve Bank of India guidelines may attract penal action from the Reserve Bank of India, however, such non‑compliance does not render the transactions void. Therefore, evergreening which is prohibited or impermissible under extant law would not make the loan transactions themselves unlawful. The Supreme Court in BOI Finance (supra) and IL&FS Financial Services Ltd. (supra) has held that non‑compliance of the Reserve Bank of India guidelines or directions does not invalidate the contract or loan transactions and they would not be rendered void., The submission on behalf of Yes Bank that it is inconceivable that Yes Bank would have advanced a loan of Indian Rupees five thousand two hundred seventy crore to the Borrowers, Essel Group so that a sum of Indian Rupees one thousand five hundred crore (approximately) could be utilized by the Videocon Group to repay its outstanding dues to Yes Bank is of much merit. Further, there is no explanation provided as to whether the balance Indian Rupees four thousand crore was used by the Borrowers for extraneous purposes., In the event the Plaintiff’s case of alleged fraud and the Plaintiff being entitled to avoid the Pledge Deeds is accepted, the benefit received by the Plaintiffs or Borrowers under the loan transaction and Pledge Deeds are required to be returned to Yes Bank or Joint Credit Facility under Sections sixty‑four and sixty‑five of the Indian Contract Act which provides for restitution under voidable or void contracts. It is provided that a party rescinding a voidable contract is bound to restore the benefit received thereunder to the person from whom it was received. This will apply to a contract which is discovered to be void or when the contract becomes void. It is insufficient for the Plaintiff to seek return of the Suit shares from Yes Bank or Joint Credit Facility on the ground that it is entitled to avoid the Pledge Deeds and or the Pledge Deeds are required to be declared void. They must also return the benefit received under the loan transactions and the Pledge Deeds to Yes Bank or Joint Credit Facility. I prima facie do not find any merit in the contention of the Plaintiff that the Plaintiff has received no benefit from the loan transaction and Pledge Deeds and that it is Yes Bank and proposed Borrowers having received the benefit under the Pledge Deeds are required to restore the Suit shares to the Plaintiff. The Pledge Deeds themselves provide that the consideration for the Pledgor under the Pledge Deeds is the advancement of the loan to the Borrowers. The Borrowers having received and utilized the loans, it cannot be said that the Plaintiff has not received any benefit from the loan transaction and Pledge Deed. Further, the Plaintiff has not clarified why the Suit shares were pledged by them in the first place if no consideration or benefit was received by the Plaintiff under the Pledge Deeds. I do not find merit in the Plaintiff’s claim to be an innocent party., I am of the prima facie view that, at this stage the Plaintiff has not produced any evidence in support of its case of fraud. The Plaintiff has only relied upon the complaints filed before the investigating authorities, affidavits filed by the investigating authorities and or letters issued by such authorities in support of its case on fraud. It can be seen from the affidavit dated tenth January two thousand twenty‑two filed by the State of Uttar Pradesh in Supreme Court of India Special Leave Petition (Criminal) No. 9192 of 2021 that the investigation is indeed preliminary. The said affidavit does not purport to render any conclusive finding with respect to the validity of the documents and transactions being investigated under the Subhash Chandra’s complaint. Further, the Economic Offences Wing complaint dated twenty‑first April two thousand twenty‑two is a preliminary inquiry and has been closed in view of the investigation by the Uttar Pradesh Police under the Subhash Chandra’s complaint., I find much merit in the submission on behalf of Yes Bank or Joint Credit Facility that an investigation report including a final report cannot be relied upon by the Plaintiff to prima facie establish its case of fraud under Section one hundred seventy‑three sub‑section two of the Code of Criminal Procedure, nineteen seventy‑three. A final report of an investigation officer would be a mere opinion on the material collected by him and truth of the offence can only be decided by the Court. The decision of the Supreme Court in the case of Rajesh Yadav and others (supra) relied upon by Yes Bank or Joint Credit Facility is apposite. Thus I am of the view that the Plaintiff has failed to establish a prima facie case of fraud., In view of the prima facie finding that Joint Credit Facility, presently registered as beneficial owner, is having all rights, benefits and liabilities attached to the securities held by the depository including voting rights as well as the prima facie finding that no case of fraud having been established by the Plaintiff, the interim relief sought for in the present Interim Application cannot be granted., Accordingly, the Interim Application is disposed of. There shall be no order as to costs.
id_17	0	The Collegium of the Supreme Court of India has recommended the names of seven Additional Judges of the High Court of Judicature at Allahabad for appointment as permanent judges in the following terms: Shri Justice Umesh Chandra Sharma, Smt Justice Renu Agarwal, Shri Justice Ram Manohar Narayan Mishra, Shri Justice Mayank Kumar Jain, Shri Justice Shiv Shanker Prasad, Shri Justice Gajendra Kumar, Shri Justice Nalin Kumar Srivastava. On 1 May 2023, the Collegium of the High Court of Judicature at Allahabad unanimously made the above recommendation. The Chief Minister and Governor of the State of Uttar Pradesh have concurred with the recommendation. In terms of the Memorandum of Procedure, the judges of the Supreme Court who are conversant with the affairs of the High Court of Judicature at Allahabad were consulted with a view to ascertain the suitability of the Additional Judges for being appointed as permanent judges. The Committee of two judges of the Supreme Court constituted by the Chief Justice of India in terms of the Resolution dated 26 October 2017 of the Supreme Court Collegium has assessed the judgments of the Additional Judges. With a view to assess the merit and suitability of the Additional Judges for appointment as permanent judges, we have scrutinized the material placed on record including the opinion of the consultee judges and the report of the Judgment Evaluation Committee. On an overall consideration of the above proposal, the Collegium is of the view that Shri Justices Umesh Chandra Sharma, Smt Renu Agarwal, Ram Manohar Narayan Mishra, Mayank Kumar Jain, Shiv Shanker Prasad, Gajendra Kumar, and Nalin Kumar Srivastava, Additional Judges, are fit and suitable for being appointed as permanent judges. In view of the above, the Collegium resolves to recommend that Shri Justices Umesh Chandra Sharma, Smt Renu Agarwal, Ram Manohar Narayan Mishra, Mayank Kumar Jain, Shiv Shanker Prasad, Gajendra Kumar, and Nalin Kumar Srivastava, Additional Judges, be appointed as permanent judges of the High Court of Judicature at Allahabad against the existing vacancies.
id_1700	0	Writ Petition (Civil) Numbers 13307 and 13498 of 2021 dated 7 July 2021. Petitioner K. Vijayan, through Advocate, has filed the instant public interest litigation seeking the following reliefs: (i) Issue a writ of mandamus or any other appropriate order or directions compelling respondents 1 to 3 to issue necessary orders to start sale of liquor in the bar hotels within the State that have a licence, immediately. (ii) Issue a writ of mandamus or any other appropriate order or directions compelling respondents 1 to 3 to evolve effective, speedy measures for the sale of liquor so as to avoid gathering of people for purchasing the same from the Beverages Corporation outlets. (iii) Issue a writ of mandamus or any other appropriate order or direction compelling respondents 1 and 5 to take effective steps against violation of Covid‑19 protocol and the provisions in Extension P2 Regulation and P3 Ordinance., Mr. C. Rajendran, learned counsel for the petitioner, relied upon the number of bars, beer and wine parlours, bar hotels and the Government policy directing bar hotels to sell liquor at the retail price offered by Indian Made Foreign Liquor shops run by the Beverages Corporation. He submitted that this policy affects the interest of bar hotels and consequently liquor is not sold in bar hotels, resulting in crowding of people in the Indian Made Foreign Liquor shops. In the circumstances, the petitioner sought issuance of prayer No. 1, questioning whether the writ petition is filed to prevent crowding or to start sale of liquor in bar hotels. The counsel clarified that he is not pressing prayer No. 1 but submitted that Covid‑19 protocol and regulations issued from time to time by the Government have not been followed in letter and spirit. Referring to the number of Covid cases from 18 June 2021 to 29 June 2021, extracted in the statement of facts, he prayed that appropriate directions may be issued to prevent crowding in liquor shops., Taking note of a letter dated 2 July 2021 of an Honourable Judge of the High Court of Kerala, a suo motu public interest litigation, Writ Petition (Civil) Number 13498 of 2021, has been registered in the matter of crowding and queues in front of liquor shops during the Covid‑19 pandemic. The decision in My Hindustan Paints v. State of Kerala (2017 (3) KHC 717) has been referred to in the letter. Photographs appended to the letter show large gatherings and long queues in front of liquor shops where social distancing is not maintained. These shops are located on roadsides and near residential buildings., The photographs show that even between 10 a.m. and 12 noon on a given day the queues are so long that they circle the by‑road once and cause complete obstruction to every institution and residents of the said road. The High Court of Kerala, in reaction to these averments and the obvious nuisance, directed on 18 April 2017 that the sixth respondent, Sub‑Inspector of Police, Thrissur, shall ensure that the business establishments of the petitioners are not obstructed by the queue formed in the shop owned by the Kerala State Beverages Corporation. On 30 June 2017, when the matter was taken up, the learned counsel for the petitioners submitted that despite the orders of the High Court on 18 April 2017, no steps had been taken by the police and the queues continued to be a constant feature. The Court issued an order directing the sixth respondent to inform the Court of the specific steps taken to ensure that such nuisance is abated., Sri. Santhosh Mathew, learned counsel for the petitioners, brought to the Court’s notice Exhibit P2 judgment, wherein another learned Judge of the High Court of Kerala had directed the Assistant Excise Commissioner to convene a meeting of the petitioners and the official respondents to consider the complaint and arrive at a reasonable and practicable solution. He submitted that the facts involved in the present case deserve orders that are more effective and that remedial action by the competent authorities has become imminent and must be taken without further delay., Sri. T. Naveen, learned Standing Counsel for the fifth respondent, stated that the position with respect to the alleged nuisance is now completely different from that at the time the writ petition was instituted. He said that steps have been taken by the Excise Authorities to ensure that such nuisance is controlled, if not abated completely, and that additional counters have been opened to ensure that the queues do not become very long or winding., The Court considered the pleadings and submissions in detail. It is indisputable that the Excise Authorities are burdened with the statutory obligation to ensure that no nuisance is caused by their outlets. The duty of the Commissioner of Excise to ensure peace and morality in the area where the licensed shops operate, including the power to transfer offending shops to another site, is prescribed under Rule 11 of the Foreign Liquor Rules, which provides: ‘It shall be competent to the Commissioner of Excise to order transfer of shops from one site or locality to another during the currency of the contract or with the previous sanction of Government. To order any shop to be closed in the interest of public peace or morality or on grounds of expediency, and in such an event of transfer, alteration or closure, the contractor shall have no claim for compensation.’ Thus, the Commissioner of Excise has the competence to order transfer of shops even during the licence period and to close any shop in the interest of public peace, morality or expediency. Consequently, the respondents are duty‑bound, under the provisions of the statute and the licence terms, to ensure that public interest, peace or morality is not contravened by the operation of these outlets. This is a cardinal and paramount obligation vested with the officers of the Excise Department and they cannot resile from it in any manner whatsoever., In such circumstances, taking note of the horrendous nuisance projected by the petitioners through various documents, it becomes incumbent upon the Excise and Police Departments to ensure that the long winding queues formed in front of the counters do not cause any nuisance to the petitioners or any other persons of the locality., The Court therefore directs respondents 2, 3 and 5 to take every measure required to ensure that no nuisance is caused to the petitioners or anyone else in the area on account of the operation of the outlet, including formation of queues, and to make necessary arrangements so that persons coming to the counter are able to purchase their liquor without causing any nuisance. The second respondent, Commissioner of Excise, shall ensure that these directions are complied with in letter and spirit and that this judgment is implemented without fail, even resorting to the provisions of the Abkari Act and its Rules and Regulations for shifting of such counters if control and abatement of nuisance is not possible. The sixth respondent is directed to ensure that law and order is maintained and that any queue formed in front of these counters does not cause hazard or nuisance to the petitioners, their business establishments, customers or other neighbours residing or doing business in the area., The Kerala State Beverages Corporation would be the best authority to take remedial measures to avoid long queues because it is aware of the logistics involved, the demand exhibited and the number of customers who would flock to the counters. Accordingly, the Corporation should make infrastructural and logistical arrangements in front of its counters to avoid nuisance to neighbours, including providing shops and waiting areas for customers so that they do not have to spill over into public streets and lanes., Mr. N. Manoj Kumar, learned State Attorney, submitted that appropriate directions and instructions have already been issued by the Government regarding the opening of these shops and maintenance of Covid‑19 protocol, including social distancing. He further submitted that, with respect to sale in bar hotels, the Government has constituted committees and issued Government Order (Revenue) Number 429 of 2021, dated 2 July 2021., The Government Order (Revenue) Number 429 of 2021 reads as follows: Abstract – Taxes Department – Kerala State Beverages Corporation – Revision of wholesale profit margin of liquor. Committee constituted – Orders issued. The order references Government Order (Revenue) Number 395 of 2021 dated 16 June 2021, a representation dated 23 June 2021 from the Federation of Kerala Hotels Association, and a representation dated 18 June 2021 from the Chairman, Kerala State Co‑Operative Consumers Federation Ltd. As per the first paper, the Government has revised the wholesale profit margin on sale of liquor to bar hotels, licensees and consumers in order to improve the financial position of the Beverages Corporation. The second and third papers contain representations requesting revision of the order. To examine the requests, the Government has constituted a committee comprising the Secretary, Taxes (Excise); the Commissioner of Excise; and an Officer on Special Duty, Finance Resources, by order of the Governor., The Kerala State Beverages (Manufacturing and Marketing) Corporation Limited has also issued a circular dated 16 June 2021 to all Regional Managers, District Administration Officers, Warehouse Managers and shop in‑charges to ensure strict compliance with the directions contained in that circular and to strictly observe Covid‑19 protocol without any lapse. The circular instructs that use of masks, hand sanitizers and frequent hand washing shall be ensured by all staff at the FL09 warehouses and FL1 retail shops, with expenses incurred from the respective warehouse. Social distancing norms prescribed by the Government shall be strictly adhered by staff and customers. Both inside and outside areas of the warehouse and shop premises shall be properly cleaned before opening, and liquor stocks, computers, billing machines, printers and electrical fittings shall be arranged and checked prior to commencing sales. Only outlets functioning within A and B category areas of the Local Self‑Government institutions where the test positivity rate is less than 20 % shall operate from 9 a.m. to 7 p.m.; shops in C and D categories shall remain closed. Staff shall be present for duty as directed by the Government and shall actively ensure orderliness in queues and guide customers in following Covid‑19 safety behaviour. Customers must wear masks and circles may be marked up to 25 metres with one metre spacing to ensure proper physical distancing. Two security staff shall be deputed for queue management, and police assistance has been requested. Proper replenishment of liquor stocks at the FL1 shops shall be arranged. District Audit Team members shall conduct inspections to ensure full compliance. Any clarification or difficulty may be addressed to the Manager (Operations) / Administration or the undersigned., Even though periodic orders are issued by the Central and State Governments regarding Covid‑19 protocol guidelines, they do not seem to be observed in letter and spirit at some places, particularly liquor shops. The above orders clearly state that any lapse in following the restrictions would be viewed seriously, yet no action has been taken against defaulters so far., Today we are informed that for violation of the judgment in Writ Petition (Civil) Number 12881 of 2017, a contempt petition has been filed and the High Court of Kerala has directed the Excise Commissioner, Thiruvananthapuram, to appear in person. The contempt petition is scheduled to be posted tomorrow; therefore, the Court is not inclined to entertain any submission regarding the contempt case., It is evidently apparent from the photographs produced with these writ petitions that there is violation of Covid‑19 protocol. Learned State Attorney submitted that suitable action would be taken to avoid crowding and queues at the liquor shops and that strict compliance of Covid‑19 protocol would be ensured in all liquor shops run by the Beverages Corporation., The learned State Attorney shall file a detailed report regarding the failure to observe Covid‑19 protocol in the shops shown in the photographs in Writ Petition (Civil) Numbers 13307 of 2021 and 13498 of 2021. The Excise Commissioner is also directed to file a detailed statement regarding the failure to follow Covid‑19 protocol guidelines in these shops., Before parting with the interim order, it is added that as of today, the State of Kerala ranks number one in Covid‑19 cases. The Government, on the one hand, is trying to reduce the number of Covid cases by taking appropriate measures, including vaccination. Simultaneously, crowding at public places, especially liquor shops, should not be allowed. Health is more important than revenue.
id_1701	0	Reportable Miscellaneous Application No. 665 of 2021 in Special Mention Writ (Civil) No. 3 of 2020. Due to the outbreak of the COVID-19 pandemic in March 2020, the Supreme Court of India took Suo Motu cognizance of the difficulties that might be faced by litigants in filing petitions, applications, suits, appeals and all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and State). On 23 March 2020, the Supreme Court of India directed extension of the period of limitation in all proceedings before the Courts and Tribunals, including the Supreme Court of India, with effect from 15 March 2020 till further orders., Considering the reduction in prevalence of the COVID-19 virus and normalcy being restored, the following order was passed in the Suo Motu proceedings on 8 March 2021. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15 March 2020 till 14 March 2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15 March 2020, if any, shall become available with effect from 15 March 2021. In cases where the limitation would have expired during the period between 15 March 2020 and 14 March 2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15 March 2021. If the actual balance period of limitation remaining, with effect from 15 March 2021, is greater than 90 days, that longer period shall apply. The period from 15 March 2020 till 14 March 2021 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws which prescribe periods of limitation for instituting proceedings, outer limits within which the court or tribunal can condone delay and termination of proceedings. The Government of India shall amend the guidelines for containment zones to state that regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions such as time‑bound applications, including for legal purposes, and educational and job‑related requirements., Thereafter, there was a second surge in COVID‑19 cases which had a devastating and debilitating effect. The Supreme Court Advocates on Record Association (SCAORA) intervened in the Suo Motu proceedings by filing Miscellaneous Application No. 665 of 2021 seeking restoration of the order dated 23 March 2020. Acceding to the request made by SCAORA, the Supreme Court of India restored the order dated 23 March 2020 and, in continuation of the order dated 8 March 2021, directed that the periods of limitation, as prescribed under any general or special laws in respect of all judicial or quasi‑judicial proceedings, whether condonable or not, shall stand extended till further orders. It is further clarified that the period from 14 March 2021 till further orders shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws which prescribe periods of limitation for instituting proceedings, outer limits within which the court or tribunal can condone delay and termination of proceedings. The Supreme Court of India has passed this order in exercise of its powers under Article 142 read with Article 141 of the Constitution of India, and hence it shall be a binding order within the meaning of Article 141 on all courts, tribunals and authorities. We also take judicial notice of the fact that the steep rise in COVID‑19 cases is not limited to Delhi alone but has engulfed the entire nation, and the extraordinary situation caused by the second outburst of COVID‑19 therefore requires extraordinary measures to minimise the hardship of the public in all the states., In spite of all the uncertainties about another wave of the deadly COVID‑19 virus, it is imminent that the order dated 8 March 2021 is restored as the situation is near normal. We have heard learned Attorney General for India, Mr. Vikas Singh, learned Senior Counsel for the Election Commission of India, Mr. Shivaji M. Jadhav, learned counsel for the SCAORA and other learned advocates. There is consensus that there is no requirement for continuance of the initial order passed by the Supreme Court of India on 23 March 2020 and relaxation of the period of limitation need not be continued any further. The contention of Mr. Vikas Singh is that the order dated 8 March 2021 can be restored, subject to a modification. He submitted that paragraph No.2 of the order dated 8 March 2021 provides that the limitation period of 90 days will start from 15 March 2021 notwithstanding the actual balance of period of limitation in cases where limitation has expired between 15 March 2020 and 14 March 2021. According to him, the period of limitation prior to 15 March 2020 has to be taken into account and only the balance period of limitation should be made available for the purpose of filing cases., The order dated 23 March 2020 was passed in view of the extraordinary health crisis. On 8 March 2021, the order dated 23 March 2020 was brought to an end, permitting the relaxation of the period of limitation between 15 March 2020 and 14 March 2021. While doing so, it was made clear that the period of limitation would start from 15 March 2021. As the order dated 8 March 2021 was only a one‑time measure in view of the pandemic, the Supreme Court of India is not inclined to modify the conditions contained in that order., The learned Attorney General for India stated that paragraph No.4 of the order dated 8 March 2021 should be continued as there are certain containment zones in some states even today., Therefore, the Supreme Court of India disposes of Miscellaneous Application No. 665 of 2021 with the following directions: In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15 March 2020 till 2 October 2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15 March 2021, if any, shall become available with effect from 3 October 2021. In cases where the limitation would have expired during the period between 15 March 2020 and 2 October 2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 3 October 2021. If the actual balance period of limitation remaining, with effect from 3 October 2021, is greater than 90 days, that longer period shall apply. The period from 15 March 2020 till 2 October 2021 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws which prescribe periods of limitation for instituting proceedings, outer limits within which the court or tribunal can condone delay and termination of proceedings. The Government of India shall amend the guidelines for containment zones to state that regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions such as time‑bound applications, including for legal purposes, and educational and job‑related requirements., New Delhi, 23 September 2021. Miscellaneous Application No. 665 of 2021 in Special Mention Writ (Civil) No. 3 of 2020. Respondent(s) Date: 23‑09‑2021. This application was called on for hearing today., For the applicants: Mr. Shivaji M. Jadhav, Advocate; Mr. Manoj K. Mishra, Advocate; Dr. Joseph S. Aristotle, Advocate; Ms. Diksha Rai, Advocate; Mr. Nikhil Jain, Advocate; Mr. Atulesh Kumar, Advocate; Dr. Aman Hingorani, Advocate; Ms. Anzu Varkey, Advocate; Mr. Sachin Sharma, Advocate; Mr. Aljo Joseph, Advocate; Mr. Varinder Kumar Sharma, Advocate; Mr. Abhinav Ramkrishna, Advocate on Record. For the State of Andhra Pradesh: Mr. S. Niranjan Reddy, Senior Advocate; Mr. Mahfooz Ahsan Nazki, Advocate on Record; Mr. Polanki Gowtham, Advocate; Mr. Shaik Mohamad Haneef, Advocate; Mr. T. Vijaya Bhaskar Reddy, Advocate; Mr. Amitabh Sinha, Advocate; Mr. K.V. Girish Chowdary, Advocate. For the Patna High Court: Mr. P.H. Parekh, Senior Advocate. For the Court: Mr. Sameer Parekh, Advocate; Mr. Kshatrashal Raj, Advocate; Ms. Tanya Chaudhry, Advocate; Ms. Pratyusha Priyadarshini, Advocate; Ms. Nitika Pandey, Advocate. For the Registrar: Mr. Soumya Chakraborty, Senior Advocate, General, High Court. For the High Court of Meghalaya: Mr. Sanjai Kumar Pathak, Advocate; Ms. Shashi Pathak, Advocate. For the Election Commission of India: Mr. Vikas Singh, Senior Advocate. For the Commission of India: Mr. Amit Sharma, Advocate; Mr. Dipesh Sinha, Advocate; Ms. Pallavi Barua, Advocate; Mr. Prateek Kumar, Advocate; Mr. Ashok Nijhawan, Advocate; Mr. Aman Bhalla, Advocate; Ms. Anindita Mitra, Advocate on Record. For the State of Madhya Pradesh: Mr. Pawan Reley, Advocate; Mr. Akshay Lodhi, Advocate; Mr. Vinod Sharma, Advocate on Record; Mr. Joydip Roy, Advocate; Mr. Sajal Awasthi, Advocate; Mr. Binod Kumar Singh, Advocate; Mr. Parijat Som, Advocate. For the High Court of Allahabad: Mr. Yashvardhan, Advocate. For the High Court of Uttar Pradesh: Mr. Apoorv Shukla, Advocate; Ms. Smita Kant, Advocate; Ms. Ishita Farsaiya, Advocate; Ms. Prabhleen Kaur, Advocate; Ms. Kritika Nagpal, Advocate; Ms. Bhavya Bhatia, Advocate. For the High Court of Gujarat: Mr. Arjun Garg, Advocate on Record. For the State of Madhya Pradesh: Mr. Aakash Nandolia, Advocate; Ms. Sagun Srivastava, Advocate; Ms. Sunieta Ojha, Advocate on Record. For the Gauhati High Court: Mr. P. I. Jose, Advocate on Record. For the Court: Mr. Prashant K. Sharma, Advocate; Mr. Jenis V. Francis, Advocate. For the State of Meghalaya: Mr. Avijit Mani Tripathi, Advocate. For the State of Karnataka: Mr. T.K. Nayak, Advocate; Mr. Sahil Tagotra, Advocate on Record. For the Bombay High Court and Gujarat High Court: Mr. A.P. Mayee, Advocate. For the Calcutta High Court: Mr. Kunal Chatterji, Advocate on Record. For the High Court of Arunachal Pradesh: Mr. Abhimanyu Tewari, Advocate. For the High Court of Chhattisgarh: Ms. Eliza Bar, Advocate. For the High Court of Kerala: Ms. Nidhi Mittal, Advocate. For the High Court of Delhi: Mr. Dhruv Tamta, Advocate; Ms. Pratibha Jain, Advocate on Record. For the High Court of Jharkhand: Mr. Tapesh Kumar Singh, Advocate on Record. For the State of Uttar Pradesh: Mr. Aditya Pratap Singh, Advocate; Mrs. L. Bhaswati Singh, Advocate; Mr. Aditya Narayan Das, Advocate; Ms. Uttara Babbar, Advocate on Record; Mr. Manan Bansal, Advocate., Upon hearing the counsel, the Supreme Court of India made the following directions: In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15 March 2020 till 2 October 2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15 March 2021, if any, shall become available with effect from 3 October 2021. In cases where the limitation would have expired during the period between 15 March 2020 and 2 October 2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 3 October 2021. If the actual balance period of limitation remaining, with effect from 3 October 2021, is greater than 90 days, that longer period shall apply. The period from 15 March 2020 till 2 October 2021 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws which prescribe periods of limitation for instituting proceedings, outer limits within which the court or tribunal can condone delay and termination of proceedings. The Government of India shall amend the guidelines for containment zones to state that regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions such as time‑bound applications, including for legal purposes, and educational and job‑related requirements. As a sequel to the disposal of Miscellaneous Application No. 665 of 2021, pending interlocutory applications, including applications for intervention or impleadment, also stand disposed of. (Signed reportable order is placed on the file).
id_1702	0	Daxay Sachin Sanghavi Petitioner versus the State of Maharashtra and others Respondents. Mr. Yogesh Joshi in behalf of Messrs Y.R.J. Legal for the Petitioner. Mr. Ajay Patil, Advocate on Record for Respondent Number 1 – State. Mr. Pravin Desai, Respondent Number 3, present. Mr. Harshad Joshi for Respondent Number 3., This is a petition under Article 226 of the Constitution of India to quash Crime Number 0531 of 2023 registered with M.H.B. Colony Police Station, Mumbai, for the offences punishable under Sections 279, 336 and 427 of the Indian Penal Code and Section 11(1)(a) of the Prevention of Cruelty to Animals Act, 1960., The aforesaid crime was registered pursuant to the FIR lodged by Respondent Number 3. The facts narrated in the FIR indicate that on 10 October 2023 the Petitioner drove vehicle Number MH 47 AG 2448 in a rash and negligent manner and caused damage to some PoP idols in the temporary shed of Respondent Number 2. It is further stated that a stray dog also died in the incident., Learned counsel for the Petitioner and Respondent Number 3 state that the parties have settled the dispute amicably. Respondent Number 3 has filed his affidavit giving his no objection to quash the FIR. He has received Demand Draft Number 065659 of ICICI Bank dated 16 January 2024 for Rupees 2,00,000 towards damage caused to his shed and PoP idols. Respondent Number 3 is present before the High Court of Bombay. He has been identified by his Advocate. He has confirmed the contents of the affidavit and has reiterated that he has no objection to quash the FIR., In our considered view the settlement is genuine and voluntary. The Petitioner is a young man of 20 years of age, a third‑year engineering student with a good academic record. Continuance of criminal proceedings can mar his career and future prospects. The Petitioner has also donated Rupees 5,000 towards welfare of stray dogs., Under the circumstances, in our considered view this is a fit case to exercise powers under Article 226 of the Constitution of India and to quash the FIR to secure the ends of justice. Hence, the petition is allowed. Crime Number 0531 of 2023 registered with M.H.B. Colony Police Station, Mumbai, for the offences punishable under Sections 279, 336 and 427 of the Indian Penal Code and Section 11(1)(a) of the Prevention of Cruelty to Animals Act, 1960 stands quashed.
id_1703	0	Messrs Imperia Structures Ltd. versus Anil Patni, Justice Uday Umesh Lalit. These appeals under Section 23 of the Consumer Protection Act, 1986 are directed against the common judgment and order dated 12 September 2018 passed by the National Consumer Disputes Redressal Commission, New Delhi, in Consumer Case Numbers 3011 to 3020 of 2017. The relevant facts leading to the filing of those consumer cases are almost identical; for present purposes the facts leading to the filing of Consumer Case Number 3011 of 2017 are set out in detail and the appeal arising therefrom is taken as the lead appeal. The connected appeal seeks to challenge the judgment and order dated 9 August 2018 passed by the National Consumer Disputes Redressal Commission in Consumer Case Number 1605 of 2017 and raises the same issues of fact and law. Delay in filing these appeals is condoned., The housing scheme called The ESFERA in Sector 13C, Gurgaon, Haryana, hereinafter referred to as the Project, was launched by the appellant in 2011 and all the original complainants booked their respective apartments by paying the booking amounts and subsequently executed a Builder‑Buyer Agreement, hereinafter referred to as the Agreement, with the appellant., The respondents in the leading appeal booked Apartment Number 1803 on the 18th floor of Tower C, having a super built‑up area of 153.34 square metres (approximately 1,650 square feet) at a rate of Rs 36,530.20 per square metre (Rs 3,395 per square foot). The basic price was Rs 56,01,750, to which additional charges for preferential location, corner park facing, higher floor, reserve parking, club membership and development were added, making the aggregate price Rs 76,43,000., Clauses 11.1 and 11.2 of the Agreement dated 30 November 2013, entered into by the respondents, dealt respectively with delay due to reasons beyond the control of the developer/company and failure to deliver possession due to government rules, orders, notifications, etc. Clause 11.4 provided that the intending allottee(s) agree that if the developer/company abandons the scheme or is unable to give possession within three years from the date of execution of the Agreement, the developer/company may terminate the Agreement, in which case its liability is limited to refunding the amounts paid by the intending allottee(s) with simple interest at 9 percent per annum for the period such amounts remain with the developer/company, and no other compensation shall be payable. However, the developer/company may, at its sole discretion, decide not to terminate the Agreement; in that event it agrees to pay compensation of Rs 5 per square foot (equivalent to Rs 53.8 per square metre) of the super area of the apartment per month for the period of delay beyond three and a half years or any extended period permitted under the Agreement, subject to the intending allottee(s) not being in default under any term of the Agreement. The adjustment of such compensation shall be made only at the time of settling the final accounts for handing over the apartment to the intending allottee(s). Clause 41 of the Agreement states that the developer/company shall not be held responsible or liable for failure to perform any of its obligations if such performance is prevented, delayed or hindered by an act of God, fire, flood, explosion, war, riot, terrorist acts, sabotage, inability to procure or general shortage of energy, labour, equipment, facilities, materials or supplies, failure of transportation, strikes, lockouts, action of labour unions or any other cause beyond the reasonable control of the developer/company., On 1 May 2016, the Real Estate (Regulation and Development) Act, 2016 (RERA Act) came into force., The respondents had paid Rs 63,53,625 out of the agreed sum of Rs 76,43,000. However, even after four years there were no signs of the project being completed. Consequently, Consumer Case Number 3011 of 2017 was filed by the respondents on 11 October 2017 before the National Consumer Disputes Redressal Commission, submitting, inter alia, that the complainants regularly visited the site and were surprised to see that construction was never in progress; no one was present on the site to address the queries of the buyers; the appellant, despite receiving a substantial amount, deliberately did not construct the towers in which the complainants' houses were situated, leaving the site an abandoned piece of land with a partially constructed structure. The appellant's failure to complete the residential unit The ESFERA within the promised 42 months, despite having taken money from innocent buyers, was alleged to constitute unfair and restrictive trade practices under the Consumer Protection Act, 1986. Clause 11.4 of the Buyer’s Agreement required the appellant, in case of any delay, to pay compensation at the rate of Rs 5 per square foot per month for the period of delay. The appellant’s offer of Rs 5 per square foot amounted to an approximate interest rate of 1.4 percent per annum, payable after the initial 42‑month interest‑free period, indicating that the appellant was using the buyers’ funds as a cheap source of financing. The value of goods and services along with compensation claimed in the complaint exceeded one crore rupees, invoking the pecuniary jurisdiction of the National Consumer Disputes Redressal Commission. The complaint was assessed for a sum of Rs 1,16,94,579, with a requisite fee of Rs 5,000 payable to the Registrar, National Consumer Disputes Redressal Commission, New Delhi. The respondents prayed that the Commission direct the appellant to refund the entire amount collected towards the flat along with interest at 18 percent per annum from the date of each deposit until actual return, to pay Rs 50,000 towards litigation costs, and to pass any other appropriate orders. The other nine consumer cases were filed on the same day., On 17 November 2017, the project was registered with the Haryana Real Estate Regulatory Authority, Panchkula. The authority issued a registration certificate with the following terms and conditions: the promoter shall comply with the provisions of the Real Estate (Regulation and Development) Act, 2016 and its rules; the promoter shall deposit seventy percent of the amount to be realized from the allottees in a separate account in a scheduled bank to meet exclusively the cost of land and construction; the registration shall be valid from 17 November 2017 to 31 December 2020; the promoter shall execute and register a conveyance deed in favour of the allottees or their association as required under section 17 of the Act; the promoter shall obtain all pending approvals from competent authorities in time; the promoter shall pay all outstanding payments including land cost, construction cost, ground rent, municipal taxes, water and electricity charges, maintenance charges, mortgage loan and interest, and any other liabilities to competent authorities, banks and financial institutions until possession is transferred to the allottees or their association; the promoter shall provide and maintain essential services on reasonable charges until maintenance is taken over by the Municipal Corporation, Gurugram or any other local authority or association of the allottees; the promoter shall not accept an advance payment or application fee exceeding ten percent of the cost of the apartment, plot or building without first entering into a written agreement for sale and registering it; the promoter shall adhere to all terms and conditions of this registration, sanctioned plans and other permissions issued by competent authorities; if any deficiency in fee is found later, it shall be recoverable from the promoter; the promoter shall return the amount with interest if an allottee wishes to withdraw from the project due to discontinuance of the promoter’s business or failure to give possession as per the agreement, with interest at the State Bank of India’s highest marginal cost of lending rate plus two percent; the promoter shall adopt the model agreement for sale prescribed under the Haryana Real Estate (Regulation and Development) Rules, 2017 at the time of booking; the promoter shall, upon receiving login credentials, create a web page on the authority’s website and enter details of the project, including registration details, quarterly updated lists of apartments, garages, approvals, project status, and other required information; the promoter shall make available to the allottees, at the time of booking and issuance of allotment letter, the sanctioned plans, layout, specifications approved by the competent authority and other information as prescribed in Rule 14 of 2017 under the Real Estate (Regulation and Development) Act, 2016, to be displayed at the site or as specified by the authority., In its response dated 18 January 2018 to Consumer Case Number 3011 of 2017, the appellant challenged the jurisdiction of the National Consumer Disputes Redressal Commission on the ground that the apartment had been booked for commercial purposes and therefore the respondents would not fall within the definition of consumer under Section 2(d) of the Consumer Protection Act. The appellant also referred to the fact that the project had been registered under the Real Estate (Regulation and Development) Act. The appellant denied the contents of paragraph 8, stating that the date of possession of the unit was not 30 May 2017 and that the respondents had clearly indicated that the schedule for possession was based on the present plans and estimates, subject to reasonable exceptions, and contemplated completion of construction within three and a half years from the date of execution of the agreement unless delayed by reasons beyond the control of the company, including force majeure events or delays due to compliance with new rules, regulations, orders or notifications issued by the government or other authorities. The appellant also denied the contents of paragraph 11, asserting that the construction of the tower in which the complainant’s unit was allotted was in full swing and nearing possession, and that the allegations were concocted and baseless. In their replication, the respondents submitted that the buyer’s agreement was a fixed set of documents that had to be signed as presented, and no modification was entertained; when a request was made to change the one‑sided clauses, the appellant stated that the agreement had to be signed as is, otherwise the allotment would be cancelled and the earnest money forfeited., Consumer Case Number 3011 of 2017 was allowed by the National Consumer Disputes Redressal Commission by its judgment and order dated 12 September 2018. The Commission observed that the developer had not filed any evidence to support the contention that the delay was due to force majeure events. In fact, demonetisation, non‑availability of contractual labour, and delay in notifying approvals could not be construed as force majeure events., The developer’s counsel argued that the complainants were offered alternative accommodation by a letter dated 3 April 2017, which the complainants did not accept. The letter stated: 'In view of your allegations of delay, which we deny, we hereby offer that until we complete construction of your flat we shall arrange alternative accommodation for you in the Group Housing Colony named Takshila Heights situated at Sector‑37C, Gurgaon on lease with immediate effect. We will bear the rent of the alternative accommodation, but you shall have to pay the common area maintenance charges and other user‑based charges such as electricity, which you would have paid for your flat in The ESFERA as well.', The letter admitted that construction was still not completed, and no specific date of possession was mentioned in the written version, affidavit, or the letter dated 3 April 2017. Concluding that the appellant was deficient in rendering service, the Commission granted relief to the respondents, directing the developer to refund the amounts deposited with simple interest at 9 percent per annum from the respective dates of deposit until realization, together with costs of Rs 50,000 to be paid to each complainant. The directions were to be complied with within four weeks from receipt of the order, failing which the amount would attract interest at 12 percent per annum., Similarly, all other complaints were allowed by the Commission, granting relief of refund of the amounts deposited by each complainant with simple interest at 9 percent per annum from the respective dates of deposit, along with Rs 50,000 towards costs. The amounts were to be deposited within four weeks, failing which they would accrue interest at 12 percent per annum., The appellant, being aggrieved, preferred the instant appeals on 14 March 2019. Additional documents included a copy of the letter dated 17 November 2017 and an order passed by the Haryana Authority, Gurugram on 17 January 2019 in a complaint filed by Himanshu Giri. The order directed, in the interest of justice and fair play, that the respondent provide delay possession charges at the prescribed rate of 10.75 percent per annum for each month of delay from 15 September 2016, as per Section 18(1) of the Real Estate (Regulation and Development) Act, 2016; and that the arrears of interest accrued up to that date be paid to the complainant within 90 days, with subsequent monthly interest payments to be made before the 10th of each month until possession is handed over., The appeal memorandum did not refer to the fact that the project had been registered under the Real Estate (Regulation and Development) Act. In the leading appeal, the appellant asserted that it was unable to hand over possession to the respondents within the stipulated time in Clause 10.1 due to reasons beyond its control, including a severe shortage of contractual labourers and delays in obtaining statutory permissions for construction. One of the grounds raised was that the National Consumer Disputes Redressal Commission failed to appreciate that the demonetisation policy introduced by the Government of India constituted a force majeure event, as it caused a shortage of cash for many persons, including the appellant, resulting in delays in delivering possession. The appellant submitted that the cash shortage caused by demonetisation halted work because construction requires daily cash payments for wages and material deliveries., After a notice dated 5 April 2019, the respondents submitted that the appellant had partially refunded the amounts in accordance with the Commission’s directions. Partial refunds were made in four of the ten cases: in Consumer Case Number 3011 of 2017, Rs 10,00,000 was refunded; in Consumer Case Number 3012 of 2017, Rs 8,00,000 was refunded; in Consumer Case Number 3017 of 2017, Rs 8,00,000 was refunded; and in Consumer Case Number 3018 of 2017, Rs 8,00,000 was refunded. No refunds were made in the remaining cases. A refund of Rs 10,00,000 to the respondents was made on 27 March 2019, even after filing of the leading appeal., Mr. Vikas Singh, learned Senior Advocate for the appellant, submitted that the appellant had completed Phase I of the project on time and that Phase II, concerning about 437 allottees, was the matter in issue. Of these, only 59 complaints were filed under the Consumer Protection Act, while Mr. Himanshu Giri had approached authorities under the Real Estate (Regulation and Development) Act. A majority of the allottees had thus reposed faith in the appellant. The appellant had offered alternative accommodation to all the allottees, but the offer was rejected, indicating that the apartments were booked for investment purposes. He argued that the complainants were not consumers within the meaning of the Consumer Protection Act because the apartments were booked merely for profit motive. Once the Real Estate (Regulation and Development) Act came into force, all questions concerning the project, including construction and completion, would be under the exclusive jurisdiction of the RERA authorities, and therefore the Commission ought not to have entertained the consumer cases. The registration certificate dated 17 November 2017, valid until 31 December 2020, meant that the appellant could not be said to have delayed construction, and no deficiency could be found. The order in the Himanshu Giri case directed payment of interest at 10.75 percent per annum without ordering a refund, which the appellant claimed would encourage completion of construction while balancing the interests of the allottees. Accordingly, the appellant contended that, considering the provisions of the Real Estate (Regulation and Development) Act and the validity of the registration until 31 December 2020, the orders passed by the Commission should be set aside and the complainants should be granted interest at 10.75 percent per annum on the amounts deposited, allowing the project to be completed without imposing financial strain on the appellant while providing interest on the investment to the allottees., Ms. Priyanjali Singh, learned advocate for the respondents and some of the other complainants, submitted that all the complainants had purchased only one residential apartment each for self‑use and had taken home loans, except the complainant in Consumer Case Number 3020 of 2017, who, after retiring as a Group Captain from the Indian Air Force, used his retirement dues to book the apartment. Therefore, the issue of whether the complainants satisfied the requirements of being consumers under the Consumer Protection Act was rightly decided in their favour. She also argued that the question of whether the delay occurred due to force majeure events was correctly answered in favour of the complainants, as no reasonable explanation was available on record to overturn that finding. In view of these findings, the Commission was justified in accepting the claim of the complainants; the award of interest at 9 percent per annum was at a lower level. No plea was ever taken before the Commission that the project was registered under the Real Estate (Regulation and Development) Act or about the effect of that Act, nor in the appeal memorandum; consequently, the appellant could not raise submissions about the applicability of the RERA Act. Moreover, as consistently construed by this Court, the remedy afforded by the Consumer Protection Act is an additional remedy to a consumer, and this legal position remains unchanged even after the enactment of the Real Estate (Regulation and Development) Act., Three complainants, namely (a) Chandra Shekhar, (b) Rajat Verma, and (c) Krishan Kumar, appeared in person and submitted that the decision of the Commission did not call for any interference and that they should be refunded the entire amount with interest at 12 percent instead of the 9 percent awarded by the Commission., The Commission concluded that (i) all the complainants were consumers within the meaning of the Consumer Protection Act, and (ii) there was delay on the part of the appellant in completing construction within the stipulated time. Although the appellant acknowledged the delay and attempted to rely on certain events, the conclusions drawn by the National Consumer Disputes Redressal Commission on these issues are absolutely correct and do not call for any interference., Before addressing the applicability and effect of the Real Estate (Regulation and Development) Act as well as the effect of registration of the project under the RERA Act, the relevant provisions of the Consumer Protection Act, 1986 and the RERA Act are extracted.\n\nConsumer Protection Act, 1986: The Act was enacted, inter alia, to provide better protection of the interest of the consumer and to promote and protect the rights of consumers, such as the right to seek redressal against unfair trade practices or unscrupulous exploitation. Sections 3, 12(4) and 24 provide that the provisions of this Act are in addition to, and not in derogation of, any other law in force; that a complaint admitted by a District Forum shall not be transferred to any other court, tribunal or authority; and that every order of a District Forum, State Commission or National Commission shall be final if no appeal is preferred under the Act.\n\nReal Estate (Regulation and Development) Act, 2016: Sections 2(d), 2(zg), 2(zj) and 2(zk) define the expressions allottee, person, project and promoter respectively. Section 3 requires prior registration of a real‑estate project with the Real Estate Regulatory Authority. No promoter shall advertise, market, book, sell or invite persons to purchase any plot, apartment or building in any planning area without such registration. Projects ongoing on the commencement date of the Act and without a completion certificate must apply for registration within three months of the Act’s commencement. The Authority may, if necessary, direct a promoter to register a project and the provisions of the Act and its rules shall apply from the stage of registration.
id_1703	1	Notwithstanding anything contained in sub‑section (1), no registration of the real estate project shall be required (a) where the area of land proposed to be developed does not exceed five hundred square metres or the number of apartments proposed to be developed does not exceed eight inclusive of all phases: Provided that, if the appropriate Government considers it necessary, it may reduce the threshold below five hundred square metres or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this Act; (b) where the promoter has received a completion certificate for a real estate project prior to commencement of this Act; (c) for the purpose of renovation or repair or re‑development which does not involve marketing, advertising, selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project. Explanation. For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a stand‑alone real estate project, and the promoter shall obtain registration under this Act for each phase separately., Application for registration of real estate projects (1) Every promoter shall make an application to the Authority for registration of the real estate project in such form, manner, within such time and accompanied by such fee as may be prescribed. (2) The promoter shall enclose the following documents along with the application referred to in sub‑section (1), namely: (a) a brief detail of his enterprise including its name, registered address, type of enterprise (proprietorship, societies, partnership, companies, competent authority), and the particulars of registration, and the names and photographs of the promoter; (b) a brief detail of the projects launched by him in the past five years, whether already completed or being developed, as the case may be, including the current status of the said projects, any delay in its completion, details of cases pending, details of type of land and payments pending; (c) an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws applicable for the real estate project mentioned in the application, and where the project is proposed to be developed in phases, an authenticated copy of the approvals and commencement certificate from the competent authority for each such phase; (d) the sanctioned plan, layout plan and specifications of the proposed project or the phase thereof, and the whole project as sanctioned by the competent authority; (e) the plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including fire‑fighting facilities, drinking water facilities, emergency evacuation services, use of renewable energy; (f) the location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points of the project; (g) proforma of the allotment letter, agreement for sale, and the conveyance deed proposed to be signed with the allottees; (h) the number, type and the carpet area of apartments for sale in the project along with the area of the exclusive balcony or verandah areas and the exclusive open terrace areas, if any; (i) the number and areas of garage for sale in the project; (j) the names and addresses of his real estate agents, if any, for the proposed project; (k) the names and addresses of the contractors, architect, structural engineer, if any and other persons concerned with the development of the proposed project; (l) a declaration, supported by an affidavit, which shall be signed by the promoter or any person authorised by the promoter, stating: (A) that he has a legal title to the land on which the development is proposed along with legally valid documents with authentication of such title, if such land is owned by another person; (B) that the land is free from all encumbrances, or, as the case may be, details of the encumbrances on such land including any rights, title, interest or name of any party in or over such land along with details; (C) the time period within which he undertakes to complete the project or phase thereof, as the case may be; (D) that seventy per cent of the amounts realised for the real estate project from the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and the land cost and shall be used only for that purpose: Provided that the promoter shall withdraw the amounts from the separate account, to cover the cost of the project, in proportion to the percentage of completion of the project; Provided further that the amounts from the separate account shall be withdrawn by the promoter after it is certified by an engineer, an architect and a chartered accountant in practice that the withdrawal is in proportion to the percentage of completion of the project; Provided also that the promoter shall get his accounts audited within six months after the end of every financial year by a chartered accountant in practice, and shall produce a statement of accounts duly certified and signed by such chartered accountant and it shall be verified during the audit that the amounts collected for a particular project have been utilised for the project and the withdrawal has been in compliance with the proportion to the percentage of completion of the project. Explanation. For the purpose of this clause, the term “scheduled bank” means a bank included in the Second Schedule to the Reserve Bank of India Act, 1934; (E) that he shall take all the pending approvals on time, from the competent authorities; (F) that he has furnished such other documents as may be prescribed by the rules or regulations made under this Act; and (m) such other information and documents as may be prescribed. (3) The Authority shall operationalise a web‑based online system for submitting applications for registration of projects within a period of one year from the date of its establishment., Grant of registration (1) On receipt of the application under sub‑section (1) of section 4, the Authority shall within a period of thirty days (a) grant registration subject to the provisions of this Act and the rules and regulations made thereunder, and provide a registration number, including a login ID and password to the applicant for accessing the website of the Authority and to create his web page and to fill therein the details of the proposed project; or (b) reject the application for reasons to be recorded in writing, if such application does not conform to the provisions of this Act or the rules or regulations made thereunder: PROVIDED that no application shall be rejected unless the applicant has been given an opportunity of being heard in the matter. (2) If the Authority fails to grant the registration or reject the application, as the case may be, as provided under subsection (1), the project shall be deemed to have been registered, and the Authority shall within a period of seven days of the expiry of the said period of thirty days specified under sub‑section (1), provide a registration number and a login ID and password to the promoter for accessing the website of the Authority and to create his web page and to fill therein the details of the proposed project. (3) The registration granted under this section shall be valid for a period declared by the promoter under sub‑clause (C) of clause (1) of sub‑section (2) of section 4 for completion of the project or phase thereof, as the case may be., Return of amount and compensation (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building, (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: PROVIDED that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed. (2) The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this subsection shall not be barred by limitation provided under any law for the time being in force. (3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act., Rights and duties of allottees (1) The allottee shall be entitled to obtain the information relating to sanctioned plans, layout plans along with the specifications, approved by the competent authority and such other information as provided in this Act or the rules and regulations made thereunder or the agreement for sale signed with the promoter. (2) The allottee shall be entitled to know stage‑wise time schedule of completion of the project, including the provisions for water, sanitation, electricity and other amenities and services as agreed to between the promoter and the allottee in accordance with the terms and conditions of the agreement for sale. (3) The allottee shall be entitled to claim the possession of apartment, plot or building, as the case may be, and the association of allottees shall be entitled to claim the possession of the common areas, as per the declaration given by the promoter under sub‑clause (C) of clause (I) of sub‑section (2) of section 4. (4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of the agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made thereunder. (5) The allottee shall be entitled to have the necessary documents and plans, including those of common areas, after handing over the physical possession of the apartment or plot or building as the case may be, by the promoter. (6) Every allottee who has entered into an agreement for sale to take an apartment, plot or building as the case may be under section 13 shall be responsible to make necessary payments in the manner and within the time as specified in the said agreement for sale and shall pay at the proper time and place the share of the registration charges, municipal taxes, water and electricity charges, maintenance charges, ground rent and other charges, if any. (7) The allottee shall be liable to pay interest, at such rate as may be prescribed, for any delay in payment towards any amount or charges to be paid under sub‑section (6). (8) The obligations of the allottee under sub‑section (6) and the liability towards interest under sub‑section (7) may be reduced when mutually agreed to between the promoter and such allottee. (9) Every allottee of the apartment, plot or building as the case may be shall participate towards the formation of an association or society or cooperative society of the allottees, or a federation of the same. (10) Every allottee shall take physical possession of the apartment, plot or building as the case may be within a period of two months of the occupancy certificate issued for the said apartment, plot or building, as the case may be. (11) Every allottee shall participate towards registration of the conveyance deed of the apartment, plot or building as the case may be, as provided under sub‑section (1) of section 17 of this Act., Qualifications of Chairperson and Members of Authority. The Chairperson and other Members of the Authority shall be appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department dealing with Housing and the Law Secretary, in such manner as may be prescribed, from amongst persons having adequate knowledge of and professional experience of at least twenty years in case of the Chairperson and fifteen years in the case of the Members in urban development, housing, real estate development, infrastructure, economics, technical experts from relevant fields, planning, law, commerce, accountancy, industry, management, social service, public affairs or administration: Provided that a person who is, or has been, in the service of the State Government shall not be appointed as a Chairperson unless such person has held the post of Additional Secretary to the Central Government or any equivalent post in the Central Government or State Government: Provided further that a person who is, or has been, in the service of the State Government shall not be appointed as a member unless such person has held the post of Secretary to the State Government or any equivalent post in the State Government or Central Government., Qualifications for appointment of Chairperson and Members. (1) A person shall not be qualified for appointment as the Chairperson or a Member of the Appellate Tribunal unless he, (a) in the case of Chairperson, is or has been a Judge of a High Court; (b) in the case of a Judicial Member he has held a judicial office in the territory of India for at least fifteen years or has been a member of the Indian Legal Service and has held the post of Additional Secretary of that service or any equivalent post, or has been an advocate for at least twenty years with experience in dealing with real estate matters; and (c) in the case of a Technical or Administrative Member, he is a person who is well‑versed in the field of urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possesses experience of at least twenty years in the field or who has held the post in the Central Government or a State Government equivalent to the post of Additional Secretary to the Government of India or an equivalent post in the Central Government or an equivalent post in the State Government. (2) The Chairperson of the Appellate Tribunal shall be appointed by the appropriate Government in consultation with the Chief Justice of the High Court or his nominee. (3) The Judicial Members and Technical or Administrative Members of the Appellate Tribunal shall be appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department handling Housing and the Law Secretary and in such manner as may be prescribed., Power to adjudicate (1) For the purpose of adjudging compensation under sections 12, 14, 18 and section 19, the Authority shall appoint in consultation with the appropriate Government one or more judicial officers as deemed necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of being heard: PROVIDED that any person whose complaint in respect of matters covered under sections 12, 14, 18 and section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986, on or before the commencement of this Act, may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act. (2) The application for adjudging compensation under subsection (1) shall be dealt with by the adjudicating officer as expeditiously as possible and disposed of within a period of sixty days from the date of receipt of the application: PROVIDED that where any such application could not be disposed of within the said period of sixty days, the adjudicating officer shall record his reasons in writing for not disposing of the application within that period. (3) While holding an inquiry the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which, in the opinion of the adjudicating officer, may be useful for or relevant to the subject matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the sections specified in sub‑section (1), he may direct payment of such compensation or interest, as the case may be, as he thinks fit in accordance with the provisions of any of those sections., Bar of jurisdiction No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act., Application of other laws not barred The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force., Act to have overriding effect The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force., The question whether the remedies available to the consumers under the provisions of the Consumer Protection Act would be additional remedies was considered by this Court in several notable cases. i) In Secretary, Thirumurugan Cooperative Agricultural Credit Society versus M. Lalitha (deceased) through LRs. and others, this Court observed: From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, a mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi‑judicial forums are set up at the district, State and national level with a wide range of powers vested in them. These quasi‑judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non‑compliance with their orders. As per Section 3 of the Act, the provisions of the Act shall be in addition to and not in derogation of any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and the purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional or extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar. The issue in this case was whether, in the face of Section 156 of the Tamil Nadu Cooperative Societies Act, 1983, the concerned persons could avail remedies under the Consumer Protection Act. Interpreting Section 3 of the Consumer Protection Act, it was held that the remedy provided under the Consumer Protection Act would be in addition to the remedies provided under the other Acts. ii) In National Seeds Corporation Limited versus M. Madhusudhan Reddy and another, it was observed: It can thus be said that in the context of farmers/growers and other consumers of seeds, the Seeds Act is a special legislation insofar as the provisions contained therein ensure that those engaged in agriculture and horticulture get quality seeds and any person who violates the provisions of the Act and/or the Rules is brought before the law and punished. However, there is no provision in that Act and the Rules for compensating the farmers who may suffer loss of crop or deficient yield on account of defective seeds supplied by a person authorised to sell the seeds. Moreover, there is nothing in the Seeds Act and the Rules which indicates that the provisions of the Consumer Protection Act are not available to the farmers who are otherwise covered by the wide definition of consumer under Section 2(1)(d) of the Consumer Protection Act. Any attempt to exclude the farmers from the ambit of the Consumer Protection Act by implication would make that Act vulnerable to an attack of unconstitutionality on the ground of discrimination and there is no reason why the provisions of the Consumer Protection Act should be so interpreted. Since the farmers/growers purchased seeds by paying a price to the appellant, they would certainly fall within the ambit of Section 2(1)(d)(i) of the Consumer Protection Act and there is no reason to deny them the remedies which are available to other consumers of goods and services. In this case the provisions of the Consumer Protection Act and those under the Seeds Act, 1966 were considered. iii) In Virender Jain versus Alaknanda Cooperative Group Housing Society Limited and others, it was observed: The other question which needs to be considered is whether the District Forum should not have entertained the complaints filed by the appellants and directed them to avail the statutory remedies available under the Cooperative Societies Act. Shri Neeraj Jain argued that the forums constituted under the Act cannot grant relief to the appellants because the action taken by Respondent 1 was approved by the authorities constituted under the Cooperative Societies Act, who were not impleaded as parties in the complaints. In our view, there is no merit in the submission of the learned Senior Counsel. The complaints primarily challenged the action of Respondent 1 to refund the amounts deposited by the appellants and thereby extinguished their entitlement to get the flats. The fact that the action taken by Respondent 1 was approved by the Assistant Registrar, Cooperative Societies and higher authorities cannot deprive the appellants of their legitimate right to seek remedy under the Act, which is in addition to the other remedies available to them under the Cooperative Societies Act. Law on this issue must be treated as settled by the judgments of this Court in Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha, Kishore Lal v. ESI Corporation and National Seeds Corporation Limited v. M. Madhusudhan Reddy. In the last mentioned judgment, the Court referred to earlier judgments in Fair Air Engineers (P) Ltd. v. N.K. Modi, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha, Skypak Couriers Ltd. v. Tata Chemicals Ltd. and Trans Mediterranean Airways v. Universal Exports and held that the remedy available under the Act is in addition to the remedies available under other statutes and the availability of alternative remedies is not a bar to entertaining a complaint filed under the Act. In this case the statutory remedies available under the Haryana Cooperative Societies Act, 1984 as against those under the Consumer Protection Act were the matter in issue., It has consistently been held by this Court that the remedies available under the provisions of the Consumer Protection Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar to entertaining a complaint under the Consumer Protection Act., Before we consider whether the provisions of the RERA Act have made any change in the legal position stated in the preceding paragraph, we may note that an allottee placed in circumstances similar to that of the complainants could have initiated the following proceedings before the RERA Act came into force. A) If he satisfied the requirements of being a consumer under the Consumer Protection Act, he could have initiated proceedings under the Consumer Protection Act in addition to normal civil remedies. B) However, if he did not fulfil the requirements of being a consumer, he could initiate and avail only normal civil remedies. C) If the agreement with the developer or the builder provided for arbitration: i) in cases covered under Clause B hereinabove, he could initiate or could be called upon to invoke the remedies in arbitration. ii) in cases covered under Clause A hereinabove, in accordance with law laid down in Emaar MGF Ltd and another versus Aftab Singh, he could still choose to proceed under the Consumer Protection Act., In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the project. Such right of an allottee is specifically made without prejudice to any other remedy available to him. The right so given to the allottee is unqualified and, if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is up to the allottee to proceed either under Section 18(1) or under the proviso to Section 18(1). The case of Himanshu Giri came under the latter category. The RERA Act thus definitely provides a remedy to an allottee who wishes to withdraw from the project or claim return on his investment., It is therefore required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora., Section 79 of the RERA Act bars jurisdiction of a civil court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while Section 89 provides that the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force., On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove would stand barred from invoking the jurisdiction of a civil court. However, as regards the allottees who can be called consumers within the meaning of the Consumer Protection Act, two questions arise: a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the Consumer Protection Act; and b) whether there is anything inconsistent in the provisions of the Consumer Protection Act with that of the RERA Act., In Malay Kumar Ganguli versus Dr. Sukumar Mukherjee, this Court held: The proceedings before the National Commission are although judicial proceedings, they are not a civil court within the meaning of the provisions of the Code of Civil Procedure. They may have all the trappings of a civil court but nevertheless cannot be called a civil court. (See Bharat Bank Ltd. v. Employees and Nahar Industrial Enterprises Ltd. versus Hong Kong & Shanghai Banking Corporation.)
id_1703	2	On the strength of the law so declared, Section 79 of the Real Estate (Regulation and Development) Act does not in any way bar the Consumer Disputes Redressal Commission or Consumer Disputes Redressal Forum under the provisions of the Consumer Protection Act to entertain any complaint. The proviso to Section 71(1) of the Real Estate (Regulation and Development) Act entitles a complainant who had initiated proceedings under the Consumer Protection Act before the Real Estate (Regulation and Development) Act came into force to withdraw the proceedings under the Consumer Protection Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the Real Estate (Regulation and Development) Act. The proviso thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the Real Estate (Regulation and Development) Act create any mechanism for transfer of such pending proceedings to authorities under the Real Estate (Regulation and Development) Act. As against that, the mandate in Section 12(4) of the Consumer Protection Act to the contrary is quite significant. Again, insofar as cases where such proceedings under the Consumer Protection Act are initiated after the provisions of the Real Estate (Regulation and Development) Act came into force, there is nothing in the Real Estate (Regulation and Development) Act which bars such initiation. The absence of a bar under Section 79 to the initiation of proceedings before a forum which cannot be called a Civil Court and the express saving under Section 88 of the Real Estate (Regulation and Development) Act make the position quite clear. Further, Section 18 itself specifies that the remedy under said Section is without prejudice to any other remedy available. Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the Consumer Protection Act or file an application under the Real Estate (Regulation and Development) Act., It was, however, urged that going by the objective or the purpose for which the Real Estate (Regulation and Development) Act was enacted and considering the special expertise and the qualifications of the Chairpersons and Members of the Authority (Section 22) and the Appellate Tribunal (Section 46), such authorities alone must be held entitled to decide all issues concerning the project registered under the Real Estate (Regulation and Development) Act. It was submitted that if the allottees were to be permitted to initiate parallel proceedings before the Messrs Imperia Structures Ltd. versus Anil Patni forum under the Consumer Protection Act, the financial drain on the promoter would render completion of construction an impossibility and, therefore, the Real Estate (Regulation and Development) Act in general and Section 89 in particular should be construed in such a way that all the issues pertaining to the concerned project be decided only by the authorities under the Real Estate (Regulation and Development) Act. Even with acceptance of such interpretation, the allottees would still be entitled to approach the authorities under Section 18 of the Real Estate (Regulation and Development) Act., It is true that some special authorities are created under the Real Estate (Regulation and Development) Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the Real Estate (Regulation and Development) Act. But for the present purposes, we must go by the purport of Section 18 of the Real Estate (Regulation and Development) Act. Since it gives a right without prejudice to any other remedy available, in effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79., At this stage, we may profitably refer to the decision in Pioneer Urban Land and Infrastructure Limited and another versus Union of India and another, where a bench of three Judges of the Supreme Court of India was called upon to consider the provisions of the Insolvency and Bankruptcy Code, 2016, the Real Estate (Regulation and Development) Act and other legislations including the provisions of the Consumer Protection Act. One of the conclusions arrived at by the Supreme Court of India was: RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the Code will prevail over the Real Estate (Regulation and Development) Act. Remedies that are given to allottees of flats or apartments are therefore concurrent remedies, such allottees being in a position to avail of remedies under the Consumer Protection Act, 1986, the Real Estate (Regulation and Development) Act as well as the triggering of the Code., We, therefore, reject the submissions advanced by the appellant and answer the questions raised in paragraph 26 hereinabove against the appellant., We may now consider the effect of the registration of the project under the Real Estate (Regulation and Development) Act. In the present case the apartments were booked by the complainants in 2011‑2012 and the builder‑buyer agreements were entered into in November 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the project was registered under the provisions of the Real Estate (Regulation and Development) Act. Merely because the registration under the Real Estate (Regulation and Development) Act is valid till 31‑12‑2020 does not mean that the entitlement of the concerned allottees to maintain an action stands deferred. It is relevant to note that even for the purposes of Section 18, the period has to be reckoned in terms of the agreement and not the registration. Condition no. (x) of the letter dated 17‑11‑2017 also entitles an allottee in the same fashion. Therefore, the entitlement of the complainants must be considered in the light of the terms of the builder‑buyer agreements and was rightly dealt with by the Consumer Disputes Redressal Commission., Lastly, it may be noted that the Consumer Protection Act, 2019 (hereinafter referred to as the 2019 Act) was enacted by Parliament to provide for protection of the interests of consumers and, for that purpose, to establish authorities for timely and effective administration and settlement of consumer disputes and for matters connected therewith or incidental thereto. Sections 2(7), 2(33), 2(37) and 2(42) define the expressions consumer, product, product seller and service respectively. Sections 85 and 86 deal with liability of product service provider and product seller. Sections 100 and 107 of the 2019 Act are to the following effect: 100. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. 107. (1) The Consumer Protection Act, 1986 is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under most of the provisions in Chapters I, II, IV, V, VI, VII and VIII including Sections 100 and 107 were brought into force w.e.f. 27‑07‑2020 vide notification dated 15‑07‑2020. The Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act. (3) The mention of particular matters in sub‑section (2) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 with regard to the effect of repeal. Section 100 of the 2019 Act is akin to Section 3 of the Consumer Protection Act and Section 107 saves all actions taken or purported to have been taken under the Consumer Protection Act. It is significant that Section 100 is enacted with an intent to secure the remedies under the 2019 Act dealing with protection of the interests of consumers, even after the Real Estate (Regulation and Development) Act was brought into force. Thus, the proceedings initiated by the complainants in the present cases and the resultant actions including the orders passed by the Consumer Disputes Redressal Commission are fully saved., Resultantly, we reject all the submissions advanced by the appellant. These appeals are accordingly dismissed affirming the view taken by the Consumer Disputes Redressal Commission. We quantify the costs at Rs.50,000/- (Rupees Fifty Thousand only) to be paid by the appellant in respect of each of the consumer cases, over and above the amounts directed to be made over to the Messrs Imperia Structures Ltd. versus Anil Patni complainants and shall form part of the amount payable by the appellant to the complainants., All the complainants are entitled to execute the orders passed by the Consumer Disputes Redressal Commission in their favour, in accordance with law.
id_1704	0	Reserved on 07 August 2023 and pronounced on 28 August 2023, CRL.M.A. 48100/2018 (for delay) was filed through advocates K.C. Mittal, Yugansh Mittal and Vaibhav Yadav versus the State represented by Additional Public Prosecutor Manoj Pant and advocates Ajit Kumar, Nutan Kumari, Nikita Sharma and Alok Kumar for respondent‑2., The instant petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 was filed on behalf of the petitioner seeking setting aside of the impugned order dated 05 July 2018 passed by the learned Metropolitan Magistrate Court, Patiala House Courts, New Delhi (the Trial Court) in Criminal Case No. 51656/2017 titled State versus Varun Bhatia, arising out of FIR No. 79/2015 registered at Police Station R.K. Puram, New Delhi under Section 509 of the Indian Penal Code, 1860., The complainant lodged a complaint with the police on 31 January 2015 stating that she was employed with HDFC Life Insurance and that the present accused was her superior officer. She alleged that the accused repeatedly demanded money, having previously received Rs 4,000 to save her job, and on 31 January 2015 demanded Rs 1,000 which she refused to pay immediately. The accused then asked her to show her purse; when she refused, he used abusive language, including the words “Gandi Bhasha” and “Gandi Aurat”, and started a quarrel. The complainant subsequently made a phone call to the police. The FIR was registered on these allegations., The complainant’s statement was recorded under Section 164 of the Code of Criminal Procedure before the learned Magistrate and, after investigation, a charge‑sheet was filed against the accused/petitioner., After hearing arguments on the point of notice/charge, the learned Metropolitan Magistrate Court, vide order dated 05 July 2018, held that a prima facie case was made out against the accused/petitioner for an offence punishable under Section 509 of the Indian Penal Code., Assailing the correctness of the impugned order, counsel for the petitioner argues that the Trial Court erred in framing charges because the complainant made improvements in her complaint and there are discrepancies between her statement recorded under Section 164 of the Code of Criminal Procedure and the initial police complaint. The petitioner was the territory‑manager supervisor of HDFC Life Insurance, Delhi branch, and the complainant was an irregular and indisciplined employee who repeatedly ignored emails regarding attendance and performance. It is contended that the complaint is malicious and malafide, that no incident as alleged ever took place, and that the complainant filed the complaint because the petitioner was raising her poor performance with the HR Department. The Delhi High Court cannot act as a post office of the prosecution and must appreciate that there is no material on record to frame charges against the petitioner., Counsel for the State, on the other hand, submits that the case is merely at the stage of charge and the contentions raised on behalf of the petitioner can be addressed during trial. It is also stated that the Internal Complaints Committee, upon the complainant’s filing, issued a warning to the accused, and that no ground for discharge of the accused is made out in view of the prima facie material available against him., Counsel for the complainant argues that the complainant’s performance was not below the mark as alleged by the petitioner’s counsel and, in light of the material on record, there are no reasons to interfere with the impugned order., The Delhi High Court has heard arguments addressed by both the learned counsel for the petitioner and the learned Additional Public Prosecutor for the State, duly assisted by counsel for the complainant, and has gone through the case file including the statements of the complainant., Before delving into the merits, it is appropriate to refer to the settled law on framing of charge. The law on charge is contained in Sections 227 and 228 of the Code of Criminal Procedure for offences triable in Courts of Session and, for trial of warrant cases by magistrates instituted upon a police report, in Sections 239 and 240. Section 239 provides that if, after considering the police report, documents under Section 173 and any examination of the accused, the magistrate finds the charge groundless, he shall discharge the accused and record reasons. Section 240 states that if the magistrate is of the opinion that there is ground for presuming the accused has committed an offence triable under the chapter, he shall frame a charge in writing, read it to the accused and ask whether he pleads guilty or claims trial., The Honorable Supreme Court in Sajjan Kumar v. CBI (2010) 9 SCC 368 considered the powers of courts in respect of framing of charge and discharge, holding that a prima facie case depends on the facts and circumstances of each case. The Court observed that the judge has the undoubted power to sift and weigh evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out, that grave suspicion justifies framing a charge, and that the court cannot act merely as a post office of the prosecution but must consider the broad probabilities of the case without conducting a full trial at the charge‑framing stage., The Honorable Apex Court in Ghulam Hassan Beigh v. Mohd. Maqbool Magrey (2022) 12 SCC 657 summed up the law regarding framing of charge, stating that the trial court must apply its mind at the time of framing and should not act as a mere post office. The endorsement on the charge sheet must be accompanied by brief reasons. The material to be evaluated is that produced and relied upon by the prosecution; the sifting need not be so meticulous as to render the exercise a mini‑trial. It is sufficient that the court be satisfied that the evidence collected is enough to presume the accused has committed an offence, even a strong suspicion will suffice., Thus, the fundamental basis for forming an opinion regarding the framing of charges revolves around determining whether there is adequate evidence on record to establish, prima facie, the commission of an offence. A prima facie case implies that there must be enough material or evidence that, when viewed at its face value, gives rise to a reasonable suspicion that the accused may have committed the alleged offence., Another important factor is the sufficiency of material on record. Courts must see whether the material placed on record is sufficient to establish a prima facie case against an accused and justify initiation of trial., In the present case, the central allegation is that the accused used the term “Gandi Aurat”, which is alleged to have outraged the complainant’s modesty under Section 509 of the Indian Penal Code. It is therefore crucial to examine the scope and essence of the term “modesty” within the legal framework and to assess whether, on an initial review, the use of these specific words can be deemed to have prima facie transgressed the complainant’s modesty., Section 509 of the Indian Penal Code reads: ‘Word, gesture or act intended to insult the modesty of a woman. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.’, The essential ingredients of Section 509 are: (i) intention to insult the modesty of a woman; and (ii) the insult must be caused by (a) uttering any words, making any sound or gesture, or exhibiting any object intending that it be heard or seen by the woman, or (b) intruding upon the privacy of the woman., Section 509 delineates two pivotal components for establishing an offence: first, the presence of an intention to insult the modesty of a woman, and second, the manner in which this insult is perpetrated. The offence requires a deliberate intention to affront a woman’s modesty, either through verbal or visual means or by intruding upon her privacy in a manner that affronts her modesty., While discussing the jurisprudence of outraging the modesty of a woman, the distinction between Section 354 and Section 509 of the Indian Penal Code must be noted. Both sections use the phrase ‘outraging the modesty of a woman’ but differ in means. Section 354 deals with physical assault or criminal force, whereas Section 509 concerns words, gestures or acts intended to insult modesty without physical force., Section 354 of the Indian Penal Code reads: ‘Assault 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 fine, or with both.’, In essence, both Section 354 and Section 509 address outraging the modesty of a woman, but Section 354 pertains to physical assault or force, while Section 509 pertains to verbal or non‑physical acts intended to insult modesty., The Honorable Apex Court in State of Punjab v. Major Singh (1966) Supp SCR 286 observed that the offence does not depend on the reaction of the woman; the intention or knowledge of the accused is the essential ingredient. The test is whether a reasonable man would think that the act was done with the intention of outraging the woman’s modesty or with knowledge that it was likely to do so, considering the woman’s station, way of life and known notions of modesty., The judgment emphasizes that the offence hinges on the accused’s intention or knowledge rather than the woman’s actual reaction, and that a reasonable person must assess whether the accused intended or knew the act was likely to outrage the woman’s modesty., In Ramkripal v. State of M.P. (2007) 11 SCC 265 the Court held that the essence of a woman’s modesty is her sex; the culpable intention of the accused is the crux, and while the woman’s reaction is relevant, its absence is not decisive. Modesty is an attribute associated with females as a class., In Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194, the Court observed that the test for outraging modesty is whether the offender’s act could be perceived as capable of shocking the sense of decency of a woman, and that the essence of a woman’s modesty is her sex., In Abhijeet J.K. v. State of Kerala (2020) SCC OnLine Ker 703, the Kerala High Court distinguished between merely insulting a woman and insulting her modesty, stating that the crux of the offence under Section 509 is the intention to insult the modesty of a woman., The Gauhati High Court in Swapna Barman v. Subir Das (2003) SCC OnLine Gau 196 observed that the insult must be directed towards the femininity of a woman to constitute an offence under Section 509, and that precise abusive or insulting words are required to establish the offence., The word ‘modesty’ does not lead only to contemplation of a sexual relationship of an indecent character; the section includes indecency but does not exclude all other acts falling short of outright indecency. In the instant case, the act of entering the house‑compound at midnight and uttering the petitioner’s name in the presence of her husband, coupling her name with his own, was intended to insult and disturb her modesty., According to the Shorter Oxford English Dictionary (Third Edition), modesty is the quality of being modest and, in relation to women, means ‘womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct’. Webster’s Third New International Dictionary defines modesty as ‘freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct’. The Oxford English Dictionary (1933 edition) describes modesty as ‘womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions’. The Cambridge Dictionary defines modesty as correct or socially acceptable behaviour and clothing, representing traditional cultural values., The Shorter Oxford English Dictionary defines outrage as a strong feeling of shock and anger; an act or event that is violent, cruel or very wrong that shocks people or makes them very angry. The Cambridge Dictionary defines outrage as an unfair action or statement that causes someone to feel very angry, shocked, or upset., Outrage encapsulates profound emotions of shock and anger in response to actions, events, or statements perceived as morally reprehensible, cruel, unjust, or deeply offensive, highlighting a powerful emotional response to perceived wrongdoing., Modesty of women refers to a culturally and socially defined set of behaviours, manners and dress codes intended to preserve a woman’s sense of privacy, decency and dignity. It encompasses maintaining a respectful and reserved demeanor, particularly in appearance, to safeguard a woman’s personal space, honour and reputation.
id_1704	1	It is rooted in the belief that certain behaviors and appearances are deemed appropriate to protect a woman's honor and prevent any potential harm or exploitation. The intent of the legislature is to safeguard a woman's integrity and ensure that she is not subjected to any form of unwarranted or inappropriate behavior that could undermine her self‑respect or social standing. Modesty often intersects with traditional gender roles and societal expectations. In many cultures, women are held to higher standards of modesty than men, with emphasis placed on covering the body and maintaining a demure demeanor. This can sometimes lead to gender inequality and restrict women's freedoms., Crucially, the interpretation of what constitutes an outrage to modesty can be context‑specific, as it depends on societal norms, cultural values, and individual perspectives. What may be considered an affront to one person's sense of modesty might not be the same for another. Therefore, legal systems often rely on objective standards to evaluate these violations, taking into account the reasonable person's reaction in a given situation., In essence, “outraging the modesty of a woman” transcends a mere definition; it is an embodiment of the collective commitment to respect, equality, and the preservation of individual rights. It underscores the importance of upholding the dignity and self‑worth of every woman, acknowledging the unique and multifaceted nature of this concept in different cultural and societal contexts. Ultimately, it reinforces the imperative to protect and empower women, ensuring their right to live free from insults, affronts, or abuses to their feminine sense of propriety and decorum., Defining intention in the context of Section 509 of the Indian Penal Code: Outraging modesty has been defined as circumstances involving indecent conduct on the part of the accused, wherein the accused's behaviour or actions are such that they deliberately and egregiously offend or insult the modesty, dignity, and self‑respect of a woman., Indeed, an essential aspect of outraging the modesty of a woman is the presence of indecent intention. In legal terms, it is not merely the act itself but the intent behind it that matters. To qualify as an outrage to modesty, the accused must have a deliberate and indecent intention in their actions or behaviour. This means that their conduct is not accidental or innocent but is driven by a specific purpose to offend or insult the modesty, dignity, or self‑respect of a woman. The requirement of indecent intention serves as a crucial element in distinguishing between regular interactions and actions that constitute an offence against a woman's modesty, emphasizing the need to prove both the act and the intent in such cases., In the assessment of an accused individual's intention to outrage the modesty of a woman, a comprehensive examination of numerous factors becomes essential. This evaluation extends beyond the mere act itself, delving into the accused's intent and the context in which the action occurred. Factors such as the nature of the act, the choice of words or gestures, the surrounding circumstances, the accused's background, and the complainant's perspective are all meticulously considered. Furthermore, cultural and social norms, as well as any independent evidence, play pivotal roles in this determination. By scrutinizing these multifaceted elements, the legal system strives to discern whether the accused possessed the indecent intention to insult, offend, or abuse the woman's modesty. Such a thorough approach recognizes the complexity of human behaviour and ensures that justice is met with a comprehensive understanding of the unique circumstances of each case., Indeed, a delicate balance must be struck when construing the intention of the accused in cases of outraging the modesty of a woman. It is not appropriate to automatically presume the existence of this intention without thoroughly considering the multifaceted elements mentioned above. Precise and context‑specific assessments are required to ensure that justice is both fair and accurate. This balanced approach acknowledges the need to protect the rights and dignity of women while also recognizing the complexities and nuances of human behaviour, as well as the importance of considering the specific circumstances and background of each case., In the background of the above analysis, the High Court of India proceeds to judge on the touchstone of such analysis as to whether the allegations leveled in the complaint by the complainant can be considered sufficient material along with the statement under Section 164 of the Criminal Procedure Code to prima facie make out a charge under Section 509 of the Indian Penal Code against the present accused., The material on record: Dealing with the argument of the learned counsel for the petitioner that there was no sufficient material on record even to prima facie make a case under Section 509 of the Indian Penal Code, the High Court of India deems it appropriate to refer to the material on record. The first step in the initiation of any criminal case is the registration of a First Information Report based on a complaint lodged by a complainant. Thus, in the present case it is useful to refer to the First Information Report. The relevant portion of the First Information Report reads as follows: The relevant portion of the impugned order dated 05.07.2018 reads as follows: According to the complainant, she works in HDFC Life Insurance and the accused is her boss. It is alleged that the accused demanded money from her. It is alleged that on 31.01.2015 the accused demanded Rs 1000 from her and when the complainant refused, the accused used vulgar language against her. He used the words “Gandi Aurat” against the complainant and started quarreling with her, on which the complainant made a call at 100 number. It is submitted on behalf of the accused that the present charge sheet has been filed on the basis of the sole testimony of the prosecutrix/complainant. It is alleged that a false case has been lodged by the complainant as she was not working in the office properly and the accused, being the supervisor, raised such issue with the complainant time and again., The learned counsel for the accused has relied upon judgments of higher courts. The High Court of India is of the considered view that at the time of framing of charge or notice, the court has to see the material produced by the prosecution and whatever defence the accused wishes to bring can be placed on record at the time of defence evidence. The High Court further holds that the argument of the learned counsel that the charge sheet has been filed only on the basis of the sole testimony of the prosecutrix/complainant has no force, as the court must assess the quality of evidence rather than the quantity. Accordingly, in view of the statement of the complainant, a prima facie case under Section 509 of the Indian Penal Code is made out against the accused. The matter was put up for framing of charge against the accused on 27.11.2018., Apart from the First Information Report, a statement under Section 164 of the Criminal Procedure Code of the complainant was recorded, the relevant portion of which reads as follows: “Before the entire office staff, Varun Bhatia insulted me. Forcibly he took my purse and checked. He told one employer named Mantosh to give me Rs 1000 so that I could give him. Then he insulted me very much.”, Sufficiency of material to attract criminality under Section 509 of the Indian Penal Code: A perusal of the material on record reveals that the learned Trial Court has based its findings primarily on the use of the word “Gandi Aurat” against the complainant to reach a conclusion that the petitioner is liable to face trial for outraging the modesty of the complainant. The learned Trial Court relied on the complaint lodged by the complainant with the police and the statement given by the complainant under Section 164 of the Criminal Procedure Code to the Magistrate. The statement under Section 164 does not mention the use of those words by the accused. In this regard, the meaning of the word “Gandi Aurat” has to be examined as to whether it has the potential to outrage the modesty of a woman., At the outset, the High Court of India notes that in the First Information Report, the complainant had alleged that the present petitioner had called her “Gandi Aurat”. However, a reading of the statement of the complainant recorded under Section 164 of the Criminal Procedure Code before the Magistrate reflects that the only allegation in that statement is that Varun Bhatia insulted the complainant in front of the entire staff and the words “Gandi Aurat” were not stated to have been used by the petitioner., Since the word “Ganda” or “Gandi Aurat” is a Hindi word which is the focal point of the present case, it is essential to translate its meaning into English to decide the case. The High Court of India, while taking reference from the Oxford Hindi‑English Dictionary, understands that the Hindi word “Ganda” or “Gandi” means dirty, and the word “Aurat” means female. Thus, the literal translation of the phrase “Gandi Aurat” is “dirty woman”, and in common parlance it does not specifically relate to a woman’s modesty., The word “dirty” is used, therefore, in the context of an intangible or tangible thing to mean unclean, and in the context of a human being it may also connote one being unclean, or be used for the purpose of chiding someone even affectionately, as in the expression “Ganda Baccha”., The term “outrage” implies a strong feeling of shock, often linked to acts or events characterized by violence, cruelty, or grave wrongdoings that deeply disturb individuals and elicit strong disapproval., In light of the meaning of the words “Gandi Aurat”, which can be translated as “dirty woman”, it becomes evident that these words, when objectively assessed, do not have the potential to elicit a strong feeling of shock in a reasonable person, whether male or female. The term “outrage” implies a profound emotional response, often associated with shock. In this context, the words “Gandi Aurat”, while certainly impolite and offensive, do not rise to the level of criminal‑intent‑driven words that would typically provoke shock in a woman so as to be covered in the definition of a criminal offence under Section 509 of the Indian Penal Code., As laid down in the case of Ram Kripal v. State of Madhya Pradesh, the culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this provision is an attribute associated with female human beings as a class. It is a virtue which attaches to a woman owing to her sex., In this context, the High Court of India notes that the reaction of a woman to a word or gesture will differ, and therefore the court must consider the peculiar circumstances of the case, as in the present case where obscene or ludicrous words were not used but the two words “Gandi Aurat” were used, which can mean different things to different people. In such cases, the courts will have to apply the test of a reasonable person’s reaction to determine the impact and intent behind the words or gestures in question. While adjudicating cases under Section 509 of the Indian Penal Code, the courts will also have to consider the background of the complainant, as that can guide the courts in deciding how the complainant would have interpreted the words and whether her modesty was outraged., What follows from the above discussion is that it will be crucial for the High Court of India to appreciate the evidence placed before it to reach a conclusion as to whether there is material which portrays intention and knowledge on the part of the petitioner to outrage the female modesty., The High Court of India, while reading the phrase “Gandi Aurat” in the background of the overall circumstances of the case, is of the opinion that the petitioner's actions, when evaluated objectively, did not exhibit the level of intent or knowledge necessary to reasonably anticipate that they would provoke such a strong and adverse emotional reaction as to qualify as an outrage to a woman's modesty., The phrase “Gandi Aurat” read in isolation, without context or any preceding or succeeding words indicating intent to outrage the modesty of a woman, will not bring these words within the ambit of Section 509 of the Indian Penal Code. Had there been any mention of other words used, contextual information, or any gesture accompanying, succeeding or preceding these words reflecting criminal intent to outrage the modesty of a woman, the outcome of the case would have been different., When examining the act attributed to the petitioner within the context of the current case, particularly taking into account the statement recorded under Section 164 of the Criminal Procedure Code and other available evidence, it becomes evident that the petitioner lacked the requisite intention or knowledge to conclude that the alleged use of the term “Gandi Aurat” would meet the criteria for outraging the modesty of a woman by the reasonable person’s standard., It was also argued by the learned Additional Public Prosecutor for the State that the complainant had filed a complaint before the Sexual Harassment Committee of her office, after which a warning had been issued to the present applicant for using derogatory language against the complainant, as a verdict of the committee. It was also stated that the complaint before the Committee was filed after a period of more than four months from the date of registration of the First Information Report, which should also be taken into consideration by the court., In this regard, the High Court of India is of the opinion that the proceedings which have taken place before the Sexual Harassment Committee were filed separately subsequent to the filing of the present case after termination of her services. The proceedings before the Sexual Harassment Committee have already culminated in a verdict of the committee and a warning issued on the basis of material on record. It was concluded that the present accused/applicant had used derogatory language against the complainant. Those proceedings which have already attained finality cannot have a bearing on the present case since the present case was registered much prior to filing of the said complaint, i.e., on 31.01.2015, and therefore the High Court of India will independently decide whether a criminal charge is made out against the present accused/applicant solely on the basis of material collected in the First Information Report by the investigating officer concerned. The court also notes that a departmental enquiry is a separate proceeding and does not have bearing on the criminal trial, which is to be adjudicated independently, guided by the principles of the criminal justice system, on the basis of sufficiency of material against the accused on record for the purpose of framing of charge., Needless to say, every case has to be judged in the background of the peculiar facts and circumstances not only of the case, but also of the people who are involved in the alleged incident., It is also not in dispute that where the allegations in the First Information Report or complaint, even if taken at face value and accepted in their entirety, do not prima facie constitute the offence alleged or make out a case against the accused, or where the criminal proceedings are manifestly attended with mala fide intent or where the proceedings are maliciously instituted with an ulterior motive for vengeance against the accused and with a view to spite him due to a private personal grudge, the proceedings are liable to be set aside., In the present case, the complainant and the accused were in the capacities of employee and superior officer respectively. There is no mention apart from a single word that the accused had called her a dirty woman, since they were having a dispute, which is apparent from a number of e‑mails shared by them wherein he, being her boss, continuously asked her to attend meetings and the office. She was neither attending the meetings nor coming to the office on time nor complying with any of her duties as required., Thus, the case has also been examined in the backdrop of the conduct of the complainant herself, whose not attending the office and continuous absence, as well as not replying to official mails, was of great concern to the petitioner who was the superior officer of the complainant. Though this is not the sole reason to base the findings of the present order, it is important to note that there is no evidence of any behavior on the part of the petitioner indicating that he persisted in any unwanted social conduct; at best it is a case of vexatious comments which may reasonably be taken as unwelcome by the complainant. The language used is not profane, vulgar, or sexually coloured but may hinge on harsh, derogatory language., Insulting a woman or being rude to her and not behaving with her as she would have expected in a chivalrous manner will not be covered under the definition of outraging the modesty of a woman, depending on the facts and circumstances of each case., In a criminal case, even at the stage of charge, the court has to draw a distinction between there being prima facie material for framing charge and there being no material of the nature which will be sufficient to frame charge under Section 509 of the Indian Penal Code by fulfilling its basic ingredients., As the High Court of India approaches this case’s conclusion, it will be crucial to note that while the court is tasked with interpreting and applying gender‑specific legislation, this should not translate into a biased approach. Instead, the court should be firmly guided by the fundamental principles of criminal jurisprudence and judicial precedents on the basis of which an order on charge is to be passed, ensuring a balanced judicial perspective in line with the legislative intent. The mere fact that legislation is designed to address specific gender‑related concerns should not be misconstrued as being inherently biased against the opposite gender or being anti‑men wherever applicable. It is crucial to recognize that gender‑specific laws are not meant to be “anti‑opposite gender” but rather serve the purpose of addressing unique issues faced by a particular gender., Furthermore, the existence of gender‑specific legislation does not empower the court to relax the golden principle of availability of sufficient material on record at the stage of framing of charge. The foundation of any legal proceeding, regardless of the specific gender it pertains to, rests on the availability of adequate evidence and adherence to due process of law. In essence, gender specificity should not compromise the fundamental principles of fairness and justice., Section 509 of the Indian Penal Code does not inherently introduce a presumption in favour of women, and it is essential for the courts to apply the principles of charge and discharge objectively, without being unduly influenced by the fact that this section is gender‑specific, while not forgetting the intent behind enactment of such a section. The mere gender specificity of a legal provision does not automatically create a presumption in favour of that gender, unless such a presumption is explicitly articulated within the legislation itself. In other words, the court should approach cases under Section 509 of the Indian Penal Code with a neutral and impartial stance, testing them in accordance with long‑established criminal legal principles of law and procedure. Every court of law has to uphold the principles of justice, fairness, and objectivity in its proceedings, regardless of the gender‑specific nature of the law in question., The necessity for the court to remain gender neutral while adjudicating even gender‑specific offences: As a court of law, the scale of balance has to be in favour of justice, and not just one party. The fundamental duty is to maintain a delicate equilibrium that invariably tilts in favour of justice, rather than favouring any single party. This balance is the bedrock upon which the judicial system rests, ensuring that the principles of fairness, impartiality, and the rule of law are upheld. This commitment to an impartial balance underscores the essence of the legal system, serving as a safeguard against bias, prejudice, or any undue advantage for any party. The High Court of India's unwavering dedication to the pursuit of justice ensures that the rights and interests of all individuals involved are respected and upheld, fostering public trust and confidence in the judicial process., The fact that a piece of legislation is gender‑specific should not be misconstrued to mean that the role of a judge also changes from being neutral to tilting towards a particular gender. Irrespective of the gender‑specific nature of a law, the judicial duty fundamentally requires unwavering neutrality and impartiality. The judge's role is to objectively interpret and apply the law, free from any form of gender bias or predisposition. Gender‑specific legislation exists to address the unique concerns and challenges faced by particular genders within society. However, this does not imply that the judge is to be influenced or swayed by gender‑related factors when administering justice unless specific presumptions are legislated in favour of a particular gender. In essence, judicial neutrality is an indispensable cornerstone of the legal system, ensuring that all parties, regardless of gender, are treated fairly and equitably., In India, the criminal justice system is adversarial in nature. However, it cannot be seen as adversarial between men and women per se. Instead, it should solely revolve around two individuals: one being the complainant and the other being the accused, irrespective of gender, while adjudicating the cases with firm remembrance and appreciation of the social context and situation of a particular gender who may be in a less advantageous position than the other., Every criminal case has to be treaded upon with caution and care as it also has an impact on the life of the person facing it. A criminal adjudicatory process must be balanced as the judge has to balance the scales of justice between the complainant as well as the accused. Though it is a very delicate and difficult task, especially in cases where the definitions of certain words crucial in a section are absent, this duty has been performed by the courts in the light of judicial precedents and peculiar facts and circumstances of the case. Similarly, this case also needed balancing the right of the accused and the complainant to a fair hearing at the time of framing of charge, and while adjudicating the same, a balance had to be maintained., This court notes that the Sexual Harassment Committee has already issued a warning to the petitioner for using derogatory language against the complainant after a complete inquiry. The committee’s verdict already stands closed without being challenged by the complainant. The insufficiency of material on record has resulted in the petitioner succeeding before this court. However, the court expresses that the petitioner should have been careful in the use of harsh language against the complainant and should have been more courteous, even if they were having a tiff with each other., Therefore, in view of the reasons recorded in the preceding discussion and the observations made therein, and considering the overall facts and circumstances of the case, the impugned order dated 05.07.2018 passed by the learned Trial Court is set aside., Accordingly, the present petition along with pending applications stands disposed of.
id_1705	0	Bail Application No. 834 of 2023 dated the 24th day of February 2023. This is an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure by the petitioner who is arrayed as accused in Crime No. 19 of 2023 of Chalissery Police Station, Palakkad, where he is alleged to have committed offences punishable under Sections 341, 323 and 294(b) of the Indian Penal Code as well as under Sections 3 and 4 of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act., Heard the learned counsel for the petitioner and also the learned Public Prosecutor. I have perused the case diary materials produced by the learned Public Prosecutor., The prosecution case is that at about 18:50 hours on 08 January 2023, when the petitioner, who is a doctor by profession, was on on‑call duty, he examined the wife of the accused, aged 27 years, at the casualty attached to Star Med Family Clinic, Karukaputhoor. While doing so, the accused caught hold of his collar and slapped his left cheek on the allegation that the de facto complainant touched the body of the wife of the accused. On that premise, the prosecution alleges commission of the above offences., While pursuing the relief of pre‑arrest bail, the learned counsel for the petitioner pointed out that the petitioner is innocent. According to the learned counsel, the doctor misbehaved towards the wife of the accused and a complaint was lodged by the wife of the accused, and a crime alleging commission of an offence punishable under Section 354 of the Indian Penal Code was also registered and is under investigation., It is submitted by the learned counsel for the petitioner that the petitioner is innocent and the allegations are false. According to the learned counsel, this case was registered as a counter‑blast to avoid legal consequences that would arise out of the case lodged by the wife of the accused., The learned Public Prosecutor strongly opposed bail on the submission that the petitioner, who has criminal antecedents and involvement in four crimes, manhandled the de facto complainant and obstructed his duty while the doctor was examining his wife, on the allegation that the doctor had touched her body as part of examination., According to the learned Public Prosecutor, attacks against doctors are on a high alarm and therefore doctors are under threat and fear, apprehending their implication in crimes while they are performing clinical examinations. Threat against doctors would be detrimental to the interest of the people at large. Hence it is submitted that this is not a fit case to grant anticipatory bail where prosecution allegations are well made out., I have perused the First Information Statement given by the doctor from which this crime was registered, along with the statements given by the pharmacy assistant and the administrative assistant of Star Med Family Clinic where the occurrence was reported. In addition, one Rakhi also gave a statement in support of the occurrence., In this matter, the First Information Statement was lodged at 11:30 hours on 09 January 2023 and the crime was registered accordingly alleging commission of the above offences. It is true that a counter case was also registered after registration of this crime., On perusal of the case records along with the scene report and the statements of the witnesses, the prosecution case is well made out. The allegation of misbehaviour by the doctor, as pointed out by the learned counsel for the petitioner, alleged to have been committed in the presence of two sisters and in an open space at the casualty of the hospital, cannot be believed prima facie. It is relevant to note further that the allegation of misbehaviour was raised after registration of this crime., It is reported by the investigating officer that the petitioner is a person having criminal antecedents and involvement in four crimes as listed hereunder: Erumapetty Police Station Crime No. 994/2014 under Sections 143, 147, 149, 333, 341, 326; Ponnani Police Station Crime No. 324/2020 under Sections 120(b), 341, 324; Kuttipuram Police Station Crime No. 210/2022; Chalissery Police Station Crime No. 185/2015 under Section 118(e) of the Kerala Police Act., On evaluation of the factual aspects espoused from the case diary materials, the prosecution case is well made out and attack against doctors while examining patients, merely because they touched the body of the patients, could not be encouraged. Doctors who have devoted their energy and time to learn the methods of treating patients cannot perform clinical examination without touching the patients. Placement of a stethoscope on the left chest portion of the patient to observe and evaluate the heartbeat is a routine part of examination. The High Court is conscious of the fact that all allegations on the ground of misbehaviour by the doctor while examining patients are false. Genuine cases of such nature could not be ruled out in toto, but generally the truth of those allegations should be evaluated from the materials and attendant circumstances to separate the grain from the chaff., In the case on hand, attack against the doctor at the instance of the petitioner is well made out and if the petitioner is granted anticipatory bail, it would lead to a very dangerous situation, whereby doctors, who are duty bound to treat patients as part of their oath, will not get protection and the proper maintenance of health of the public at large would be in peril. In such a case, arrest and custodial interrogation are absolutely necessary to accomplish successful investigation and effective prosecution., Therefore, in such cases, grant of anticipatory bail when prima facie the offences are made out would not only spoil the investigation but would lead to a traumatic situation. Consequently, I am not inclined to allow this petition. The bail application stands dismissed.
id_1708	0	On 24 November 2022, the Hon'ble Justice G.S. Ahluwalia of the Madhya Pradesh High Court heard a writ petition filed under Article 226 of the Constitution of India. The petitioner seeks: (a) direction to the respondent to initiate departmental action against the culprits of Crime No. 295/2019 and conclude the same within the stipulated time; (b) transfer of the investigation of Crime No. 295/2019, registered at Police Station Bhitarwar, District Gwalior, to the Central Bureau of Investigation and submission of a final report within the stipulated period; (c) payment of compensation to the petitioner/victim of the custodial death amounting to Rupees one crore, to be recovered from the culprits’ pockets; (d) award of litigation costs to the petitioner; and any other relief deemed fit by this Court., The petitioner states that on 10 August 2019 an argument arose between his father and a person named Khemu Shakya over adjoining land. Both parties went to Police Station Belgada, where the police lodged Khemu’s report and took the petitioner’s father into custody. When the father insisted on lodging his own report, the police beat him mercilessly, resulting in his death from injuries sustained. The petitioner immediately reported the incident to higher officials, but no action was taken. After persistent efforts, an FIR for offence under Section 302 of the Indian Penal Code was lodged against the Station House Officer of Police Station Belgada and five other police personnel. The matter was subsequently transferred to Police Station Bhitarwar, and a copy of the FIR is annexed to the petition., The petitioner contends that, despite more than three years having elapsed, the police have not filed the final report., The Madhya Pradesh High Court, by order dated 11 April 2022, issued notice. On 13 June 2022, the police filed a status report stating that the deceased died inside the lock‑up room due to negligent act and illegal detention. On 16 November 2022, the State Counsel prayed for time to file a status report. No further report was filed, and on 23 November 2022 the Court observed that the custodial death occurred in 2019 and the investigation remains incomplete. The Court directed the State Counsel to keep the case diary available on 24 November 2022 at 10:15 AM, to ensure the Investigating Officer appears before the Court on the next date, and to answer whether any parallel enquiry, including a Magisterial enquiry, would affect the outcome of the investigation., Shri Sanjay Chaturvedi, Sub‑Divisional Officer (Police) (Acting), Karera, District Shivpuri, was present with the case diary., The investigating officer was directed to read out the proceedings of the investigation. Shri Sanjay Chaturvedi submitted that initially Shri Atmaram Sharma, Sub‑Divisional Officer (Police), Karera, Shivpuri, was investigating the matter. Later the investigation was taken over by Shri G. D. Sharma, Sub‑Divisional Officer (Police), Karera, District Shivpuri, who is the current investigating officer., The respondents filed a fresh status report on 24 November 2022, stating that a status report had already been filed on 10 June 2022. The present investigating officer took over the investigation on 22 June 2022 but was occupied with three‑tier panchayat elections from 27 May 2022 to 4 August 2022, causing a delay. He tendered an unconditional apology for the delay, noting that he could not examine the case diary up to 16 August 2022 due to election duties. On 2 September 2022, the District Prosecution Office gave its legal opinion, and on 23 November 2022 offences under Sections 306 and 342 of the Indian Penal Code and Section 7 of the Prevention of Corruption Act were added. Sanction was sought for the prosecution of Assistant Sub‑Inspector Vijay Singh Rajput (the then Station House Officer), Head Constable Arun Mishra, Constable Dharmendra, Constable Neeraj Prajapati, Constable Vijay Kushwaha, and Sainik Ehsaan Khan., Shri Sanjay Chaturvedi admitted that he had not viewed the CCTV footage of the police station, although it was available. He stated that he took no action until 21 November 2022, and only after receiving information on 23 November 2022 that he had to appear before the High Court with the police diary, he rushed to Gwalior. Without further investigation and disregarding the directions of the District Prosecution Officer, he added offences under Sections 306 and 341 of the Indian Penal Code and Section 7 of the Prevention of Corruption Act. He acknowledged that he did not investigate the matter despite having received the Magisterial/Judicial enquiry report and the District Prosecution Officer’s opinion, offering no explanation other than pleading for mercy and apologising., The case concerns a custodial death that occurred in Police Station Belgada, District Gwalior. The deceased, against whom an FIR was lodged, was taken into custody and restrained in the police station without a formal arrest. Police circulars prohibit certain items, including a 'safi', from the lock‑up. The lock‑up, visible from police tables and rooms, has an iron‑rod door, making the interior visible from outside. Nevertheless, the deceased died in the lock‑up by hanging. The investigating officer submitted that the deceased was not arrested yet managed to enter the lock‑up and hang himself., Although the custodial death took place in Police Station Belgada, District Gwalior, on 10 August 2019, the investigation was conducted by the Sub‑Divisional Officer (Police) posted in Karera, District Shivpuri, a neighboring district. This appears to have been an attempt by the Gwalior police to project a free, fair, and impartial investigation by involving another district’s police, but the investigation remained in suspended animation for two years, indicating that the Gwalior police were actively involved in camouflaging the investigation from the outset., The State counsel submitted that five police personnel—Assistant Sub‑Inspector Vijay Singh Rajput (the then Station House Officer), Head Constable Arun Mishra, Constable Dharmendra, Constable Neeraj Prajapati, and Constable Vijay Kushwaha—were placed under suspension on 10 August 2019. However, their suspension orders were revoked on 22 February 2020, within six months. Consequently, while the investigation was kept in suspended animation, the suspension orders of the erring officers were withdrawn, giving them undue advantage., The petitioner seeks transfer of the investigation to the Central Bureau of Investigation. Before addressing the facts, this Court considers the law laid down by the Supreme Court and High Courts on such transfers., In Nasima v. State of Uttar Pradesh, SLP (Cri) No. 551/2022, the Supreme Court held that ‘investigation’ under Section 2(h) of the Code of Criminal Procedure includes collection of evidence by the police or any person authorized by the magistrate, encompassing search for material evidence and facts to determine whether an offence has been committed. A fair investigation is the backbone of the criminal justice system, protecting the rights of victims and the fundamental rights of citizens., In Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529, the Supreme Court emphasized that abuse of public office by a court clerk or police officer is a matter of great public concern, warranting stringent punishment to maintain public confidence in the justice system., In State of Punjab v. Central Bureau of Investigation, (2011) 9 SCC 182, the Supreme Court observed that when local police investigation is unlikely to deliver justice, the High Court may direct the investigation to the Central Bureau of Investigation. The Court also noted that even after a chargesheet is filed, the High Court may stay further proceedings and order a CBI investigation in the interest of justice., In Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, the Supreme Court affirmed that superior courts have jurisdiction under Section 482 of the Code of Criminal Procedure and Article 226 of the Constitution to direct fresh, de novo, or reinvestigation, and to transfer investigation to another agency, provided the ends of justice demand such action, though this power must be exercised sparingly and with great circumspection., In State of West Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571, the Supreme Court held that the extraordinary powers of the High Court under Article 226 must be exercised sparingly, cautiously, and in exceptional situations to ensure credibility and confidence in investigations, including directing the Central Bureau of Investigation where necessary., In Dharam Pal v. State of Haryana, (2016) 4 SCC 160, the Supreme Court reiterated that constitutional courts may direct further investigation by another agency to ensure a fair investigation and fair trial, especially when the existing investigation is inadequate, and that such power, though exercised rarely, is essential to prevent miscarriage of justice., In Pooja Pal v. Union of India, (2016) 3 SCC 135, the Supreme Court explained that while Section 173(8) of the Code of Criminal Procedure delineates the police’s investigative function and the judiciary’s adjudicatory function, the Court retains residuary jurisdiction to direct the investigating agency when the investigation is not being conducted properly or with due haste, and may order de novo investigation by an independent agency in exceptional circumstances to safeguard the rights guaranteed under Articles 20 and 21 of the Constitution.
id_1708	1	In Gudalure M.J. Cherian, the Supreme Court of India, in a petition under Article 32 of the Constitution of India lodged in public interest, after taking note that a charge‑sheet had already been submitted, directed the Central Bureau of Investigation to hold further investigation in respect of the offence involved. In recording this conclusion, the Supreme Court noted that the nuns who were victims of the tragedy did not come forward to identify the culprits and that, as alleged by the petitioners, the four persons set up by the police as accused were not the real culprits and that the victims were being asked to accept them as such. The paramount consideration for the direction issued was to secure justice between the parties and to instil confidence in the public mind. The same imperative impelled the Supreme Court to issue a similar direction for fresh investigation by the Central Bureau of Investigation in the Punjab and Haryana High Court Bar Association matter, where the investigation had otherwise been completed and a charge‑sheet was submitted., The Supreme Court, dealing with the proposition that once a charge‑sheet is filed it would then be exclusively in the domain of the competent court to deal with the case on merits in accordance with law and that the monitoring of the investigation would cease in all respects, held, in particular, in K.V. Rajendran, that although it is ordinarily so, the power of transferring investigation in rare and exceptional cases for the purpose of doing justice between the parties and to instil confidence in the public mind can be exercised invoking its constitutional power to ensure a fair, honest and complete investigation., The precedential ordainment against absolute prohibition for assignment of investigation to any impartial agency like the Central Bureau of Investigation, notwithstanding the submission of the charge‑sheet by the normal investigating agency, in an exceptional factual situation warranting such initiative, is unquestionably absolute and hallowed by time. Such a measure, however, cannot be a matter of course or routine but must be adopted essentially to live up to the objective of guaranteeing an independent and upright mechanism of justice dispensation without fear or favour, by treating all alike., In the decisions cited on behalf of the Central Bureau of Investigation, the Supreme Court in K. Saravanan Karuppasamy and Sudipta Lenka recounted the propositions underpinning the primacy of credibility and confidence in investigations, the need for complete justice and enforcement of fundamental rights judged on the touchstone of high public interest and the paramountcy of the rule of law., The Supreme Court of India, in Neelam Mishra v. Union of India, reported in (2017) 12 SCC 775, held that there had been no proper investigation in respect of the crime in question and that the material evidence had been destroyed by the accused persons who had influence. Mister V. Shekhar, learned Senior Counsel for the petitioner, urged that the case be transferred to the Central Bureau of Investigation to assuage the feelings of an anguished mother in search of justice. Mister Rana Mukherjee, learned Senior Counsel for the Central Bureau of Investigation, and Mister Ajit Kumar Sinha, learned Senior Counsel appearing for the Delhi Police, initially submitted that the Delhi Police had taken extreme pains to solve the issue, but later left the matter to the discretion of the Court. The Court observed that there was no laxity in the investigation carried out by the Delhi Police, but that the Central Bureau of Investigation is more equipped and enjoys greater public confidence. Accordingly, the Court directed the Central Bureau of Investigation to investigate the crime independently and to file a status report before the Supreme Court within three months, emphasizing that the Central Bureau of Investigation must investigate independently, impartially and objectively without being influenced by any prior investigation or prior status report., The Supreme Court of India, in Bharati Tamang v. Union of India, reported in (2013) 15 SCC 578, laid down several principles: (i) the test of admissibility of evidence lies in its relevancy; (ii) unless there is an express or implied constitutional prohibition or other law, evidence placed as a result of an illegal search or seizure is not liable to be shut out; (iii) if deficiency in investigation or prosecution is visible, courts must deal with it with an iron hand within the framework of law; (iv) it is the duty of the prosecutor as well as the Court to ensure that full and material facts are brought on record to avoid miscarriage of justice; (v) in appropriate cases the Supreme Court can constitute a Special Investigation Team and give directions to the Central and State Governments to assist such a team in booking the real culprits and conducting effective prosecution; (vi) while entrusting criminal prosecution to other instrumentalities of the State or by constituting a Special Investigation Team, the High Court or the Supreme Court can also monitor such investigation to ensure proper conduct of the prosecution; (vii) even if a charge‑sheet is filed, the Supreme Court or the High Court may direct investigation to be handed over to the Central Bureau of Investigation or any other independent agency to do complete justice; (viii) in exceptional circumstances the Court may direct investigation de novo to prevent miscarriage of criminal justice., The Supreme Court of India, in State of Punjab v. Davinder Pal Singh Bhullar, reported in (2011) 14 SCC 770, held that before directing the Central Bureau of Investigation to investigate, the Court must, on the basis of pleadings and material on record, conclude that a prima facie case is made out against the accused. The Court cannot direct the Central Bureau of Investigation merely on the basis of speculation. In Divine Retreat Centre, the Court held that a High Court may pass an order directing investigation against a person only after giving that person an opportunity of being heard, in accordance with the principles of natural justice. In D. Venkatasubramaniam v. M.K. Mohan Krishnamachari, the Court held that an order passed behind the back of a party is a nullity and that the person must be impleaded as a necessary party. In Disha v. State of Gujarat, after considering judgments such as Vineet Narain v. Union of India and others, the Court held that the matter can be transferred to the Central Bureau of Investigation or any other special agency only when the accused is a very powerful and influential person or when State authorities like high police officials are involved and the investigation has not proceeded in proper direction or has been conducted in a biased manner. The Court emphasized that such directions may be issued to do complete justice and to lend credibility to the final outcome of the investigation. Consequently, a constitutional court may direct the Central Bureau of Investigation to investigate a case provided that, after examining the allegations, it reaches a prima facie conclusion against the accused, that the person against whom investigation is sought is impleaded as a party and given a reasonable opportunity of being heard, and that the direction is made in exceptional circumstances where the accusation is against a person who, by virtue of his post, could influence the investigation., The Supreme Court of India, in K.V. Rajendran v. Central Bureau of Criminal Investigation Department, reported in (2013) 12 SCC 480, reiterated that the power to transfer investigation to an independent agency like the Central Bureau of Investigation must be exercised in rare and exceptional cases where it is necessary to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and a fair, honest and complete investigation is imperative. Where the investigation has already been completed and a charge‑sheet filed, ordinarily superior courts should not reopen the investigation and should proceed with the matter in accordance with law, without expressing any opinion on the merits of any accusation. The Court cited several authorities, including Gudalure M.J. Cherian v. Union of India, R.S. Sodhi v. State of Uttar Pradesh, Punjab and Haryana High Court Bar Association v. State of Punjab, Vineet Narain v. Union of India, Union of India v. Sushil Kumar Modi, Disha v. State of Gujarat, and Rajender Singh Pathania v. State (National Capital Territory of Delhi) and State of Punjab v. Davinder Pal Singh Bhullar., In Rubabbuddin Sheikh v. State of Gujarat, the Supreme Court dealt with a case where the accusation was against high officials of the Gujarat Police in respect of a fake encounter. After the Gujarat Police concluded its investigation and submitted a charge‑sheet, the Court held that because the allegations were against top police personnel, the investigation by the State agency could not be satisfactorily relied upon. To do justice and instil confidence in the victims and the public, the investigation could be transferred to an independent agency despite the filing of a charge‑sheet by the State investigating agency., A Constitution Bench of the Supreme Court of India, in State of West Bengal v. Committee for Protection of Democratic Rights, clarified that the extraordinary power to transfer investigation from a State investigating agency to any other investigating agency must be exercised sparingly, cautiously and in exceptional situations where it is necessary to provide credibility, instil confidence in the investigation, or where the incident may have national and international ramifications or where such an order is necessary for doing complete justice and enforcing fundamental rights., The Supreme Court of India, in Sakiri Vasu v. State of Uttar Pradesh, held that the Court or the High Court has power under Article 136 or Article 226 to order investigation by the Central Bureau of Investigation, but such power should be exercised only in rare and exceptional cases; otherwise the Central Bureau of Investigation would be flooded with a large number of cases and would find it impossible to properly investigate all of them., In view of the foregoing, the law can be summarised to the effect that the Court may exercise its constitutional powers to transfer an investigation from a State investigating agency to an independent agency like the Central Bureau of Investigation only in rare and exceptional cases, such as where high officials of State authorities are involved, where the accusation itself is against top officials of the investigating agency thereby allowing them to influence the investigation, and where it is necessary to do justice and to instil confidence in the investigation, or where the investigation is prima facie found to be tainted or biased., The Supreme Court of India, in Dinubhai Boghabhai Solanki v. State of Gujarat, reported in (2014) 4 SCC 626, observed that when the investigating officer is only collecting material to ascertain whether a prima facie case is made out, the rule of audi alteram partem does not impose an obligation to issue prior notice and hear the accused, as the statute does not expressly recognise such an obligation. The Court noted that the accused has no right to participate in the investigation until a final report under Section 173(2) of the Code of Criminal Procedure is filed, except under certain exceptions. Requiring prior notice and an opportunity of hearing in every criminal case would frustrate proceedings, obstruct prompt action, defeat the ends of justice and render the investigation provisions lifeless and absurd. In the present case, the appellant was not even an accused when the impugned order was passed, although suspicion had been pointed at him by independent witnesses and the victim’s father., The Supreme Court reiterated that the decision to investigate or the decision on the agency which should investigate does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with, and there is no provision in law requiring reasons to be recorded on the face of a notification extending the powers of the Delhi Special Police Establishment. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case, the material on record showed that the investigation by the local police was not satisfactory; the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad, which was pending when the Central Government, with the consent of the State Government, issued the notification directing the Central Bureau of Investigation to further investigate the offences. Under Section 173(8) of the Code of Criminal Procedure, 1973, there is a provision for further investigation after a report under sub‑section (2) has been forwarded to the Magistrate., The Supreme Court observed that the power of the police to conduct further investigation after laying a final report is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the Court has taken cognizance of an offence on the basis of the police report, it is open to the police to conduct further investigation, although it is desirable that the police inform the Court and seek formal permission. The Court held that the power of the Court to direct the police to conduct further investigation cannot be inhibited, and there is no requirement for the Court to hear the accused before such a direction is made, as imposing such an obligation would encumber the Magistrate., The Supreme Court reiterated that the accused has no right to be heard at the stage of investigation; the prosecution must prove its case at trial when the accused will have a full opportunity to rebut the prosecution case. The Court noted that there is nothing in Section 173(8) to suggest that the Court is obliged to hear the accused before directing further investigation, and that imposing such an obligation would burden the Court with the task of searching for all potential accused to be afforded a hearing., The Supreme Court, after reviewing the entire body of case law, concluded that when allegations are levelled against high‑level police officers, it is prudent and advisable to transfer the investigation to an independent agency. The accused persons do not have a say in the appointment of an investigating agency, and the accused cannot choose which agency must investigate the alleged offence., The Supreme Court, in Mohd. Anis v. Union of India, held that a fair and impartial investigation by an independent agency not involved in the controversy is a matter of public interest. If the investigation is conducted by an agency allegedly privy to the dispute, the credibility of the investigation will be doubted, contrary to public interest and the interest of justice. Doubts were expressed regarding the fairness of the investigation where the local police were alleged to be involved in the encounters, and an officer of the Uttar Pradesh cadre might not be impartial., The Supreme Court, in Inder Singh v. State of Punjab, (1994) 6 SCC 275, observed that the petition set out various police stations where seven persons were lodged until 28‑12‑1991, and that there was no denial of this fact. The Court questioned why Station House Officers were not alert to the presence of strangers in their lock‑ups and why no investigation was made into the conduct of the officers in charge. The Court found the assertion that such incidents were deviant behaviour of individual members of the force unconvincing. Consequently, the Court was unwilling to entrust the investigation of the abduction and presumable liquidation of the seven persons to the Punjab Police and was satisfied that an independent investigation at a very high level was called for. The investigation was to cover the circumstances of the abduction, the whereabouts or liquidation of the persons, the delay in registering the complaint, compliance with good police administration, any attempt to cover up misdeeds, and the persons involved therein., The Supreme Court, in Ramlakhan v. State of Madhya Pradesh, by order dated 23‑7‑2019, referred to the definition of investigation given in Manubhai Ratilal Patel v. State of Gujarat, reported in (2013) 1 SCC 314, which states that investigation includes all proceedings under the Code of Criminal Procedure for the collection of evidence conducted by a police officer or any person (other than a Magistrate) authorised by a Magistrate. A three‑Judge Bench in H.N. Rishbud v. State of Delhi outlined the steps of investigation as proceeding to the spot, ascertaining facts and circumstances, discovering and arresting the suspected offender, collecting evidence (including examination of persons and search of places), and forming an opinion as to whether there is a case to place the accused before a Magistrate for trial, followed by filing a charge‑sheet under Section 29., In Adri Dharan Das v. State of West Bengal, the Court opined that...
id_1708	2	Arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. In Niranjan Singh v. State of Uttar Pradesh it has been laid down that investigation is not an inquiry or trial before the court and that is why the legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial. In S.N. Sharma v. Bipen Kumar Tiwari it has been observed that the power of police to investigate is independent of any control by the Magistrate. In State of Bihar v. J.A.C. Saldanha it has been observed that there is a clear‑cut and well‑demarcated sphere of activity in the field of crime detection and crime punishment and further investigation of an offence is the field exclusively reserved for the executive in the Police Department. The Supreme Court of India affirmed this view in Alok Kumar Singh and Others v. Ramlakhan and Others by order dated 7‑2‑2021 in S.L.P. (Criminal) No. 10283 of 2019. The only question for consideration is whether the police have done a free and fair investigation in an impartial manner., In the present case the deceased came to the police station in connection with a dispute with a person named Khemu. A report of Khemu was registered and the deceased was restrained in the police station, Belgada, District Gwalior, without any formal arrest. Ultimately the deceased was found dead in the lock‑up of the police station and the police registered an offence under Section 302 and Section 34 of the Indian Penal Code against five police personnel who were on duty and one Homeguard Sainik. Accordingly, Shri Sanjay Chaturvedi, Sub‑Divisional Officer (Police), Karera, District Shivpuri, who is the investigating officer, was directed to read out all the diary proceedings to determine whether a free and fair investigation is being done in an impartial manner or whether the investigating officer(s) have given undue protection to the suspected accused who are the police personnel., The case diary records that the incident took place at about 18:00 on 10‑8‑2001 and the FIR was lodged on 11‑8‑2019 at 02:25, i.e., the next day. The FIR lodged by complainant Alaf Singh Rawat is illegible in the record and appears to be corrupted, therefore the substantive content of the FIR cannot be ascertained from the present document., From the FIR, the following allegations were made: (i) Khemu and the deceased Suresh Rawat had a dispute and both came to Police Station Belgada to lodge reports against each other; (ii) Police lodged Khemu’s report but did not lodge the deceased’s report and restrained him in the police station; (iii) An amount of Rs 20,000 was demanded for lodging the deceased’s report, otherwise he would not be released; (iv) Mangal Singh, standing outside the police station, heard the noise of beating and requested the police not to beat the deceased, but the police ignored him and the deceased died in the police station; (v) The police personnel Vijay Singh Rajput, Neeraj Prajapati, Vijay, Arun Mishra Diwan, Dharmendra and Sainik Chachha immediately took the deceased to Bhitarwar Hospital on a police vehicle, where he was declared dead; (vi) All the police personnel then fled from Bhitarwar Hospital., On the report of Alaf Singh Rawat, Crime No. 295/2019 was registered in Police Station Bhitarwar, District Gwalior against Vijay Singh Rajput, Neeraj, Vijay, Arun Mishra, Sainik Chachha and Dharmendra for offences under Section 302 and Section 34 of the Indian Penal Code. A Merg intimation under Section 174 of the Code of Criminal Procedure was recorded on 11‑8‑2019 at 12:37, i.e., before the lodging of the FIR., On 10‑8‑2019 the Superintendent of Police, Gwalior wrote a letter to the District Magistrate, Gwalior stating that on 10‑8‑2019 at 11:45 A.M. a crime (No. 81/19) was registered on the report of complainant Khemu for offences under Section 323, Section 294, Section 506 of the Indian Penal Code and under Sections 3(1)(r) and (s) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. The deceased Suresh Rawat also came to the police station. Because of a possible grievous injury to the complainant, the suspect Suresh Rawat was restrained in the police station. The letter further states that sometime between 5 p.m. and 6 p.m. Suresh Rawat committed suicide by hanging himself in the lock‑up, and a request was made for constituting a board to conduct a post‑mortem., Accordingly, on 11‑8‑2019 the District Magistrate, Gwalior requested the Joint Director/Superintendent of Jawaharlal Nehru Hospital, Gwalior to arrange for a post‑mortem by a medical board. The Superintendent of Police, Gwalior, by order dated 11‑8‑2019, directed the Station House Officer, Kampu, District Gwalior, to get the post‑mortem done by a team of doctors., The dead body was sent for post‑mortem on 11‑8‑2019 at 12:05 P.M.; it was received by the hospital and the post‑mortem started at 12:40 P.M. A team of three doctors found the following injuries on the body of the deceased Suresh Rawat: an oblique ante‑mortem ligature mark on the anterior aspect of the neck, two abrasions above the right eyebrow, two linear cut marks below the left elbow, and a pinpoint circular abrasion on the right shin. The opinion was that death was due to asphyxia as a result of hanging. Viscera were preserved for chemical analysis along with clothing and diary, sealed and handed over to the concerned police constable. The duration of death was estimated to be within 24 hours since the post‑mortem examination., Although the post‑mortem report was prepared on 11‑8‑2019, it was sent to Police Station Belgada, District Gwalior only on 16‑8‑2019, as evident from case diary proceeding dated 168‑2019. The reason for the five‑day retention of the report by the medical board is not known., The police case diary records a series of dated entries showing minimal investigative activity. On 11‑8‑2019 the FIR was lodged, copies were sent to the concerned Magistrate and senior police officers, and the dead body was sent for post‑mortem. Subsequent entries on 11‑8‑2019, 13‑8‑2019, 20‑8‑2019, 5‑9‑2019, 9‑9‑2019, 11‑9‑2019, 15‑9‑2019, 22‑9‑2019, 30‑9‑2019, 4‑10‑2019, 6‑10‑2019, 26‑10‑2019, 30‑10‑2019, 31‑10‑2019, 24‑12‑2019, 29‑12‑2019, 30‑12‑2019, 7‑1‑2020, 16‑1‑2020, 12‑1‑2020, 29‑2‑2020, 20‑3‑2020, 21‑3‑2020, 23‑6‑2020, 14‑8‑2020, 7‑10‑2020, 11‑11‑2020, 28‑2‑2021, 2‑2022, 13‑3‑2022, 10‑4‑2022, 26‑4‑2022, 6‑5‑2022, 21‑5‑2022, 4‑7‑2022, 12‑7‑2022, 16‑8‑2022, 2‑9‑2022, 26‑9‑2022, 9‑9‑2022, 12‑10‑2022, 5‑11‑2022, 20‑11‑2022, 22‑11‑2022, 23‑11‑2022, etc. Most entries merely note that the diary was opened, statements were recorded, or that no substantial investigation was carried out, with many periods of inactivity pending the magisterial or judicial enquiry., The distinction between custody and arrest has been clarified by the Supreme Court of India. In Vikram Singh v. State of Punjab (2010) 3 SCC 56 the Court held that Section 46 of the Code of Criminal Procedure deals with formal arrest, whereas Section 27 of the Evidence Act refers to custody of a person accused of an offence, which may exist without a formal arrest. In Dharam Deo Yadav v. State of Uttar Pradesh (2014) 5 SCC 509 the Court observed that custody includes any kind of surveillance, restriction or restraint by the police, even if the accused has not been formally arrested. Accordingly, a person whose movements are restrained or who is kept under police surveillance is deemed to be in police custody., The Supreme Court of India noted that during the arguments the State Counsel was directed to produce the CCTV footage and the CD of the post‑mortem videography. The CCTV footage and the CD were provided only after the investigating officer had left the courtroom. A sealed cloth envelope containing a pen‑drive of the CCTV footage was presented, but the envelope also contained another sealed paper envelope that was not opened. The CD of the post‑mortem was similarly sealed and not opened. Consequently, the Court could not examine the actual footage and had to rely on a script prepared by the police, which was of doubtful authenticity., The script of the CCTV camera installed in the lock‑up indicates that the footage of the deceased being taken to the hospital could not be recorded because of load‑shedding. The magisterial enquiry could not determine whether the electricity was deliberately switched off or there was an actual load‑shedding. The evidence suggests that the electricity was deliberately kept switched off until the deceased was removed from the police station, and that the police personnel manipulated the cameras by switching off the power. Since the Court has not seen the actual CCTV footage, it cannot place reliance on the script, and the possibility that the deceased hanged himself without assistance remains unresolved.
id_1708	3	Whether lockup was opened or it was closed, it is the case of the prosecution that the lockup was open and the deceased had easy access to the same. However, the said fact does not find corroboration from their own documents. Thus, in the presence of the Head Constable Arun Kumar Mishra, Dharmendra handed over charge of the closed lock‑up and closed Malkhana to Constable Neeraj Prajapati. It is clear that the prosecution’s stand that the lock‑up was opened and the deceased went inside on his own is false and baseless. Therefore, it is difficult to accept that the deceased moved inside the lock‑up room on his own, for the simple reason that the spot map shows the lock‑up is clearly visible from the table of the Head Constable, as accepted by Shri Sanjay Chaturvedi, Sub‑Divisional Officer (Police) during the arguments. Further, according to the script, the deceased failed in his first attempt and fell down, but surprisingly no one present inside the police station noticed the same. Sanjay Chaturvedi, Sub‑Divisional Officer (Police), Karera, District Shivpuri., The Supreme Court of India has already reproduced the various steps taken by the investigating officers. Steps taken by Atmaram Sharma, Sub‑Divisional Officer (Police)., It is clear from the police case diary that, except for recording the statements of witnesses, police personnel and suspected police personnel, nothing substantial was done by Atmaram Sharma, Sub‑Divisional Officer (Police). Although the offence under Section 302 of the Indian Penal Code was registered as a custodial death, no attempt was made to arrest the suspected accused persons., Shri G.D. Sharma, Sub‑Divisional Officer (Police) took over the investigation on 29‑02‑2020 and did nothing except wait for the outcome of the report of the Magisterial/Judicial Enquiry. The report of the Magisterial/Judicial Enquiry was received, as mentioned in diary proceedings dated 21‑05‑2022, but even thereafter he only wrote a summary and sought legal opinion from the Deputy Police Officer. It is not out of place to mention that G.D. Sharma filed his status report on 13‑06‑2022, merely stating that the case diary had been sent to the Senior Police Officers for further directions, but he did not take any further action., The Deputy Police Officer gave his opinion on 07‑07‑2022, which was received on 09‑07‑2022, and Shri Sanjay Chaturvedi, Sub‑Divisional Officer (Police) took over the investigation and wrote his first case diary proceedings on 12‑07‑2022, but still did nothing. The case diary was opened on various dates, but nothing was done despite the matter being pending before this Court, and he again sought further legal opinion, which was denied by the Superintendent of Police, Gwalior. Shri Sanjay Chaturvedi, Sub‑Divisional Officer (Police) admitted during the arguments that on the morning of 23‑11‑2022 he received information that this Court had directed production of the case diary along with the investigating officer; consequently, he rushed to Gwalior, added Sections 306 and 342 of the Indian Penal Code and Section 7 of the Prevention of Corruption Act, and sought permission for prosecution. When directed to clarify his position, he submitted that except for pleading for mercy and tendering his apology, he has no explanation for his negligence., Thus, it is clear that all three investigating officers—Atmaram Sharma, G.D. Sharma, and Sanjay Chaturvedi—did everything to screen or protect the offenders., From the above discussion it is clear that although the Gwalior Police camouflaged the situation and projected that the matter was being investigated by a senior police officer of a different district, the Superintendent of Police, Gwalior did not take any steps to restore public confidence. Instead, he deliberately ignored the manner in which the investigation was being conducted. The suspected police personnel were placed under suspension on 10‑08‑2019, and their suspension orders were revoked by order dated 22‑02‑2020. From the case diary it is also clear that Assistant Sub‑Inspector Vijay Singh Rajput retired, and the Superintendent of Police, Gwalior facilitated a respectful departure for him. There is no record of any Departmental Enquiry being instituted against the erring police officers., Under these circumstances, granting retirement with full retiral benefits to Assistant Sub‑Inspector Vijay Singh Rajput without a Departmental Enquiry amounted to a privilege. Had a Departmental Enquiry been pending, he would not have received his entire retiral dues., The Superintendent of Police of a district is required to hold a crime‑control meeting each month to supervise pending investigations, summons, bailable warrants and warrants. The case diary does not contain any indication that the Superintendent of Police, Gwalior gave any direction for early disposal of the investigation., In reply to the question whether any other pending parallel enquiry, including the Magisterial Enquiry, would affect the outcome of the investigation under the Code of Criminal Procedure, counsel for the State submitted that pendency of the Magisterial/Judicial Enquiry will not affect the investigation, which must be conducted in accordance with the Code of Criminal Procedure. Shri Nirankari, Government Advocate also admitted that the police should not have kept the investigation under suspended animation on the ground of pendency of the Magisterial/Judicial Enquiry., Section 173(1) of the Code of Criminal Procedure reads: 'Report of police officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay.', The manner in which the investigation was kept under suspended animation and the silence of the Superintendent of Police, Gwalior, demonstrate a hostile attitude towards the law. Considering the totality of the facts and circumstances, the Supreme Court of India is of the considered opinion that the District Police, Gwalior and the investigating officers have lost the confidence of this Court, as from day one they worked with the sole intention to protect the guilty police personnel. In light of judgments of the Supreme Court, it is clear that the Gwalior police have miserably failed to conduct a free and fair investigation in the case of a custodial death., Accordingly, the investigation of Crime No. 82/2019, registered at Police Station Belgada, District Gwalior for offences under Sections 302, 306, 342, 34 of the Indian Penal Code and Section 7 of the Prevention of Corruption Act is hereby transferred to the Central Bureau of Investigation. The Director, Central Bureau of Investigation is directed to immediately take over the investigation and assign it to a competent investigating officer., The Supreme Court in Alok Kumar Singh and others v. Ramlakhan and others, order dated 07‑02‑2021 in S.L.P. (Criminal) No. 10283/2019 held that the petitioners had no objection to the investigation being handed over to the Central Bureau of Investigation. Counsel for the CBI submitted that the investigation is concluded in two cases and about to conclude in the third. The petitioners argued that even if the High Court found lapses in the investigation, the directions against the petitioners were unwarranted as they were not impleaded as parties, denying them an opportunity of defence, violating natural justice. The High Court’s detailed order noted flaws in the investigation and referred the matter to the CBI. The Supreme Court set aside the High Court’s directions indicting the petitioners and directed that the senior most Additional Director General of Police, State of Madhya Pradesh, shall conduct a preliminary inquiry to fix responsibility for the lapses, to be completed within four months and the report submitted to the State Government and this Court., The Director General of Police, State of Madhya Pradesh is directed as follows: (i) Since Atmaram Sharma, G.D. Sharma and Sanjay Chaturvedi did not investigate the matter with the sole intention to give undue advantage to the erring police officers—Assistant Sub‑Inspector Vijay Singh Bahadur, Head Constable (Male) Arun Kumar Mishra, Constable Dharmendra, Constable Neeraj Prajapati, Constable Vijay Kushwaha and Home Guard Sainik Ehsaan Khan—the Director General shall examine whether their acts are punishable under the Prevention of Corruption Act or the Indian Penal Code for screening or protecting the erring police personnel. If the Director General concludes they are guilty, he shall request the Central Bureau of Investigation to make them accused in the present case; otherwise, he shall give specific reasons. No separate sanction is required for such a request, and it shall be treated as a direction of this Court. (ii) The Director General shall also consider the act of the Superintendent of Police, Gwalior, and collect the minutes of crime‑control meetings from September 2019 to the present to determine whether any direction for early disposal of the investigation was given. (iii) If the Director General concludes that the Superintendent of Police, Gwalior or the three investigating officers were negligent in the discharge of their duties, a Departmental Enquiry shall be initiated against them., The above directions are necessary to maintain public confidence in the criminal justice system. The entire exercise shall be completed within one month from today. The Director General of Police, State of Madhya Pradesh shall submit his final report to the Principal Registrar of this Court no later than 05‑01‑2023., The counsel for the petitioner submitted that police personnel are pressurising them to enter into a compromise. Since the revocation of suspension orders of the erring police personnel shocks the conscience of this Court, the Director General of Police, State of Madhya Pradesh is directed to immediately place the erring police personnel—Head Constable Arun Mishra, Constable Dharmendra, Constable Neeraj Prajapati, Constable Vijay Kushwaha—under suspension, with their headquarters at least 700 km away from Gwalior, so that they may not further manipulate the investigation and evidence. A similar direction is issued to place Home Guard Sainik Ehsaan Khan under suspension. The suspension order shall not be revoked until the trial is completed., If a Departmental Enquiry has not been initiated, the Director General of Police, State of Madhya Pradesh shall immediately initiate it against the erring police personnel and conclude it within six months from today. A similar direction is given to the competent authority to take action against Home Guard Sainik Ehsaan Khan. The Director General shall also clarify the circumstances that prompted the Superintendent of Police, Gwalior to revoke the suspension orders and report whether the revocation was proper., If the Director General concludes that the non‑initiation of a Departmental Enquiry resulted in undue enrichment of the retired erring police personnel, who have received full retiral dues, he shall obtain a bank guarantee from such employees equivalent to the post‑retirement dues so that the amount can be recovered if required., The Departmental Enquiry, if initiated in compliance with this order, shall be treated as having been initiated during the service tenure of the erring police personnel (if retired). As per Rule 9 of the Madhya Pradesh Civil Services (Pension) Rules, four years have not expired. Whether the petitioner is entitled to compensation is addressed below., The Supreme Court in Nilabeti Behera @ Lalita Behera v. State of Orissa, AIR 1993 SC 1960 held that a claim in public law for compensation for contravention of fundamental rights is an acknowledged remedy distinct from private law damages, and sovereign immunity does not apply. The Court emphasized the State’s duty to ensure no infringement of the right to life under Article 21 of the Constitution, and that monetary compensation may be awarded as exemplary damages in public law proceedings under Articles 32 and 226., Since the deceased Suresh Rawat died in the lock‑up while in custody, the respondent State shall pay Rs 20,00,000 (Twenty Lakh Rupees) as compensation, to be disbursed equally among the legal representatives of the deceased., The compensation amount shall be recovered from the erring police personnel as follows: Rs 10,00,000 from Assistant Sub‑Inspector Vijay Bahadur Singh; Rs 5,00,000 from Head Constable (Male) Arun Mishra; Rs 2,00,000 from Constable Neeraj Prajapati; Rs 1,00,000 each from Constables Dharmendra, Vijay Kushwaha and Home Guard Sainik Ehsaan Khan., The compensation shall be paid within one month from today, and the Superintendent of Police, Gwalior shall submit the receipt of the same to the Principal Registrar of this Court no later than 05‑01‑2023. Recovery from the erring officers shall be effected within three months from today, and a report shall be submitted to the Principal Registrar no later than 01‑04‑2023., The petition is allowed with costs of Rs 50,000 to be borne by the investigating officer, which shall not be reimbursed by the State. The cost shall be deposited within one month from today, and the petitioner shall be entitled to withdraw the same., A copy of this order shall be forwarded immediately to the Director, Central Bureau of Investigation, the Director General of Police, State of Madhya Pradesh, and the Superintendent of Police, Gwalior, for necessary information and compliance. The Superintendent of Police, Gwalior shall also communicate this order to the Director General of Police, State of Madhya Pradesh immediately., The reader of this Court is directed to seal the case diary provided by the investigating officer. The Superintendent of Police, Gwalior shall collect the sealed case diary, sealed pen drive of CCTV footage of the police station, and sealed videography of the post‑mortem, and hand them over to the competent authority or investigating officer of the Central Bureau of Investigation.
id_1709	0	Reserved on: 8th August, 2023. Pronounced on: 13th September, 2023. Appellant through: Mr. R. K. Bali, Advocate with Ms. Pragya Verma and Ms. Meghna Bali, Advocates, with appellant in person. Versus Respondent through: Mr. Sahil Malik, Advocate with Mr. Abhishek Kumar, Mr. Jitender, Advocates, with respondent in person., The present appeal under Section 19 of the Family Court Act, 1984 read with Section 96 of the Code of Civil Procedure, 1908 has been filed by the appellant‑wife (respondent in the divorce petition hereinafter referred to as appellant‑wife) challenging the judgment dated 30.07.2018 granting divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, 1955) to the petitioner (hereinafter referred to as respondent husband)., The facts in brief are that the parties got married on 03.12.2003 according to Hindu customs and rites and no child was born from the said wedlock. The respondent husband asserted that their marriage was simple and dowryless. The appellant wife came to reside in the matrimonial home on 04.12.2003 but merely two days after the marriage, she started complaining that she felt suffocated in the joint family which comprised of respondent husband, his parents and brother. She insisted that a separate residence from the family members be set up. She also insisted on taking premises at Mia Wali Peera Garhi, New Delhi where her brother‑in‑law Mr. Devender was residing. The efforts of the respondent husband to dissuade the appellant wife from setting up a separate residence did not meet any success., The respondent husband further claimed that the appellant wife was a lady of arrogant nature and haughty temperament who used to pick quarrels without any justifiable cause or reason. She would frequently go to her parental home as well as to the house of her sister Laxmi, wife of Devender who was residing in Peera Garhi, New Delhi without informing or seeking permission from the family of the respondent husband. On questioning, she retorted and told the respondent husband not to interfere in her personal affairs., The respondent husband has further asserted that the appellant wife neglected the household works and even refused to prepare the food for the respondent husband. She had a non‑cooperative attitude and was most of the times lying on the bed thereby causing humiliation and mental torture to the respondent husband impacting his health. She even refused to show respect to the relatives of the respondent husband visiting the matrimonial home and one such incident happened on 15.05.2004 when she retorted that she was not a servant of the relatives of the respondent husband and thereby insulted the relatives who had visited their home., The respondent husband has further asserted that the appellant wife refused to have physical relationship and always refused his advances by calling him impotent. In February 2004, she became pregnant and was being taken care of by the respondent husband and all medical check‑ups were being done by a qualified doctor at Sanchet Hospital, Paschim Vihar, Delhi. She, however, insisted that she had no desire to have the child and went back to her parental home along with her brother Chander Prakash on 10.07.2004 and took away all her jewellery and clothes. There she took some herbs and suffered abortion on 28.08.2004. She was eventually brought back to the matrimonial home on 29.08.2004. She, however, again went to her parental home on 05.09.2004 where she stayed till 23.06.2005 i.e. for about nine months. It was with the intervention of the relatives and respectable family members that she rejoined the matrimonial home on 23.06.2005. However, she occupied a separate room in the same premises and did not permit the respondent husband to have conjugal relationship. She also threatened that in case the respondent husband touched her, she would commit suicide., On 09.10.2005, her brothers Mr. Krishan and Mr. Karamvir came to the matrimonial home at about 1 p.m. with hockey equipment and assaulted the respondent husband physically, due to which he suffered injuries and was given treatment vide Medical Leave Certificate No. 3504 dated 09.10.2005 at Sanjay Gandhi Hospital, Delhi. However, the police did not register any case against the appellant wife and her brothers. The respondent husband thus claimed that he had been subjected to immense physical and mental cruelty and sought divorce., The appellant wife, on the other hand, denied all the allegations of cruelty made against her. She asserted that they had a lavish wedding and aside from valuable jewellery, household articles, a Santro car was also given. Despite this, she was not treated properly. Her sister‑in‑law (Nanad) Rekha was not satisfied with the clothes given to her for which she was given Rs.5,000. Also, a gold ring was given to the elder brother of the respondent husband on their demand. The respondent husband and his family members were also unhappy with the Santro car as it did not match their status., The appellant wife has further asserted that the respondent husband wanted to set up a factory for which he demanded Rs.30 lakhs which he intended to construct on the plot of land owned by her parents and he demanded a part of land from the parents of the appellant wife. Unfortunately, the Santro car got stolen and thereafter a demand was made for purchase of a bigger car. The appellant wife and her family members, in the hope that a better sense would prevail over the respondent husband, contributed Rs.7 lakhs as was demanded but the atrocities on the appellant wife did not stop., The appellant wife also asserted that her mother‑in‑law gave her some desi medicine with an assurance that a son would be born, but in fact it was intended to abort her pregnancy and immediately thereafter she fell ill and was taken to the hospital where she suffered an abortion. The doctor advised her complete bed rest to recover fully but she was made to do all the domestic chores because of which she developed other problems. On becoming ill, the respondent husband and their family members sent her with her brothers to her parental home with assurance that they would bring her back but failed to do so. It was evident that there was no intention to take her back to the matrimonial home. She ultimately went back to her matrimonial home on 23.06.2005 at about 4 p.m. but was not allowed inside the house and a quarrel followed. The police had to be called and an undertaking was given by the respondent husband to the Station House Officer, Police Station Nangloi that he would not commit any cruelty. Since then, the appellant wife started residing in her matrimonial home despite all odds. It was asserted that she on many occasions was subjected to merciless beatings and abuses., The appellant wife further admitted that a Medical Leave Certificate was prepared on 09.10.2005 but it is asserted that the same was prepared falsely. The appellant wife thus denied all the allegations of cruelty as were made by the respondent husband. On the contrary, it was asserted that it is she who was subjected to cruelty., The Divorce Petition was filed in the year 2007. After the Divorce Petition was filed, the appellant wife got registered an FIR bearing No. 106/2008 under Sections 498A, 406, 34 of the Indian Penal Code at Police Station Nangloi against the respondent husband and his family members though they have been acquitted vide the judgment dated 16.03.2023. The appellant wife had also filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 against the respondent husband but the same was also disposed of on 30.09.2022. A complaint case under Section 156(3) of the Code of Criminal Procedure, 1973 titled Sushila vs. Joginder was filed which is pending adjudication before the Mahila Court, Rohini. Further, a complaint case titled Sushila Devi vs. Sehnoor Khan & Ors. was also filed which is pending trial before the learned Metropolitan Magistrate, Tis Hazari Courts., Also, the father of the respondent husband had filed a complaint case being C.C. No. 513526/2016 titled Satyapal vs. Sushila for having threatened him in which the appellant wife has been convicted under Section 506(II) of the Indian Penal Code vide judgment dated 14.12.2018., The issues in the pleadings were framed on 12.05.2009 as under: (i) Whether the respondent has treated the petitioner with cruelty, after solemnisation of the marriage? (ii) Whether the petitioner is entitled to a decree of divorce on the ground as prayed for? (iii) Relief., The respondent husband appeared as PW‑1 in support of his assertions and also examined two other witnesses i.e. PW‑2 Dr. Suneeta Agarwal and PW‑3 Rakesh Kumar, UDC, SGM Hospital, Mangolpuri to prove the medical records., The appellant wife had appeared as RW‑1 and tendered her evidence by way of affidavit Ex. RW1/1 in support of her case., The learned Judge of the Family Court considered various acts of cruelty, physical abuse and mental torture along with the threats and the criminal cases filed by the appellant wife against the respondent husband and also the long period of separation. It was also observed that there was no co‑habitation between the parties and thus concluded that the respondent husband has successfully proved that he had been subjected to cruelty and thereby granted divorce on the ground of cruelty under Section 13(1)(ia) of the Act, 1955., Aggrieved by the decree of divorce, the appellant wife has preferred the present appeal., Submissions heard., The parties got married on 03.12.2003 but, instead of happiness, their marriage became a bed of rocks from the first day. According to the respondent husband, the appellant wife was a quarrelsome lady who did not show any respect to his visiting relatives and also shirked from doing the household works. She also picked up quarrels on various occasions. Indisputably, on 23.06.2005, a fight ensued and the police was called. The matter was resolved with the intervention of the police with the undertaking being given by the respondent husband that some altercation had taken place between them on some domestic matters and that the said mistakes would not be repeated in future. Both the parties amicably resolved their differences and they did not want any police action and the matter was resolved. Another such incident being of 09.10.2005 when the brothers of the appellant wife had assaulted the respondent husband for which he had taken treatment at Sanjay Gandhi Hospital vide Medical Leave Certificate No. 3504 dated 09.10.2005. This Medical Leave Certificate Ex. PW‑3/1 has also been proved by PW‑2 and the testimony has remained unrebutted. In the Medical Leave Certificate, the history of injury has been given as physical assault and the respondent husband had suffered a contusion on his right eyebrow. No cogent explanation or rebuttal of this incident has been given by the appellant wife., The quarrelsome nature also got manifested during the Family Court proceedings on 19.12.2011 in FIR No. 106/2008 under Section 498A of the Indian Penal Code when the appellant wife had threatened the respondent husband and his family members that she would send him to jail and kill him. This incident has been admitted by the appellant wife in her cross‑examination recorded on 20.11.2012 in the said FIR case., Furthermore, a criminal case under Section 506(II) of the Indian Penal Code was registered against the appellant wife and her family members in which they have been convicted vide judgment dated 14.12.2018. It has been rightly argued that a person who does not shy from threatening and quarrelling with the respondent husband and his family members in the open Court, her conduct as deposed by the appellant wife at the matrimonial home can very well be accepted. These incidents clearly prove that the appellant wife and her family members were quarrelsome and the appellant wife had inflicted physical cruelty upon the respondent husband., The respondent husband had also deposed that the appellant wife would frequently go to her parental home. There is no denial that she went to her parental home on 05.09.2004 and returned only on 23.06.2005. While the respondent husband had claimed that he had made sincere efforts to bring her back, the appellant wife claimed that she had been deserted by the respondent husband and she on her own had returned to the matrimonial home., Significantly, according to the respondent husband, though the parties started residing in the same house they were living as strangers. The appellant wife denied him conjugal relationship and whenever he approached her, she threatened him to commit suicide. Again, there is no serious rebuttal of this testimony of the respondent husband which again reflects that there was breakdown of conjugal relationship which is the bedrock of any matrimonial relationship., It is further not in dispute that after the incident of fight between the respondent husband and the brothers of the appellant wife on 09.10.2005 the appellant wife had been residing in her matrimonial home. It is significant to note that the appellant wife had made various allegations of dowry demand and has even claimed that a sum of Rs.7 lakhs has been paid to the respondent husband and his family members for purchasing a bigger car. Pertinently, no complaint was made by the appellant wife at that time but it was made subsequently after the Divorce Petition was filed in the year 2007 and the FIR under Section 498A of the Indian Penal Code was registered being FIR No. 106/2008 which is much after the parties separated in October 2005. It is no doubt true that every person has a right to seek remedy by resorting to the State machinery and simpliciter filing a complaint under Section 498A of the Indian Penal Code would not amount to cruelty, but it cannot be overlooked that various allegations of cruelty had been made by the appellant wife against the respondent husband which have not been proved by her in the present proceedings. Even in the criminal trial, the respondent husband and his family members have been acquitted. The appellant wife though had claimed that she was subjected to harassment for dowry and to cruelty, but she has not been able to substantiate her assertions. Making such false allegations which she is not able to sustain or prove is clearly an act of cruelty. Though filing of a criminal complaint per se cannot be termed as an act of cruelty yet, at the same time, the allegations of cruelty as made in the criminal cases should have been substantiated in the divorce proceedings., In the case of K. Srinivas vs. K. Sunita X (2014) SLT 126, the Supreme Court held that filing of the false complaint against the husband and his family members constitutes mental cruelty for the purpose of Section 13(1)(ia) of the Act, 1955., Similarly, it has been held by the Supreme Court in Mangayakarasi vs. M. Yuvaraj (2020) 3 SCC 786 that it cannot be doubted that in an appropriate case, the unsubstantiated allegation of dowry demands or such other allegations, made the husband and his family members exposed to criminal litigation. Ultimately, if it is found that such allegations were unwarranted and without basis and if that act of the wife itself forms the basis for the husband to allege the mental cruelty has been inflicted on him, certainly, in such circumstance, if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original Court to allege mental cruelty, it could well be appreciated for the purpose of dissolving the marriage on that ground., Further, the Supreme Court in the case of Ravi Kumar vs. Julmidevi (2010) 4 SCC 476 has categorically held that reckless, false and defamatory allegations against the husband and family members would have an effect of lowering their reputation in the eyes of the society and it amounts to cruelty. Similar observations were made by the Coordinate Bench of this Court in the case of Rita vs. Jai Solanki (2017) SCC OnLine Del 9078 and Nishi vs. Jagdish Ram 233 (2016) DLT 50., The appellant wife has not been able to justify the ground on which these complaints were being made. As discussed in the judgments mentioned above, repeated complaints with unexplained allegations to various agencies cannot be termed as anything but cruelty., The term cruelty as used in Section 13(1)(ia) of the Act, 1955 cannot be defined in given parameters and there cannot be a comprehensive definition of cruelty within which all kinds of cases of cruelty can be covered and each case has to be considered depending upon its own unique factual circumstances. In Gurbux Singh vs. Harminder Kaur (2010) 14 SCC 301, the Hon’ble Apex Court observed that the matrimonial life should be assessed as a whole and persistent ill conduct over a fairly long period of time would amount to cruelty. It was held as under: The ill‑conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party and may no longer amount to mental cruelty., Similarly, in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511, the Apex Court held as under: 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty., We find that in the present case as well, the disputes emanating from disrespect to the respondent husband and his family members, frequent quarrels resulting in various complaints which permeated the entire period while the parties were together even continued thereafter, persisted over a long period of time resulted in mental agony for which there was no solution. Such prolonged differences and criminal complaints made the life of the respondent husband bereft of peace and conjugal relationship which is the bedrock of any matrimonial relationship. Thus, it can be held that this conduct of the appellant wife indisputably amounts to cruelty, as observed by the learned Judge of the Family Court., The appellant wife has further claimed in the appeal for the first time that the respondent husband has got married during the subsistence of their marriage and has two sons. In support thereof, she has placed on record copies of the complaint dated 24.04.2018 made to the Station House Officer, Police Station Sector 23, Dwarka, complaint dated 17.08.2018 made to the Station House Officer, Police Station Kanjhawala and the complaint dated 24.08.2018 addressed to the Chief Metropolitan Magistrate, Rohini Courts under Section 200 of the Code of Criminal Procedure. She has also annexed the affidavits of four witnesses namely Anil, Sachin, Naresh and Mukesh in support of her averments., The first complaint of alleged marriage of the respondent husband to a second woman i.e. Pinki has been made in April 2018 at the time when the Divorce Petition was pending before the learned Judge of the Family Court. No application was filed for leading additional evidence to prove the allegations made in the said complaint. Further, though a copy of the complaint under Section 200 of the Code of Criminal Procedure has been filed but no details have been given if this complaint was ever filed before the Court and what was the fate of the said complaint., Be that as it may, the allegations of the appellant wife are that the respondent husband had got married. However, neither any specific details nor any proof whatsoever of the alleged second marriage has been tendered on record or given in the complaints mentioned above. Even if it is accepted that the respondent husband has started living with another woman and has two sons during the pendency of the Divorce Petition, that in itself cannot be termed as cruelty in the peculiar circumstances of this case when the parties have not been co‑habiting since 2005. After such long years of separation with no possibility of re‑union, the respondent husband may have found his peace and comfort by living with another woman, but that is a subsequent event during the pendency of the Divorce Petition and cannot disentitle the husband from divorce from the wife on the proven grounds of cruelty. Moreover, the consequence of such liaison shall be borne by the respondent husband, the woman and the children. The appellant wife has not been able to prove any other act of cruelty by the respondent husband disentitling the respondent husband from taking divorce., We hereby conclude that the learned Judge of the Family Court has in detail considered all the incidents and has rightly concluded that the appellant wife had subjected the respondent husband to cruelty., We find no merit in the present appeal which is hereby dismissed., The pending applications, if any, also stand disposed of.
id_171	0	Date of decision: 12.02.2024 Through: Mr. Pritam Biswas, Advocate versus ORS. Respondents Through: Mr. Shardul Singh, Ms. Devika Mohan, Ms. Ahish Shahpurkar and Ms. Anjali Tiwari, Advocates for R-3 CRL.M.A.4434/2024 (for exemption). Allowed, subject to all just exceptions. Application stands disposed of. W.P.(CRL) 485/2024 & CRL.M.A.4433/2024 (for interim relief)., The present petition has been preferred by the petitioner under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, challenging the constitutional validity of Section 23 of the Prevention of Cruelty to Animals Act, 1960 (PCA). Petitioner is seeking examination of the provisions of Section 23 of the PCA read with Sections 200 and 482 of the Code of Criminal Procedure and quashing or setting aside Section 23 of the PCA as unconstitutional and ultra vires the Constitution of India., Further, an order, writ and direction against Respondent No. 2 is sought by the petitioner directing them to file a complaint against Respondent Nos. 3 and 4 under provisions of the Indian Penal Code and the Prevention of Cruelty to Animals Act. Petitioner claims to be a practicing advocate as well as an animal lover and wildlife enthusiast. He claims to have filed the present writ petition to advocate and fight for the fundamental rights of animals guaranteed by the Constitution of India., Respondent No. 1 is the Union of India through the Central Zoo Authority; Respondent No. 2 is the Animal Welfare Board of India; Respondent No. 3 is Greens Zoological Rescue and Rehabilitation Centre; Respondent No. 4 is Radhe Krishna Temple Elephant Welfare Trust., Petitioner submits that on 13.01.2024, the newspaper Economic Times published a news report regarding the wedding of Anant Ambani and Radhika Merchant. As per the report and wedding card, the dates of the pre‑wedding and wedding festivities are 01.03.2024 to 03.03.2024 and the venue is Reliance Greens in Jamnagar, Gujarat. Petitioner claims to have come across the invitation on social media platforms and that the wedding is of the non‑executive director, who is the son of the Chairman of Reliance Industries. The respondents Nos. 3 and 4 are situated on the property of Reliance Industries and therefore have indirect control over them. The invitation is evidence that Respondents Nos. 3 and 4 are going to hold functions, parties, events or performances from 01.03.2024 to 03.03.2024, and that the Jamnagar complex has been transformed into a heaven for rescued animals., Petitioner submits that he has a right under Section 200 of the Code of Criminal Procedure to file a complaint and that this right is being curtailed by the provisions of Section 23 of the PCA. Therefore, the provision of Section 23 of the PCA is arbitrary, unjust, oppressive and unconstitutional. In the event that, due to paucity of time, the constitutional validity of Section 23 of the PCA cannot be decided, considering the good prima facie case made out by the petitioner against Respondents Nos. 3 and 4, the petitioner has prayed that Respondent No. 2 be directed to file a complaint under Section 23 of the PCA against Respondents Nos. 3 and 4 because if no person takes action against the acts of Respondents Nos. 3 and 4, they shall go scot‑free and the animals will suffer inhumane treatment and cruelty. If, due to paucity of time, Respondent No. 4 is not able to file the complaint and to stop the events from 01.03.2024 to 03.03.2024, interim relief be granted in the nature of directing Respondents Nos. 3 and 4 not to hold the events by displaying or exhibiting the animals in their possession in any manner whatsoever., Learned counsel for Respondents Nos. 3 and 4, who is appearing on advance notice, has handed over written submissions which are taken on record. It is stated in the written submissions that the present petition is not maintainable for want of any cause of action, assuming that the petitioner would have locus to agitate such cause in this Court, and that the present petition is frivolous and appears to be filed for ulterior motives. All the contents of the present petition have been expressly denied., It is further stated that the petition is based on an unfounded apprehension that Respondents Nos. 3 and 4 would allow use of animals in a private event. It is also stated that animal organisations such as Respondent No. 3, being a recognised zoo, rescue centre and conservation breeding centre under the provisions of the Wildlife (Protection) Act, 1972 read with the Recognition of Zoo Rules, 2009, and Respondent No. 4, being established and administered as an elephant camp meant for housing old, weak, injured and abandoned captive elephants after due approvals from the Chief Wildlife Warden, State of Gujarat, are exempted from the application of the provisions of the PCA., Learned counsel for Respondents Nos. 3 and 4 has relied upon Section 27 of the Prevention of Cruelty to Animals Act which expressly exempts the said respondents from the application of provisions prohibiting exhibition of animals. Section 27 is reproduced as follows: “Exemptions – Nothing contained in this Chapter shall apply to (b) any animals kept in any zoological garden or by any society or association which has for its principal object the exhibition of animals for educational or scientific purposes.”, Learned counsel for Respondents Nos. 3 and 4 submits that the Reliance Complex, Jamnagar, which is owned by Reliance Industries Limited, is spread over 7,500 acres including a 3,059‑acre green belt and consists of a refinery, manufacturing units, production units, office buildings, housing townships for 5,000 employees, orchards, gardens, playgrounds and retail complexes. Respondents Nos. 3 and 4 are situated on 685.14 acres and 998 acres of the complex, respectively. The complex is private property and is not open to the public for events. It is further submitted that a one‑time private, personal and non‑commercial event is being held from 01.03.2024 to 03.03.2024 at various locations in the complex and there is no provision contained in any law, including the Wildlife Act or the Zoo Rules, that prohibits the respondents from inviting guests to view their facilities, especially for non‑commercial purposes., Learned counsel further submits that Respondents Nos. 3 and 4 are managed by experienced veterinarians, curators and biologists and that the respondents strictly comply with all safeguards prescribed by the Zoo Rules for animals, ensuring they are not disturbed, as well as safeguards prescribed for visitors., It is further submitted that a High Powered Committee was constituted under a judgment passed by the Honourable Tripura High Court in the case of Sudipa Nath v. Union, 2022 SCC OnLine Tri 691, inter alia, to examine any complaint relating to any animal organisation and to undertake fact‑finding exercises thereof. Learned counsel has also submitted that the Honourable Supreme Court in the case of Muruly M.S. v. State of Karnataka, 2023 SCC OnLine SC 224, expanded the remit of the High Powered Committee to confer it with a pan‑India status. It is further submitted that, as a precaution, the respondents shall inform the High Powered Committee of the said event with a request to depute their officer or representative to oversee the event., Heard. We find that the present petition has been filed purely on the apprehension that some injury or ill‑treatment may be caused to the animals during the events scheduled on 01.03.2024 to 03.03.2024. Such a petition cannot be entertained simply on the basis of apprehension., Since a High Powered Committee has already been constituted after the directions passed by the Honourable Tripura High Court in the case of Sudipa Nath, the Committee is at liberty to be present and oversee the aforesaid event and to take all cautions permissible under law, if any, to ensure that no inhumane behaviour is caused to the animals., In view of the above, the present petition and pending application are disposed of. It is made clear that either the High Powered Committee may depute any of its members to oversee the event scheduled from 01.03.2024 to 03.03.2024 or the High Powered Committee may go itself to oversee the aforesaid event.
id_1710	0	Iqbal Ahmed Kabir Ahmed, Appellant (original accused No.3) vs. State of Maharashtra, Respondent. Mr. Mihir Desai, Senior Advocate appearing for the appellant, Ms. Kritika Agarwal, Mr. Shahid Nadeem, and Mr. Mohd. Shaikh for the appellant. Mrs. A.S. Pai, Special Public Prosecutor for the respondent-NIA. Mr. V.B. Konde-Deshmukh, Additional Public Prosecutor for the respondent-State., This appeal under section 21 of the National Investigation Agency Act, 2008 (NIA Act) is directed against an order dated 27 May 2019 passed by the learned Special Judge in NIA Special Case No. 3 of 2018, on an application for bail filed by the appellant-original accused No.3, wherein the application for bail was rejected., The appellant has been arraigned as accused No.3 in RC No.03/2016/NIA/MUM registered by the National Investigation Agency for offences punishable under section 120B and section 471 of the Indian Penal Code, sections 13, 16, 18, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA), and sections 4, 5 and 6 of the Explosives Substances Act, 1908. Initially, accused No.3 was arrested by the Anti‑Terrorism Squad, Kalachowki police station on 7 August 2016 in C.R. No.8 of 2016. The charge sheet was filed by the ATS on 7 October 2016. Upon transfer of investigation to the NIA, the crime was re‑registered as RC‑03/2016/NIA/MUM and, after further investigation, a supplementary charge sheet was filed on 17 July 2019., The gravamen of the indictment is that accused No.1, Naserbin Abubaker Yafai (Chaus), was in contact with members of the Islamic State/Islamic State of Iraq and Levant (ISIL), a terrorist organization banned by the Government of India by notification K.A. 534(A) on 16 February 2015. Accused No.1 and accused No.2, Mohd Shahed Khan, procured material to prepare an improvised explosive device (IED). The appellant, accused No.3, was a co‑conspirator with the co‑accused. Pursuant to disclosure made by the co‑accused, the electric switch board on which the IED was soldered in the house of the appellant was discovered, and an oath (baith) owing allegiance to the banned terrorist organization was recovered from the house of accused No.3. Accordingly, the accused have been arraigned for the offences mentioned above., In view of the nature of the accusations, the learned Special Judge rejected the prayer for release on bail. The recovery of the oath from the house of accused No.3, the discovery of the electric switch board used to facilitate bomb preparation, the procurement of a SIM card using false documents, and statements of witnesses recorded during the investigation indicating that the accused, including accused No.3, used to assemble at Mumtaz Nagar, opposite Mohamadiya Masjid, Parbhani, and provoked each other to perpetrate unlawful activities, weighed with the learned Special Judge to reject the bail application. Hence, accused No.3 filed this appeal., An affidavit was filed by Mr. Vikram M. Khalate, Superintendent of Police, Indian Police Service, NIA, on behalf of the NIA, in opposition to the prayer for bail., The appeal was admitted and, with the consent of counsel for the parties, taken up for final disposal. We have heard Mr. Mihir Desai, learned Senior Advocate for the appellant, and Mrs. A.S. Pai, learned Special Public Prosecutor for the respondent-NIA. With the assistance of counsel for the parties, we have perused the material on record, including documents and statements of protected witnesses tendered by the learned Public Prosecutor, which, according to the prosecution, shed light on the role attributed to the appellant/accused No.3 and incriminate him., Mr. Mihir Desai, learned Senior Advocate, urged that the learned Special Judge committed a manifest error in denying the prayer for bail. He contended that the Special Judge failed to properly appreciate the role attributed to accused No.3. Inviting the Court's attention to the charge framed in NIA Special Case No.3 of 2018 on 17 March 2021, Mr. Desai emphasized that accused No.3 has not been charged with offences punishable under the Explosives Substances Act, 1908, nor is it alleged that he was found in possession of any explosive substances. Nothing incriminating has been recovered from accused No.3., Mr. Desai further argued that two circumstances allegedly incriminate accused No.3: (1) the recovery of the oath from his house and the pointing out of the electric switch board where the IED was allegedly soldered; and (2) statements of witnesses that accused No.3 participated in meetings where issues concerning Islam were discussed and possible actions in response to perceived threats to Islam were deliberated. He submitted that these two sets of allegations are not sufficient to bring the acts and conduct of accused No.3 within the dragnet of the UAPA., In any event, having regard to the fact that the petitioner has been in custody for almost five years and that it is very unlikely that the trial in NIA Special Case No.3 of 2018, considering the pendency of cases before the learned Special Judge and the number of witnesses to be examined, would be concluded in a reasonable time, the appellant deserves to be released on bail, lest the constitutional guarantee of right to life and personal liberty be jeopardized, submitted Mr. Desai., Mrs. Pai, learned Special Public Prosecutor, stoutly supported the impugned order. She urged that, in view of the grave nature of the allegations and the material on record which prima facie indicates that the allegations against the accused are true, the learned Special Judge was well within his rights in declining to exercise discretion in favour of accused No.3. Citing statements of witnesses (redacted), Mrs. Pai argued that the offence of criminal conspiracy is prima facie made out, and that the recovery of the oath and the electric switch board where the IED was soldered constitute incriminating material. In the backdrop of such material, the interdict contained in section 43D of the UAPA applies and the accused cannot be released on bail. Since the charge has been framed, there is a prospect of an expeditious conclusion of trial, and the prayer for release on bail on the ground of prolonged incarceration was also opposed., The considerations that normally weigh with the Court in granting or refusing bail in a non‑bailable offence include the nature and seriousness of the offence, the circumstances in which the offences were allegedly committed, the circumstances peculiar to the accused, the nature and character of the evidence pressed against the accused, the possibility of the accused not being secured at trial, reasonable apprehension of witnesses being tampered with, and the larger public interest., Moreover, at the stage of granting bail a detailed examination of material and elaborate documentation of the merits of the case are not required. The Court is, however, expected to give reasons for granting or refusing bail. Such an exercise is markedly different from discussing the merits of the case, as a Court would do at the stage of determination of guilt. The requirement of ascribing reasons becomes more critical where there are statutory restrictions such as section 43D of the UAPA. Section 43D(5) contains an interdict against the grant of bail unless the Public Prosecutor has been given an opportunity to be heard and, after perusal of the case diary or the report under section 173 of the Code of Criminal Procedure, the Court is of the opinion that there are no reasonable grounds for believing that the accusation against such person is prima facie true. Section 43D(6) provides that the restriction in section 43D(5) is in addition to any restriction under the Code or any other law in force on granting bail., We propose to approach the instant case in the backdrop of the aforesaid legal premise., In the context of the charge against the accused of perpetrating unlawful activities, terrorist acts, recruiting persons for terrorist acts and/or being a member of a terrorist gang or organization, the material pressed against the accused primarily consists of statements of witnesses who allegedly were members of the group that assembled opposite Mohamadiya Masjid, Parbhani, and had regular discussions. The statements of four witnesses recorded on 10 August 2016, 16 July 2016 and 17 August 2016 are material (referred to as P‑1 to P‑4)., The witness P‑1 stated that he and his friends, including the accused, used to assemble after dinner in the ground in front of Mohamadiya Masjid, Mumtaz Nagar, and discuss various issues including atrocities on Muslims, Hindu organisations, the beef ban, incidents at Dadri, Muzaffarpur and Gujarat riots, and possible solutions. Some members discussed ISIS. The witness further added that during the discussions he found accused Nos.1 to 4 to be fundamentalist and Jihadi leaning, and that they believed there were atrocities on Islam and should avenge them. The second witness P‑2, recorded on 16 July 2016, gave a similar account but did not label the accused as fundamentalist, merely noting that they spoke of avenging atrocities on Islam. The third witness P‑3, recorded on 10 August 2016, stated that co‑accused Mohd Shahed Khan (accused No.2) spoke about atrocities on Muslims in Syria and the acceptance of the Khilafat of one Abi Bakr Al Baghdadi Al Hussaini Al Quraishi, and that the appellant, Iqbal Ahmed Kabir Ahmed (accused No.3), seconded Khan's view. The fourth witness P‑4 supported the first witness in attributing fundamentalist and Jihadi thoughts to the accused and that they should do something to avenge the incidents of atrocities on Islam., To connect the accused with the offences under UAPA, the prosecution relies upon the disclosure allegedly made on 7 August 2016 by accused No.1, Naserbin Abubaker Yafai (Chaus). The memorandum of disclosure recorded on that date reveals that accused No.1 volunteered to show the place where the circuit to prepare a bomb was prepared and where the oath form was kept. Pursuant to the statement, accused No.1 led the police to the house of the appellant and pointed out the electric board on which the circuit was soldered. The seizure memo records that, at the instance of accused No.1, the appellant produced the oath form (G/1), which was seized along with documents written in Urdu and Arabic (G/2). The Central Forensic Science Laboratory handwriting expert opined that the writing on the oath form (G/1) and the specimen writing (S‑7 to S‑12) of Mohd Raisoddin Siddique (accused No.4) were written by the same person., The third set of material against the appellant consists of statements of witnesses P‑5 to P‑9 to the effect that documents furnished by the fifth witness (P‑5), whose statement was recorded on 21 September 2016, were misused to obtain a SIM card., In light of the aforesaid material, Mrs. Pai, the learned Public Prosecutor, urged that the material is sufficient to hold that there are reasonable grounds to believe that the accusation against the accused is prima facie true. Once such a prima facie finding is recorded, the interdict contained in section 43D(5) of the UAPA comes into play and precludes the Court from releasing the accused on bail., The learned Public Prosecutor placed strong reliance on the Supreme Court judgment in National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1. The Court observed that, by virtue of the proviso to subsection (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true., The Court noted that under special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. There is a degree of difference between the satisfaction required for the UAPA, where the material must be prima facie true, and the higher satisfaction required under those special enactments., Mr. Desai submitted that the pronouncement in Zahoor Ahmad cannot be construed as foreclosing scrutiny of the evidence adduced by the prosecution to determine whether it satisfies the existence of reasonable grounds for the belief that the accusation is prima facie true. He relied on the judgments of this Court in Dhan Singh v. Union of India (Criminal Appeal No. 580 of 2016) and the Supreme Court in Union of India v. K.A. Najeeb and Arup Bhuyan v. State of Assam., In Dhan Singh, a Division Bench of this Court, after referring to section 43D(5) of the UAPA and the Zahoor Ahmad pronouncement, held that when the words 'prima facie' are coupled with 'true', the Court must cross‑check the truthfulness of the allegations on the basis of the material on record. If the Court finds the accusations inherently improbable or wholly unbelievable, it may be difficult to say that a case which is prima facie true has been made out. The Court need not reach a conclusion amounting to acquittal; a mere formation of opinion on the basis of the material is sufficient., It is also pertinent to consider the three‑Judge Bench judgment of the Supreme Court in Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra, which dealt with bail provisions under section 21(4) of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA). Section 21(4) provides that no person accused of an offence punishable under MCOCA shall be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application and the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail., The Supreme Court observed that the presumption of innocence is a human right and that Section 21(4) must be interpreted in light of these principles. While giving the Public Prosecutor an opportunity to oppose bail is a reasonable restriction, the Court need not record a positive finding that the applicant has not committed the offence; rather, it must be satisfied that, in all probability, the applicant may not be ultimately convicted, and that the likelihood of committing an offence while on bail pertains to offences under the Act, not any offence whatsoever., The Court further noted that the requirement to record satisfaction that there are reasonable grounds for believing that the accusation is prima facie true under UAPA is a lighter standard than the requirement under special enactments such as TADA, MCOCA and the NDPS Act, where the Court must be satisfied that the accused is not guilty of the alleged offence., The Supreme Court, while discussing the restrictive provisions in special enactments, reiterated that the degree of satisfaction required for UAPA is lighter than that required under other special statutes. Hence, the interdict under section 43D(5) of UAPA should not be interpreted as imposing a stringent burden equivalent to that under TADA or MCOCA., The three‑Judge Bench in K.A. Najeeb also observed that the charge involved offences punishable under sections 16, 18, 18‑B, 19 and 20 of UAPA, and that the statutory rigour under section 43D(5) of UAPA is comparatively less stringent than the requirement under section 37 of the NDPS Act, which demands that the Court be satisfied that the accused is not guilty and unlikely to commit another offence while on bail., Section 37(1)(b)(ii) of the NDPS Act is pari materia to section 21(4)(b) of MCOCA and enjoins the Court to record satisfaction that there are reasonable grounds for believing that the accused is not guilty of such offences and is not likely to commit any offence while on bail., Having considered the material, the tenor of the statements of the four witnesses, even if taken at face value, indicates that the accused persons and the witnesses discussed threats to Islam, including possible solutions involving ISIS. In the context of accused No.3, the material attributes to him only that he seconded the view of a co‑accused who supported ISIS activities. These statements appear to be limited to discussion and deliberation, and there is no prima facie material indicating that accused No.3 instigated the commission of an offence or advocated violent reactions., In our view, the material concerning the appellant is at most discussion. Mere discussion or advocacy of a particular cause, however unpopular, falls within the protection of Article 19(1)(a) of the Constitution of India. It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) permits restriction. The recovery of the oath form from the house of accused No.3, at the instance of the co‑accused, does not squarely incriminate the appellant, and the contents of the oath form are not in the handwriting of accused No.3.
id_1710	1	We have perused the official translation of the said Vishal Parekar, Petition Application 23/35 form (B/6) (page 79 of the appeal memo) which appears to be a declaration of the acceptance of one Abi Bakr Al Baghdadi Al Hussaini Al Quraishi as the Caliph of the Muslims. The mere possession of such oath form, without subscribing thereto, prima facie, does not appear to be an incriminating circumstance. This takes us to the submission on behalf of the respondent that the fact that an electric switch board in the house of the accused No. 3 was used to solder the material to prepare a bomb leads to no other inference than that of accused No. 3 being a confederate in the conspiracy to commit terrorist acts. Two factors are of critical significance. One, nothing incriminating has been recovered from the possession of the accused No. 3 in the context of the charge of preparing an improvised explosive device. Two, the accused No. 3 has not been charged with the offence punishable under the Explosives Substances Act, 1908. The fact that the co‑accused has pointed to the switch board in the house of the accused, where the material was allegedly soldered, without seizure of any article or material therefrom, prima facie, may not amount to the discovery of a fact which distinctly relates to the said disclosure statement. Nor the said statement can be admitted against the accused No. 3, under Vishal Parekar, Petition Application 24/35 Section 10 of the Evidence Act, as with the arrest of accused No. 1, the conspiracy came to an end. For these reasons, at this juncture, in our view, the alleged discovery cannot be, prima facie, fastened against the appellant., The upshot of the aforesaid consideration is that the material which is pressed into service against the appellant, prima facie, does not appear to be of such quality as to sustain a reasonable belief that the accusation against the appellant is true. In the totality of the circumstances, the bar envisaged by Section 43‑D(5) may not operate with full force and vigor., This leads us to the second limb of the submission on behalf of the appellant based on the long period of incarceration as an under‑trial prisoner. The accused No. 3 was arrested on 7 August 2016. Thus, he has been in custody for more than five years. Charge was framed on 17 March 2021, almost after four years of the arrest. We were informed that the recording of evidence is yet to commence. Mr. Desai submitted that the prosecution proposes to examine more than 150 witnesses. As of 19 April 2021, the learned Special Judge of the National Investigation Agency Court, seized with NIA Case No. 3 of Vishal Parekar, Petition Application 25/35 2018, had 225 cases on his file, including 16 NIA special cases, 43 Maharashtra Control of Organised Crime Act special cases and 64 Sessions Cases., If all these factors are considered in juxtaposition with each other, there is no likelihood of the instant case being decided within a reasonable time in the near future. In contrast, having regard to the number of witnesses which the prosecution proposes to examine to substantiate the indictment against the accused, coupled with the number of NIA and MCOCA special cases which the learned Special Judge is seized with, an inference becomes inescapable that considerable time would be required for the conclusion of the trial in the instant case. Though the learned Public Prosecutor tried her best to persuade us to hold that, as the charge has already been framed, a direction for expeditious conclusion of trial would serve the purpose, the fact that the effective trial is yet to commence dissuades us from acceding to said proposition. It is extremely unlikely that the trial can be completed in the near future., In the aforesaid setting of the matter, the right of the accused to a speedy trial, which flows from the right to life under Article 21 of the Constitution of India, comes to the fore., This right to speedy trial, in prosecutions where the special enactments restrict the powers of the Court to grant bail, faces a competing claim of the interest of society and security of the State. In such prosecutions, if the trials are not concluded expeditiously, the procedure which deprives personal liberty for an inordinate period is then put to the test of fairness and reasonableness envisaged by Article 21 of the Constitution. Where the period of incarceration awaiting adjudication of guilt becomes unduly long, the right to life and the protection of a fair and reasonable procedure envisaged by Article 21 are jeopardized., In the case of Saheen Welfare Association vs. Union of India, the Supreme Court of India considered the conflicting claims of personal liberty emanating from Article 21 and protection of society from terrorist acts, which the Terrorist and Disruptive Activities (Prevention) Act, 1987 professed to achieve. The Supreme Court reconciled the conflicting claims of individual liberty and the interest of the community by issuing directions for release of the under‑trial prisoners who had suffered long incarceration, depending upon the gravity of the charges. The observations of the Supreme Court in paragraphs 9 to 11 and 13 to 14 are material and are extracted below:, The petition thus poses the problem of reconciling conflicting claims of individual liberty versus the right of the community and the nation to safety and protection from terrorism and disruptive activities. While it is essential that innocent people should be protected from terrorists and disruptionists, it is equally necessary that terrorists and disruptionists are speedily tried and punished. In fact the protection to innocent civilians is dependent on such speedy trial and punishment. The conflict is generated on account of the gross delay in the trial of such persons. This delay may contribute to absence of proper evidence at the trial so that the really guilty may have to be ultimately acquitted. It also causes irreparable damage to innocent persons who may have been wrongly accused of the crime and are ultimately acquitted, but who remain in jail for a long period pending trial because of the stringent provisions regarding bail under TADA. They suffer severe hardship and their families may be ruined., Bearing in mind the nature of the crime and the need to protect society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh's case, on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when under‑trials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21., These competing claims can be reconciled by taking a pragmatic approach., For the purpose of grant of bail to TADA detainees, we divide the under‑trials into three classes, namely, (a) hardcore under‑trials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution witnesses in particular; (b) other under‑trials whose overt acts or involvement directly attract Section 3 and/or 4 of the TADA Act; (c) under‑trials who are roped in, not because of any activity directly attracting Section 3 and 4, but by virtue of Section 120B or 147 of the Indian Penal Code; and (d) those under‑trials who were found possessing incriminating articles in notified areas and are booked under Section 5 of TADA., Ordinarily, it is true that the provisions of Sections 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity of the charges. Adopting this approach we are of the opinion that under‑trials falling within group (a) cannot receive liberal treatment. Cases of under‑trials falling in group (b) would have to be dealt with differently; if they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the court concludes that their antecedents are such that releasing them may be harmful to the lives of the complainant, the family members of the complainant, or witnesses. Cases of under‑trials falling in groups (c) and (d) can be dealt with leniently and they can be released if they have been in jail for three years and two years respectively., The aforesaid judgment was referred with approval by the Supreme Court of India in the case of K.A. Najeeb, wherein the Supreme Court, while emphasizing that under‑trials cannot be indefinitely detained pending trial, expounded that once it is found that timely conclusion of trial would not be possible and the accused has suffered incarceration for a significant period of time, the Court would be obligated to enlarge the accused on bail. The observations in paragraphs 15 and 17 are instructive and are extracted below:, This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due process and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Under‑trial Prisoners v. Union of India, it was held that under‑trials cannot be indefinitely detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, courts would ordinarily be obligated to enlarge them on bail., It is thus clear to us that the presence of statutory restrictions like Section 43‑D(5) of the Unlawful Activities (Prevention) Act does not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, courts are expected to appreciate the legislative policy against grant of bail, the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such approach would safeguard against the possibility of provisions like Section 43‑D(5) of the Unlawful Activities (Prevention) Act being used as the sole metric for denial of bail or for wholesale breach of the constitutional right to a speedy trial., The Supreme Court has thus exposited the legal position that the statutory restriction like Section 43‑D(5) of the Unlawful Activities (Prevention) Act does not operate as an impediment on the powers of the constitutional court to grant bail, if a case of infringement of the constitutional guarantee of protection of life and personal liberty is made out, and the rigours of such statutory restriction would melt down in the face of long incarceration of an under‑trial prisoner. In such a situation, the prayer for bail on the count of prolonged delay in conclusion of trial is required to be appreciated in the backdrop of period of incarceration, the prospect of completion of trial in a reasonable time, the gravity of the charge and attendant circumstances., Reverting to the facts of the case, as indicated above, the recording of evidence is yet to commence. By any standard, it is very unlikely that the trial would be concluded in a reasonable period. We have adverted to the nature of the material/evidence which, according to the prosecution, incriminates the accused and our prima facie view thereon. The gravity of the charges against the appellant is required to be considered through the aforesaid prism. In any event, the appellant has already undergone the minimum term of imprisonment prescribed for the offences punishable under Sections 16, 18 and 18B. Undoubtedly, the maximum sentence for these offences may extend to life imprisonment, like the offence punishable under Section 20. The offences punishable under Sections 38 and 39, and 13 entail maximum punishment of ten years and seven years, respectively. Evidently, the appellant has undergone more than half of the maximum punishment prescribed for the offences, other than the offences which entail imprisonment for life. In the latter cases also, the imprisonment can be from five years (where minimum is prescribed) to life., In the aforesaid view of the matter, in our considered opinion, the further incarceration of the appellant, in the face of an extremely unlikely situation of the trial being completed in the near future, would be in negation of the protection of life and personal liberty under Article 21. The denial of bail, in such circumstances, would render the procedure not only unreasonable but unconscionable as well., The upshot of the aforesaid consideration is that the appellant is entitled to be released on bail on merits and on the ground of prolonged incarceration, which infringes his right to life and personal liberty., The appeal stands allowed. The impugned order stands quashed and set aside. The appellant Iqbal Ahmed Kabir Ahmed shall be released on bail upon furnishing a personal bond in the sum of Rupees One Lakh and one or two solvent sureties in the like amount to the satisfaction of the learned Special Judge of the National Investigation Agency Court. The appellant shall report to the NIA, Mumbai Branch twice every week on Tuesday and Friday, between 10 a.m. and 12 noon, for a period of one month from the date of his release. Thereafter, the appellant shall report to the said office every Tuesday between 10 a.m. and 12 noon for the next two months. Thereafter, the appellant shall report to the said office on the first Tuesday of every month between 10 a.m. and 12 noon, till the conclusion of the trial. The appellant shall attend each and every date of the proceeding before the NIA Court. The appellant shall remain within the jurisdiction of the NIA Court, i.e., Greater Mumbai, till the trial is concluded and shall not leave the area without prior permission of the NIA Court. The appellant shall surrender his passport, if any (if not already surrendered). If the appellant does not hold a passport, he shall file an affidavit to that effect before the NIA Court. The appellant shall not, either himself or through any other person, tamper with the prosecution evidence or give threats or inducement to any prosecution witness. The appellant shall not indulge in any activities similar to those on the basis of which the appellant stands prosecuted. The appellant shall not try to establish communication with the co‑accused or any other person involved directly or indirectly in similar activities, through any mode of communication. The appellant shall cooperate in the expeditious disposal of the trial and, in case delay is caused due to him, his bail shall be liable to be cancelled. In the event the appellant violates any of the aforesaid conditions, the relief of bail granted by the Supreme Court of India will be liable to be cancelled. After release of the appellant on bail, he shall file an undertaking within two weeks before the NIA Court stating that he will strictly abide by conditions (iv) to (xii) mentioned hereinabove. By way of abundant caution, it is clarified that the observations made in this judgment and order are limited to the consideration of the question of grant of bail to the appellant and they shall not be construed as an expression of opinion which bears on the merits of the matter at trial. The learned Special Judge shall proceed with the trial against the appellant and the co‑accused uninfluenced by the observations made hereinabove. The appeal accordingly stands disposed of.
id_1711	0	Rajya Sabha Secretariat, New Delhi, February 2024 (Magha 1945 Saka). Presented to the Rajya Sabha on 7 February 2024 and laid on the Table of the Lok Sabha on 7 February 2024. Email: rs-cpers@sansad.nic.in. Website: https://sansad.in/rs (Re‑constituted with effect from 13 September 2023)., Members: Shri Sushil Kumar Modi (Chairman), Shrimati Vandana Chavan, Shri Mahesh Jethmalani, Shri Kanakamedala Ravindra Kumar, Shri Sanjay Raut, Shri Sukhendu Sekhar Ray, Shri K. R. Suresh Reddy, Shrimati Darshana Singh, Shri Vivek K. Tankha, Shri P. Wilson, Shri Manickam Tagore B., Shri Kalyan Banerjee, Shri Pradan Baruah, Shri Venkatesh Netha Borlakunta, Shri Vinod Chavda, Shrimati Veena Devi, Shri Jasbir Singh Gill, Shri Choudhury Mohan Jatua, Shri Raghu Rama Krishna Raju Kanumuru, Shri Jyotirmay Singh Mahato, Shri Malook Nagar, Dr. Ramesh Pokhriyal “Nishank”, Shri Suresh Kumar Pujari, Shri A. Raja, Shri Omprakash Bhupalsingh alias Pavan Rajenimbalkar, Shri Upendra Singh Rawat, Shrimati Sandhya Ray, Shri Kuldeep Rai Sharma, Shri Mahendra Singh Solanky, Shri Rajan Baburao Vichare, Vacant., Committee officers: Shri P. Narayanan, Director; Shrimati Indira Chaturvedi Vaidya, Additional Director; Shri Sunil Tripathi, Under Secretary; Ms. Chinmayee Chakravarty, Assistant Committee Officer I. The Chairman of the Department‑related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, authorized by the Committee to present the Report on its behalf, hereby presents this One Hundred Forty‑Fourth Report on Action Taken on the One Hundred and Thirty‑Third Report of the Committee on “Judicial Processes and their Reforms” pertaining to the Ministry of Law and Justice., The One Hundred and Thirty‑Third Report of the Department‑related Parliamentary Standing Committee on Personnel, Public Grievances and Pensions, Law and Justice was presented to the Rajya Sabha on 7 August 2023 and laid on the Table of the Lok Sabha on 7 August 2023. The Ministry of Personnel, Public Grievances and Pensions furnished its Action Taken replies on 8 November 2023. The Committee considered the draft One Hundred Forty‑Fourth Report and adopted it in its meeting held on 6 February 2024., The observations and recommendations of the Committee have been printed in bold letters in the body of the Report for ease of reference., The Committee made twenty‑two recommendations/observations in its 133rd Report. The Department’s replies have been categorized under four chapters based on the Committee’s satisfaction. Chapter I comprises five recommendations (paras 21, 22, 30, 31 and 32) that have been accepted by the Department. Chapter II includes three recommendations (paras 47, 48 and 68) that the Committee does not wish to pursue further, being satisfied with the Department’s explanations. Chapter III contains twelve recommendations (paras 12, 13, 14, 15, 16, 17, 49, 61, 66, 67, 70 and 71) for which the Committee does not accept the Department’s replies. Chapter IV comprises two recommendations (paras 79 and 82) for which final replies from the Government have not been received., The details of the Action Taken Report have been discussed in the respective chapters in the succeeding pages, with the original paragraph numbers of the 133rd Report mentioned at the end of each recommendation or observation., The Committee notes that the demand for regional benches of the Supreme Court of India is rooted in the fundamental right of access to justice. A long‑standing demand exists to establish regional benches of the highest court to bring justice to the doorstep of common citizens, alleviate the overflowing caseload, and reduce litigation costs. The Delhi‑centric location of the Supreme Court of India creates hurdles for litigants from distant regions, including language barriers, difficulty in finding lawyers, and high costs of travel and accommodation. The Committee continues to recommend the establishment of regional benches, suggesting that the Supreme Court of India may invoke Article 130 of the Constitution to set up benches at four or five locations, with appellate matters dealt at those benches while preserving the Supreme Court’s unity. Action taken: Article 130 provides that the Supreme Court shall sit in Delhi or such other place as the Chief Justice of India may, with the President’s approval, appoint. The matter of regional benches has been referred to the Attorney General on two occasions. The Attorney General’s opinions in 2010 and 2016 held that establishing regional benches is impermissible and would impair the unity and majesty of the Supreme Court. The Supreme Court of India has consistently rejected proposals for benches outside Delhi, and the issue remains sub‑judice., The Committee observes that preparing and publishing an Annual Report is akin to an appraisal of an institution’s work over the past year. Courts, as public institutions, should similarly take stock annually and make the report accessible to the public. The Supreme Court of India already publishes its Annual Report, which includes the work of all High Courts. While some High Courts publish their Annual Reports voluntarily, others need to do so. The Committee recommends that the Department of Justice approach the Supreme Court of India to issue necessary directions to all High Courts to prepare and publish their Annual Reports regularly on their respective websites, with uniform items suggested by the Supreme Court. The Committee appreciated the elaborate Annual Report prepared by the Orissa High Court and suggested that its format be adopted by all High Courts. The Chief Justice of India, the Supreme Court of India, and all Honorable Chief Justices of High Courts were requested on 19 June 2023 to consider uniform publication of Annual Reports in a fixed periodicity and to disseminate them through their websites for public knowledge., The Committee believes that the retirement age of judges should be increased in line with greater longevity and advances in medical science. It recommends amendment of the relevant articles of the Constitution of India to raise the retirement age of Judges of the Supreme Court of India and High Courts appropriately (para 47). Article 124(1) currently provides that a Judge of the Supreme Court shall hold office until the age of 65 years, while Article 217(1) provides that a Judge of a High Court shall hold office until the age of 62 years, and Article 224(3) limits the tenure of Additional or Acting Judges of a High Court to 62 years. The retirement age of High Court Judges was originally 60 years, revised to 62 years effective 5 October 1963 by the Constitution (Fifteenth Amendment) Act, 1963, following the increase in the retirement age of Central Government employees. A resolution to raise the retirement age of High Court Judges was passed by the Chief Justices’ Conference in September 2002, and the Department‑related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice recommended in its 39th Report (29 April 2010) increasing the retirement age of High Court Judges from 62 to 65 to match that of Supreme Court Judges. Earlier, the Constitution (One Hundred and Fourteenth Amendment) Bill, 2010 proposed increasing the retirement age of High Court Judges from 62 to 65 and was referred to the Parliamentary Standing Committee, which recommended its passage. The Bill was discussed in the Lok Sabha on 28 December 2011 but lapsed with the dissolution of the 15th Lok Sabha. The then Chief Justice of India also proposed increasing the retirement age on 21 June 2019, but the Government currently has no proposal to raise the retirement age of Judges, Additional Judges, or Acting Judges of High Courts. Any future requirement will be considered in consultation with stakeholders., The Government’s position is that increasing the retirement age of High Court Judges would create parity with Supreme Court Judges and reduce competition for elevation, but could also lead to fewer vacancies for new appointments, potentially depriving tribunals of retired judges and extending service to non‑deserving cases. It suggests that any increase should be accompanied by measures to ensure transparency and accountability in higher judiciary appointments and to fill existing vacancies. The Government also notes that extending the retirement age may limit regular vacancies for High Court Judges, reducing opportunities for deserving candidates from the feeder channels of Junior Officers and Advocates, and could lead to a chain reaction of increasing retirement ages in other public agencies. While increasing the retirement age, the performance of judges may be reassessed based on health, quality of judgments, and number of judgments delivered, with an appraisal system devised by the Supreme Court Collegium before recommending tenure enhancement (para 48). However, linking performance evaluation to retirement age may not be practical, could empower the Supreme Court Collegium to evaluate judges individually, erode parliamentary powers, create favouritism, and impose additional burdens on limited manpower resources involved in appointments., The Committee notes that pendency in High Courts is enormous, with more than 60 lakh cases pending, and vacancies are also high. As of 31 December 2022, overall vacancies in High Courts stood at 30 % of sanctioned strength, with many courts having 40‑50 % vacancies. As of 1 November 2023, out of a sanctioned strength of 1,114 High Court judges, 782 are working, leaving 332 vacancies. Currently, 114 proposals are at various stages of processing between the Government and the Supreme Court Collegium, and recommendations for the remaining 218 vacancies are pending. Judges of High Courts are appointed under Articles 217 and 224 of the Constitution of India according to the Memorandum of Procedure prepared in 1998 following the Supreme Court judgment of 6 October 1993 (Second Judges case) and the advisory opinion of 28 October 1998 (Third Judges case). The Chief Justice of the concerned High Court initiates proposals to fill vacancies six months before they arise. The Government appoints only those persons recommended by the Supreme Court Collegium. Filling vacancies is a continuous, integrated, collaborative process between the Executive and the Judiciary, requiring consultation and approval from constitutional authorities at both State and Centre levels., The Committee observes that the higher judiciary suffers from a diversity deficit. Representation of Scheduled Castes, Scheduled Tribes, Other Backward Classes, women, and minorities in the higher judiciary is far below desired levels and has been declining. Although there is no statutory reservation for judicial appointments to High Courts or the Supreme Court of India, adequate representation of various sections of Indian society would strengthen public trust, credibility, and acceptability of the judiciary (paras 12‑13). The Supreme Court of India, in its judgment dated 6 October 1993 in Supreme Court Advocates‑on‑Record Association v. Union of India (Second Judges Case), emphasized proper representation of all sections of the people as a relevant factor alongside merit. The Supreme Court Collegium, in a letter dated March 2017, affirmed that merit and integrity shall be the prime criteria for High Court appointments, with due consideration given to women and marginalized sections, and inter‑seniority for judicial officers (para 15). The Committee therefore recommends that both the Supreme Court Collegium and the High Court Collegiums ensure adequate numbers of women and candidates from marginalized sections in their recommendations, and that this provision be clearly incorporated in the Memorandum of Procedure, which is presently being finalised (para 16). The Committee also recommends that the Department of Justice collect social‑status data for all currently serving judges of the Supreme Court of India and High Courts, amending relevant Acts or service rules if necessary (para 17)., Appointment of judges of the Supreme Court of India and High Courts is made under Articles 124, 217 and 224 of the Constitution of India, which do not provide for reservation. In the current collegium system, the responsibility for ensuring social diversity rests primarily with the judiciary. According to the Memorandum of Procedure, proposals for Supreme Court appointments are initiated by the Chief Justice of India, while High Court proposals are initiated by the Chief Justice of the concerned High Court. Names recommended by High Court Collegiums are sent with Government views to the Supreme Court Collegium for advice, and the Government appoints only those recommended. The Memorandum of Procedure is being finalised in consultation with the Supreme Court Collegium following the Supreme Court judgment in WP(C) 13 of 2015 (NJAC matter) and the order dated 16 December 2015. The Supreme Court, in its order dated 4 July 2017 in Suo Motu Contempt Petition (Civil) No. 1 of 2017, highlighted the need to revisit the selection and appointment process to factor in social diversity. The Government has emphasized the need to finalise the Memorandum of Procedure in its communication dated 6 January 2023 to the Chief Justice of India. The proforma for seeking information on recommended judges for elevation to High Courts was revised in July 2017, providing data since 2018. Although caste certificates are not sought at appointment, category‑wise data for judges serving in the Supreme Court of India and High Courts is being obtained without altering service rules. From 31 October 2022 to 8 November 2023, a total of 141 judges were appointed: 81 unreserved, 8 minorities (4 Jain, 2 Christian, 1 Muslim, 1 Zoroastrian), and 22 women., The Government is committed to social diversity in higher judiciary appointments. The Honorable Minister of Law and Justice has requested Chief Justices of High Courts to consider candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities and women when sending proposals. The Committee observes that the Supreme Court’s comments on the draft Memorandum of Procedure are still awaited; once finalised, the Ministry may incorporate social diversity provisions. The Committee also notes that category‑wise data for judges serving in the Supreme Court of India and High Courts is available from 2017, and data for remaining judges has been sought from the judiciary, which should be expedited and forwarded to the Committee., The Committee notes objections to post‑retirement assignments of judges and recommends reassessing such assignments to bodies financed from the public exchequer to ensure impartiality (para 49). Appointments of retired Supreme Court judges to constitutional posts, commissions, tribunals, etc., are made by various ministries according to relevant rules. The Committee suggests a comprehensive study of these appointments. It also emphasizes the need for an efficient judiciary that meets citizens’ needs without resorting to prolonged court vacations. Vacations in courts cause inconvenience to litigants, especially given the huge pendency of cases. While pendency in the Supreme Court has remained static in recent years, the disposal of cases in 2022 exceeded the number of cases instituted.
id_1711	1	Thus it can be seen that as far as the disposal of cases is concerned, the performance of our Supreme Court is quite good. The problem lies with the legacy arrears of about 35,000. From the foregoing discussion it can be seen that vacations in the judiciary are not the only factor for pendency. For reducing pendency there is a need to have a multipronged strategy. However, at the same time, it is an undeniable fact that vacations in the judiciary are a colonial legacy and with the entire courts going on vacation en masse causes deep inconvenience to the litigants., In this scenario, the Committee is of the view that the suggestion of the former Chief Justice of India Shri R. M. Lodha on court vacations, that instead of all the judges going on vacation at one time, individual judges should take their leave at different times through the year so that the courts are constantly open and there are always benches present to hear cases, should be considered by the judiciary., As a part of the recommendations of the 133rd Report, the Parliamentary Standing Committee has endorsed the suggestion of former Chief Justice of India Shri R. M. Lodha on court vacations, who opined that instead of all the judges going on vacation at one time, individual judges should take their leave at different times through the year, so that the courts are constantly open and are always present to hear cases, which should be considered by the judiciary. Since the vacations for the Supreme Court of India and various High Courts are prescribed as per the rules framed by the respective courts for which they have been empowered under the provisions of the Constitution, the recommendations of the Honorable Committee have been sent by the Department of Justice to the Supreme Court of India and the Registrar Generals of the State High Courts after due approval of the Honorable Minister of State (In Charge), Law and Justice. Their response is awaited., Further observation of the Committee: The Department may take up the issue with the Supreme Court of India and the Registrar Generals of the State High Courts to forward their response on the recommendations of the Committee regarding staggered vacation by individual judges at different times of the year, at the earliest, so that the issue of vacation can be settled once and for all. Once this issue is finalized, the courts will have more days at their disposal, which will enable them to reduce the pendency and mitigate the inconvenience presently being faced by the litigants to a large extent., As a general practice, all constitutional functionaries and government servants must file annual returns of their assets and liabilities. The Supreme Court has gone to the extent of holding that the public has a right to know the assets of those standing for elections as Members of Parliament or Members of Legislative Assembly. When so, it belies logic that judges do not need to disclose their assets and liabilities. Anybody holding public office and drawing a salary from the exchequer should mandatorily furnish annual returns of their property., Declaration of assets by the judges of the higher judiciary will only bring more trust and credibility into the system. As the last resolution of the Supreme Court on the declaration of assets by judges on a voluntary basis is not complied with, the Committee recommends the Government to bring about appropriate legislation to make it mandatory for judges of the higher judiciary (Supreme Court and High Courts) to furnish their property returns on an annual basis to the appropriate authority., Based on the recommendations made by the Parliamentary Standing Committee, this Department is proposing to frame rules under the High Court Judges Act, 1954 and Supreme Court Judges Act, 1958 to lay down a procedure for making statutory provisions in the rules for declaration of assets by the judges of the Supreme Court and High Court judges on their initial appointment and thereafter every year by the due date. Consultation with the Registry of the Supreme Court has since been initiated, soliciting their views in the matter. Their response, however, is awaited., Further observation of the Committee: The Department may fast-track the consultation process with the Registry of the Supreme Court for making statutory provisions in the rules for declaration of assets by the judges of the Supreme Court and High Court judges on their initial appointment and apprise the Committee of the same.
id_1712	0	IN THE HIGH COURT OF DELHI AT NEW DELHI\n\nI.A. 7944/2021 in CS(OS) 300/2021\n\nLAKSHMI MURDESHWAR PURI, Plaintiff, Through: Mr. Maninder Singh, Senior Advocate with Ms. Meghna Mishra, Mr. Dheeraj P. Deo, Mr. Tarun Sharma and Mr. Prabhas Bajaj, Advocates versus SAKET GOKHALE, Defendant, Through: Mr. Sarim Naved, Advocate.\n\nCORAM: HONOURABLE MR. JUSTICE C. HARI SHANKAR\n\nJUDGMENT dated 13 July 2021 (Video‑Conferencing) (Interim Application 7944/2021 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908)., Having secured the second rank at the All India Civil Services Examination, the plaintiff joined the Indian Foreign Service in 1974. She served as Ambassador to Hungary as well as Bosnia and Herzegovina. From 1993 to 1999, she was Joint Secretary, Economic Division and Multilateral Economic Relations. In 2002, she joined the United Nations as the Director of the United Nations Conference on Trade and Development (UNCTAD). From 2007 to 2009, she served as Acting Deputy Secretary‑General of UNCTAD. From 2009 to 2011, she was Director of the United Nations Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States in New York. In 2011, she was appointed Assistant Secretary‑General of the United Nations, whereupon she took voluntary retirement from the Indian Foreign Service. She also served as Deputy Executive Director of the United Nations Entity for Gender Equality and the Empowerment of Women (UN WOMEN) from 2011. Prior to her fifteen‑year stint at the United Nations, therefore, the plaintiff served as an Indian diplomat for twenty‑eight years. She demitted public service in February 2018., The plaintiff’s husband was also an Indian Foreign Service officer of the 1974 batch, who served at Ambassador‑level posts from 1999 to 2013. Prior thereto, he worked with the United Nations Development Programme from 1988 to 1991. From 2002 to 2005, he served as the Permanent Representative of India to the United Nations in Geneva and, thereafter, at New York from 2009 to 2013. He also served as Chairman of the Research and Information System for Developing Countries, an autonomous think‑tank under the Ministry of External Affairs, Government of India. He has been a Union Minister under the present Government since September 2017, having won two elections., During her tenure with UNCTAD in Geneva, the plaintiff decided to purchase Apartment No. 4A, Residence Prevert, Chemin des Couleuvres, 1295 Tannay, Switzerland (the Swiss Apartment). The price of the apartment was Swiss Francs 1.6 million. Of this amount, the plaintiff borrowed Swiss Francs 1 million from UBS Bank, Geneva against mortgage of the property, which is still being serviced. Documents evidencing financing by UBS Bank of Swiss Francs 1 million in two tranches of Swiss Francs 500,000 each have been placed on record, disclosing the plaintiff as the borrower. The remaining consideration of Swiss Francs 600,000 was lent to the plaintiff by her daughter (who was a Senior Executive in a bank in New York) in two tranches. Credit advices issued by the plaintiff’s bank evidencing receipt of Swiss Francs 199,334 on 9 December 2004 and Swiss Francs 506,000 on 11 March 2005 from her daughter have been placed on record. The plaintiff’s husband was, at the time, also posted at Geneva (since 2002) as the Ambassador, Permanent Mission of India and, between the plaintiff and her husband, they were earning approximately US dollars 290,000 per annum. Mr. Maninder Singh, learned Senior Counsel for the plaintiff, has taken me painstakingly through these documents and, prima facie, the transactions appear to be perfectly legitimate., On 17 May 2005, the plaintiff wrote to the Joint Secretary, Ministry of External Affairs, intimating the acquisition of the Swiss Apartment in the prescribed pro forma. The purchase price of the property was disclosed as Swiss Francs 1.6 million, and the source of funding was disclosed as Swiss Francs 1 million sourced through bank loans against mortgage of the property and Swiss Francs 600,000 provided by her daughter. The plaintiff’s husband contested elections twice. On each occasion, the requisite affidavit, as required, was tendered by him to the Returning Officer. The affidavits, placed on record by the plaintiff, contain details of the profession and occupation of the plaintiff as well as of her husband, as well as their sources of income. They also disclose the purchase of the Swiss Apartment and its price as Swiss Francs 1.6 million. Under the head of Liabilities, sub‑head Loans from Bank, Financial Institutions and Others (Total), the plaintiff’s husband disclosed the total amount of loans availed by him. Part A (7) A and Part A (7) B, annexures to the affidavits, set out the details of movable and immovable assets of the husband. The Swiss Apartment stands duly disclosed under the head Residential Buildings in the details of immovable assets. The cost of purchase of the said Apartment also stands disclosed under the head Cost of Property (in case of purchase) at the time of purchase as 1.6 million Swiss Francs. In Part A (8) (i), annexure C to the affidavit, the plaintiff’s husband has disclosed, under the head Loans or Dues to Bank/Financial Institution(s), a mortgage loan of Swiss Francs 1,000,000 taken from UBS Bank, Geneva for purchase of an apartment in Geneva owned by Mrs. Lakshmi Puri. An amount of Swiss Francs 115,000 has already been paid off towards principal amount. An amount of Swiss Francs 21,000 is being paid annually to the bank towards interest on the balance loan amount of Swiss Francs 885,000., I have meticulously gone through both the affidavits, along with the annexures thereto, and am, prima facie, satisfied that there has been complete disclosure regarding the purchase of the Swiss Apartment, its value, as well as the loans taken from UBS Bank for the purchase. I am unable to find, prima facie, even a scintilla of impropriety or lack of transparency, either in the purchase of the apartment or in the disclosures made to the statutory authorities, either by the plaintiff or by her husband. I hasten to add, however, that the above prima facie opinion is intended only for the purposes of the present order and the present stay application, and should not be regarded as an encroachment by this Court into the territories properly occupied by the Income Tax authorities, the Election Commission or any other concerned statutory authority., The cause of action for filing the present suit commenced with the following post, posted by the defendant, who professes to be an activist and a virtual‑world vigilante, on 13 June 2021: “Question to @nsitharaman ji: If an ex‑Indian civil servant who’s with the BJP bought an overseas house worth $2 million (with no income other than salary) while in service, will Enforcement Directorate investigate it? I’ll be sharing the details shortly & we Indians want to know if you’ll be impartial.” This, according to Mr. Sarim Naved, learned counsel for the defendant, constituted notice to the Honourable Finance Minister regarding the issue which the defendant desired to highlight. Though the defendant chose, for reasons best known to him, not to name the plaintiff in this tweet, the trail of tweets which followed makes it clear that it was directed against the plaintiff. Indeed, there is no dispute on this score. This was followed by the following tweet posted by the defendant on the same day: “In Indian rupees, that’s over 10 crores. The value today is about 25 crores. Purely and allegedly bought from Govt of India salary. I want to know if @nsitharaman ji will promise an unbiased probe & all papers/documents will be furnished. I’ll share them here soon anyway.” The assertion in the afore‑extracted tweet that the Swiss Apartment was purely and allegedly bought from Government of India salary was clearly incorrect. Either the defendant posted the tweet without doing his homework or the misstatement was deliberate. The assertion by the defendant that he was in possession of all papers/documents relating to the transaction conveys the prima facie impression that the misstatement was deliberate. The impression is fortified by the fact that, though the succeeding tweets make it clear that the Swiss Apartment was bought, not from Government of India salary as alleged, but through loans from the bank, the defendant did not deem it appropriate to enter a word of apology for having posted a clearly incorrect message on his Twitter account against the plaintiff., In his subsequent tweet, posted on 23 June 2021, the defendant chose, for the first time, to name the plaintiff as well as her husband. In a succeeding tweet posted on the same day, the defendant asserted: “In 2006, Amb. Lakshmi Puri was posted on deputation in Geneva at the United Nations Conference on Trade & Development (UNCTAD). She was in the pay band of a Super Time Scale officer with an annual payment of 8.4 lakhs with 1.4 lakhs grade pay. That’s about 10‑12 lakhs.” This tweet is erroneous and misleading on at least three counts: (i) the plaintiff was not posted on deputation with UNCTAD; she had taken leave consequent to having joined the UN posting with UNCTAD and remained on leave from 2002 to 2011, taking voluntary retirement from the Indian Foreign Service in 2011; (ii) the plaintiff was not in an annual pay band of 10‑12 lakhs, but was drawing tax‑free pay from the United Nations in the region of Swiss Francs 250,000 to 300,000 per annum (which, as per the then prevailing exchange rate, works out to Indian rupees 8,41,0825 to 1,00,92,990 per annum); (iii) the defendant sought to convey a misleading impression that the Swiss Apartment had been bought out of the plaintiff’s pay, concealing the availment of a bank loan and the money provided by her daughter for the said purpose., In another tweet of the same date (23 June), the defendant suddenly changed track and acknowledged that the plaintiff had obtained a loan from the bank of Swiss Francs 1,060,000 for purchasing the Swiss Apartment. The tweet then questioned the source of the remaining Swiss Francs 540,000, stating: “So Amb. Lakshmi Puri purchased a house worth Swiss Francs 1.6 million (Rs 12.9 crores) in Switzerland in 2006 while she was a serving Indian Foreign Service officer. Of this Swiss Francs 1.6 million, she took a loan of Swiss Francs 1,060,000. Which means she made a down payment of Swiss Francs 540,000 (Rs 4.3 crores).” Once again, this tweet erroneously alleged that, at the time of purchase, the plaintiff was a serving Indian Foreign Service officer., A series of tweets followed, all predicated on the improbability of a serving Indian Foreign Service officer having the requisite wherewithal to purchase the Swiss Apartment. Mr. Maninder Singh, learned Senior Counsel for the plaintiff, is justified in taking serious exception to a tweet posted later on 23 June 2021: “Last week, there was news about the rising numbers in Swiss bank accounts of Indians. Modi promised to bring back foreign black money. Will @nsitharaman order an Enforcement Directorate enquiry into how @HardeepSPuri & wife got crores in 2006 to buy a Swiss house & into their bank accounts?” Mr. Maninder Singh submits that the entire game plan of the defendant appears, from the beginning, to be to link the plaintiff and her husband with black money stashed in Switzerland and that this constitutes, clearly and prima facie, defamation of the plaintiff., The series of 23 June 2021 tweets of the defendant against the plaintiff proved to be the proverbial last straw on the camel’s back, resulting in the plaintiff responding through her Twitter account: “Get your facts right @SaketGokhale & there is no mystery. I was an International Civil Servant from 2000 to Feb 18. Drew a tax‑free UN salary of over US dollars 200,000 annually when I bought the apartment in Geneva. All facts declared to concerned authorities. Prepare to be sued.” A detailed legal notice was also addressed on the same day by the plaintiff to the defendant. It specifically alleged that the defendant was resorting to fudging and manipulating information related to the sources of income of the plaintiff. The legal notice clarified that the defendant was neither on deputation to UNCTAD nor was her income 10 to 12 lakhs at the time of purchase; she was employed by UNCTAD in her individual professional capacity as Director of its Trade Division from 2002 to 2009 and drew tax‑free salary from the United Nations in Swiss Francs, and later, during her tenure with the United Nations at New York from 2011 to 2018, she was paid tax‑free salary in US dollars. It further pointed out that a loan had been taken from the bank against mortgage for purchase of the Swiss Apartment, which was still being serviced. The defendant was directed to immediately apologise, remove the tweets and undertake not to resort to such slanderous behaviour in future, failing which the legal notice threatened civil and criminal action against the defendant., The legal notice provoked the following response from the defendant: “Is this your idea of a legal notice? It’s embarrassing. Intimidation doesn’t work on me. The notice will be replied to publicly since sunlight is the best disinfectant. Btw Mr. Minister Stay tuned for an exclusive on Pradeep Puri :) Pradeep Puri, incidentally, is the brother of the plaintiff’s husband.”, In these circumstances, the plaintiff has filed the present suit before this Court seeking a mandatory injunction against the defendant to immediately take down/delete the tweets directed against the plaintiff, the URLs of which have been provided in the plaint, as well as all other similar tweets, with a further restraint against the defendant from publishing any further tweets levelling false allegations against the plaintiff or her family members. The plaintiff also seeks an apology from the defendant, along with damages to the tune of five crores, to be deposited in the PM CARES Fund. Interim relief to the said effect has also been sought by way of Interim Application 7944/2021., The submissions of Mr. Maninder Singh, learned Senior Counsel for the plaintiff, have already been captured by the recital hereinbefore. Responding to those submissions, Mr. Sarim Naved, learned counsel for the defendant, submits that the assets of every candidate standing for elections are a matter of public concern and that, therefore, his client was merely provoking public debate over a matter with which, as an activist, he was concerned. He places reliance on the judgments of the Supreme Court in Lok Prahari v. Union of India and Kisan Shankar Kathore v. Arun Dattatray Sawant, particularly paragraph 55 of the former and paragraph 27 of the latter. While acknowledging that, prior to posting the tweets, his client did not seek any clarification either from the plaintiff or from any other statutory authority, Mr. Naved submits that the law does not require him to do so. He accepts candidly that, before posting the tweets, the defendant could have sought clarification from the Finance Ministry, but asserts that this requirement was fulfilled as he had tagged the Honourable Finance Minister in his very first tweet, which, according to Mr. Naved, constituted sufficient notice to the Honourable Finance Minister., Mr. Naved further states that the disclosures and declarations made by the plaintiff and her husband to the Income Tax authorities as well as to the Returning Officer did not disclose the receipt of Swiss Francs 600,000 from the plaintiff’s daughter, though they did disclose the taking of a loan from the bank against mortgage. It was only to highlight this discrepancy, submits Mr. Naved, that his client chose to post the series of tweets. He maintains that his client was actuated purely by public interest, with no personal axe to grind. Mr. Naved also prayed for time to file an affidavit in response to Interim Application 7944/2021 before any orders were passed thereon., Before reserving orders, the Court queried Mr. Naved as to whether his client was willing to take down the tweets directed against the plaintiff. He responded, unhesitatingly, in the negative., It is an unfortunate truism of human nature that we prefer brickbats to bouquets. Criticism always makes for better press than praise, and the more vitriolic the criticism, the better. The exponential fashion in which social‑media platforms have evolved has provided fertile soil for the growth and mushrooming of this unfortunate human tendency. Social media, for all its unquestionable benefits and indispensability in modern times, comes with its own sordid sequelae. The present instance appears to be a case in point., Reputations, nourished and nurtured over years of selfless service and toil, may crumble in an instant; one thoughtless barb is sufficient. The Supreme Court has held that the right to life, consecrated by Article 21 of the Constitution of India, infuses the reputation of the individual. Reputation, it is well settled, precedes the man. In a similar vein, paragraph 18 of the report in Institute of Chartered Accountants of India v. L.K. Ratna observes that, for instance, where a member of a highly respected publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far‑reaching. Not all the King’s horses and all the King’s men can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing and dignity among his fellow members in the profession and guarantees the esteem of his clientele. It is often the carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour., In the age of social media, desecration of the reputation of a public figure has become child’s play. All that is needed is the opening of a social‑media account and the posting of messages on the account. Thousands of responses are received and, in the process, the reputation of the man who is targeted becomes mud. In the present case, Mr. Maninder Singh has pointed out that, till the date of filing of the suit, the tweets posted by the defendant had been liked by more than 26,270 users and retweeted by more than 8,280 users. Forty pages of responding tweets by members of the defendant’s target audience have also been placed on record, with several of the tweets being, to say the least, in very poor taste, containing abuses, allegations and opprobrious epithets against the plaintiff as well as her husband. The damage that the plaintiff and her husband have suffered as a result of the defendant’s tweets is apparent; but that is one of the unavoidable pitfalls of access to social‑media platforms and the way in which they work, by those who abuse their facility, as the defendant has, in the present case, prima facie chosen to do., The two decisions on which Mr. Naved relied do not advance the case of the defendant at all. They merely highlight the importance of transparency with respect to the affairs, financial and otherwise, of those intending to contest elections. There can be no cavil in that regard. As already noted, I have scrutinised the affidavits filed by the plaintiff’s husband while standing for elections and do not, prima facie, find any concealment therein. Mr. Maninder Singh is correct in his submission that there is no column in the affidavits which would require including the details of the finances provided by the plaintiff’s daughter towards purchase of the Swiss Apartment. In any event, given the exhaustive disclosures contained in the affidavits filed by the plaintiff’s husband as well as by the plaintiff herself in her Income Tax returns, it can hardly be said, prima facie, that the plaintiff or her husband were less than candid in declaring not only the purchase of the Swiss Apartment but its value as well as the source from which funds were obtained for the said purpose, so as to justify the tirade launched against them by the defendant., I am unable to accept the submission of Mr. Naved that, before posting messages on a social‑media platform, no due diligence, by way of conducting at least a preliminary enquiry into the facts, is necessary. Such a submission, if accepted, would place the reputation of every citizen in the country in serious jeopardy and open it to ransom at the hands of every social‑media vigilante, some of whose intentions may be less than honourable. This is all the more so in the case of public figures, whose actions are, as a matter of course, subjected to intensive and invasive dissection by all members of the public. Accusative tweets such as those posted by the defendant therefore attract much more adverse and derogatory comment than those against persons who do not live in the public gaze., Mr. Naved sought to submit that, unfortunately, the law did not require a vigilante who sought to post on social‑media platforms messages against public figures to carry out any preliminary verification before doing so. I am unable to accept this submission. Before posting tweets such as those posted by the defendant against the plaintiff, it was incumbent on the defendant to carry out a preliminary due‑diligence exercise. Ideally, in the first instance, clarifications ought to have been sought from the person against whom the messages were intended. If such an exercise was felt to be counter‑productive, enquiries and clarifications have nonetheless to be sought from the available official sources. The defendant’s tagging of the Honourable Finance Minister in his tweets has no sanctity whatsoever in law and is, in any event, woefully inadequate to serve as notice to the Honourable Finance Minister regarding the issues the defendant was choosing to highlight. Such notice could not be by way of an ex post facto exercise having already posted the tweet, thereby closing the stable doors after the horses have bolted. The defendant ought, in the first instance, to have made enquiries with the official authorities, be it the Ministry of Finance or the Election Commission, before choosing to belabour the reputation of the plaintiff through his Twitter account. That he did not choose to do so, despite being aware of the availability of credible sources of information, additionally casts a cloud on his bona fides., Mr. Maninder Singh would contend that the defendant is a pseudo‑activist whose intent is only to blackmail vulnerable persons in public life, such as his client. As this order is being passed at an incipient stage on the stay application and the suit is yet to be tried, I do not wish to express any final opinion on this aspect. I must, however, observe that the Swiss Apartment, having been purchased by the plaintiff in 2005, the facts relating to such purchase having been disclosed by the plaintiff not only to the Ministry of External Affairs but also in her Income Tax returns, as well as by her husband in the affidavit filed by him while contesting elections in 2018 and again in 2020, the bona fides of the series of tweets posted by the defendant starting 13 June 2021 appear to be seriously questionable. The defendant has, at the very least, been economical with the truth, misleading his followers into believing that the plaintiff was on deputation with the United Nations at the relevant time, drawing a salary of rupees 10 to 12 lakhs, and had purchased the Swiss Apartment from this salary. Concealing, studiedly, the fact that the plaintiff had availed a bank loan for paying the price of the flat, the defendant repeatedly questioned the wherewithal of the plaintiff to purchase the flat from her official earnings. Most disturbingly, even after, at a late stage, acknowledging that the price of the Swiss Apartment had been serviced by a mortgage of the property with the bank, the defendant never chose to disabuse his followers of the impression created earlier., Prima facie, the barrage of tweets directed by the defendant against the plaintiff, with a majority of them posted on a single day, 23 June 2021, constrains this Court to observe that the exercise undertaken by the defendant appears to have been actuated by a clear desire to target the plaintiff and her husband for reasons which seem, at the very least, to be recondite. This, however, would be an aspect which would have to be examined during trial and the burden, in the facts of the case, may well be more on the defendant than on the plaintiff., For the purposes of the present order, suffice it to state that, given the number of false representations contained in the defendant’s tweets directed against the plaintiff, despite the defendant being aware of the misrepresentation of the facts, coupled with the continued damage to her reputation which such representations could cause to a person like the plaintiff who is the recipient of such false imputations, this is a case which, in my opinion, requires immediate peremptory orders without awaiting a formal response from the defendant. The loss and prejudice that the plaintiff is likely to suffer as a consequence of the thoughtless tweets of the defendant cannot be compensated in monetary terms., I am unable to accede to the request of Mr. Naved to defer passing of orders in this application till the defendant has had an opportunity to respond by way of a reply. Indeed, given that the defendant did not consider it necessary to extend any such courtesy before vilifying the plaintiff through his Twitter campaign, the request of Mr. Naved is, at the very least, ironic. Despite this, Mr. Naved was heard at considerable length and sought to justify the acts of his client not only on facts but also with reference to judicial precedents already noted hereinbefore., The right of the defendant to respond on affidavit to the allegations contained in the present application cannot be denied. Even while disposing of this application with the directions that follow, the right of the defendant to seek modification or vacation of this order, by following the procedure prescribed in law, shall remain reserved. Any application moved for that purpose shall, needless to say, be decided on its own merits., For the aforementioned reasons, this application is disposed of in the following terms: (i) The defendant is directed to immediately delete, from his Twitter account, all tweets against the plaintiff to which the present plaint makes reference, as well as all connected tweets which may form part of the trail of tweets by the defendant against the plaintiff; (ii) [Further directions to be inserted as per the order].
id_1712	1	The defendant is restrained, pending further orders of the High Court, from posting any defamatory, scandalous or factually incorrect tweet on his Twitter account against the plaintiff or her husband. In the event of the defendant failing to comply with the direction within 24 hours of the pronouncement of this order, Twitter Incorporated is directed to take down the tweets appearing at the following URLs, as well as all tweets which may appear in the trail thereof: https://twitter.com/SaketGokhale/status/1407569553954009088?s=20 https://twitter.com/SaketGokhale/status/1407569556499943424?s=20 https://twitter.com/SaketGokhale/status/1407569558207012865?s=20 https://twitter.com/SaketGokhale/status/1407569562648793090?s=20
id_1713	0	Order Sheet CRMP No. 1189 of 2020 Mohammed Zubair versus State of Chhattisgarh. Hon'ble Shri Justice Sanjay K. Agrawal. 05 October 2020. Proceedings of this matter have been taken up through video conferencing. Mr. Colin Gonsalves, learned Senior Advocate, and Mr. Kishore Narayan, counsel for the petitioner, appeared. Mr. Ravi Bhagat, learned Deputy Government Advocate for the State/respondent No. 1, and Mr. Umesh Sharma, learned counsel for respondent No. 2, also appeared., The petition, being arguable, is admitted for hearing. Notice is issued to the respondents. Mr. Ravi Bhagat, learned State counsel, accepts notice on behalf of respondent No. 1 (State) and Mr. Umesh Sharma, learned counsel, accepts notice on behalf of respondent No. 2. One extra set of the instant petition along with the annexures shall be served to the Office of the Advocate General and another set to the counsel for respondent No. 2 within three days from today. Two weeks' time is granted to the learned counsel for the respondents to file a reply., Interim Application No. 1, application for grant of interim relief, is heard. Mr. Colin Gonsalves, learned Senior Advocate appearing for the petitioner, submits that first FIR No. 194/2020 was registered against the petitioner at Police Station Delhi Special Cell on 9 August 2020 and thereafter, on 4 September 2020, FIR No. 131/2020 was registered against him at Police Station Pandri, Raipur with similar allegations. Such a second FIR with the same set of facts is absolutely impermissible in light of the recent decision rendered by the Supreme Court of India in the matter of Arnab Ranjan Goswami v. Union of India. He further submits that, taking the contents of the FIR as a whole, no offence under Section 509B of the Indian Penal Code, 1860, Section 67 of the Information Technology Act, 2000 and Section 12 of the Protection of Children from Sexual Offences Act, 2012 is made out against the petitioner, in view of the decision of the Supreme Court of India in the matter of State of Haryana v. Bhajan Lal. He also submits that in Writ Petition Criminal Revision No. 12441/2020 arising out of FIR No. 194/2020 registered at Police Station Delhi Special Cell, the Delhi High Court has already granted interim relief in favour of the petitioner directing that no coercive steps shall be taken against him. Considering that a similar allegation FIR has already been filed against the petitioner in Delhi and the criminal writ petition arising out of that FIR is pending before the Delhi High Court, where notices have been issued and interim relief granted, and considering the material on record, the impugned FIR is the second FIR registered against the petitioner with the same set of facts. Accordingly, it is a fit case to grant interim relief in favour of the petitioner. 2020 SCC Online Supreme Court 462; 2 Supplement (1) SCC 335., It is directed that no coercive steps shall be taken against the petitioner till the next date of hearing. Interim Application No. 2, application for grant of exemption, is allowed. Mr. Kishore Narayan, learned counsel for the petitioner, undertakes to file the necessary documents within ten days from today., The matter is listed for further consideration on 5 November 2020. Certified copy, as per rules.
id_1714	0	Petitioner: Sudhir Kumar. Respondent: Union of India and four others. Counsel for petitioner: Krishna Mohan Tripathi, Honourable Ashwani Kumar Mishra, Judge, Honourable Ashutosh Srivastava, Judge. Heard Shri P. K. Singh and Shri Krishna Mohan Tripathi, learned counsel for the petitioner, Shri Gaurav Kumar Chand appearing for respondents numbered one to three, and Shri P. K. Giri, learned Additional Advocate General, assisted by Shri Manoj Kumar Singh, learned Chief Standing Counsel for the State of Uttar Pradesh., Petitioner claims to be a public‑spirited person and social activist. He has approached the Supreme Court of India essentially with the prayer to restrain respondent number five, Al Jazeera Media Network Private Ltd., a news channel based in Doha, Qatar, having presence in India through its Director/CEO, from telecasting, broadcasting or releasing in India the film/documentary titled 'India Who Lit the Fuse' (hereinafter referred to as the Film). Prayers are also made to command respondents one to three, i.e., Union of India, Ministry of Information and Broadcasting and Central Board of Film Certification, to review and certify the Film before its broadcast by the fifth respondent. A prayer is also made to conduct an enquiry into the credentials of the Film and the fifth respondent as it has potential to cause disharmony amongst citizens and threaten the integrity of the Nation. Lastly, it is prayed that appropriate action be taken to ban the fifth respondent., Necessary declarations are made in terms of the Rules of the Supreme Court of India for the writ petition to be entertained in public interest, in accordance with the judgment of the Supreme Court in State of Uttarakhand v. Balwant Singh Chaufal and others, reported in (2010) 3 SCC 402., The writ petition proceeds on the premise that the Film, if released or broadcast, is likely to create hatred amongst different religious denominations and thereby destroy the secular fabric of the Indian State. The Film also has the potential to create social unrest and disturb public order, decency and morality. It is stated that the fifth respondent is well aware that India is a democratic nation built on the guiding principles of secularism, fraternity and dignity for all individuals and that, in case the Film is allowed to be broadcast, it is likely to endanger the fraternity that exists between India's religious communities. Averments are also made that although the fifth respondent is only a news organization, it has exceeded its ambit by broadcasting films and positioning investigations on its news channel with the singular intention of creating distress and endangering public order in the country., As per the petitioner, he has reliably learned from print and social media reports that the Film portrays the Muslim minority as living with a sense of fear and presents a disruptive narrative creating a sense of public hatred, which is far from reality. The petitioner asserts that the Film negatively portrays political functionaries of the Indian State and projects them as acting detrimentally to the interests of minorities. The petitioner states that the Film purposefully seeks to create a rift between India's largest religious communities through its disruptive narrative and create a sense of public hatred. It is also averred that the film proposes to publicise a distorted version of facts with intent to create disharmony amongst citizens of the Country who belong to different religious denominations., The writ petition also questions the credentials of the fifth respondent. It enumerates instances showing that Al Jazeera has acted in a partisan manner in the past and has been banned by several nations. It was banned for five days in 2015 in India for publishing vexatious and misleading information about the political map of India, showing integral parts of India as parts of China and Pakistan. The fifth respondent has also been penalised with the imposition of costs of ten lakhs by the Delhi High Court on 13 February 2023 for divulging the identity of a rape victim., A supplementary affidavit has been filed annexing various Twitter posts commenting upon the Film on its pre‑release preview in some other countries. Some of the comments on record suggest campaigns in several Indian states to demolish the houses and companies of minorities at the instance of the majority community. A series of similar Twitter posts are enclosed as Annexure 2 to the supplementary affidavit., Learned counsel for the petitioner submits that although the Constitution of India guarantees the fundamental right of freedom of speech and expression under Article 19(1)(a), the same is subject to reasonable restrictions specified in Article 19(2). Article 19(2) provides that the freedom of speech and expression shall remain subject to the operation of any existing law, and does not prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right in the interest of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence., The submission is that the Union Parliament has enacted laws to enforce reasonable restrictions contemplated under Article 19(2) of the Constitution of India so as to protect the fundamental right of speech and expression. Reference is made to enactments such as the Cinematograph Act, 1952 (hereinafter referred to as the Act of 1952), the Cable Television Networks (Regulation) Act, 1995 (hereinafter referred to as the Act of 1995), the Information Technology Act, 2000 (hereinafter referred to as the Act of 2000), as well as various other statutory interdicts issued from time to time, including the guidelines for up‑linking and down‑linking of satellite television channels in India, 2022. The Supreme Court of India is also invited to consider Section 69A of the Act of 2000 and Section 19A of the Act of 1995, which vest jurisdiction with the Central Government to prohibit broadcast of any content that has the potential to overreach the reasonable restrictions specified under Article 19(2). It is emphatically submitted that no certificate has yet been obtained by the fifth respondent for broadcast of the Film from the competent authority under the applicable enactments., According to the petitioner, the statutory authorities created under the aforesaid enactments have the responsibility to screen any such content before it is broadcast so that the mischief referred to under Article 19(2) of the Constitution of India is adequately curtailed. With reference to various averments made in the writ petition, it is urged that the broadcast of the aforesaid Film has the potential to create grave damage to public order and social order and, unless the Supreme Court of India interferes in the writ petition and directs the authorities to examine the contents of the Film before its release or broadcast in any form, it may cause irreparable damage to society at large and the Indian State., Sri Gaurav Kumar Chand, appearing for the Union of India and its authorities, does not dispute the legal submissions advanced on behalf of the petitioner. He does not refute the factual assertion made in the writ that necessary certification has not been obtained by the fifth respondent from the competent authority. Shri P. K. Giri, learned Additional Advocate General, also does not dispute the legal position in this regard., We have heard learned counsel for the parties and have examined the records of the present case. The petitioner has made serious allegations in the writ petition that the Film in question is based on distorted facts with a view to disrupt social and communal harmony in the world's largest democracy, which is founded on the principle of just social order. The petitioner also alleges that the fifth respondent is about to release, broadcast or telecast the Film without obtaining the required certificate from the competent statutory authority, with an intent to overreach the constitutional safeguards for placing reasonable restrictions on the right of speech and expression. The apprehension expressed by the petitioner is that the telecast of the Film without adhering to the constitutional and statutory safeguards may result in injuring public order and thereby the sovereignty and integrity of India., From the perusal of the averments contained in the writ petition as well as the constitutional and statutory scheme, the apprehensions expressed in the writ cannot be termed baseless or ill‑founded. Although the Constitution of India guarantees the fundamental right of freedom of speech and expression, the same is subject to the reasonable restrictions specified in Article 19(2). The Constitution and the legislative enactments relied upon contain elaborate safeguards to ensure that reasonable restrictions are applied while exercising the fundamental right of speech and expression. We have examined the provisions contained in the Act of 1952, the Act of 1995, as well as the Act of 2000, together with the rules, regulations and statutory guidelines issued thereunder, which indicate that the telecast or broadcast of the Film would contravene the statutory scheme if the assertions made in the writ petition are found correct. Undisputedly, no certificate has been issued by the third respondent for unrestricted public exhibition under the Act of 1952. Considering the seriousness of the allegations, which are likely to have far‑reaching consequences, the petition requires consideration. We are conscious that the freedom of speech and expression, as well as the right of broadcast, is a fundamental right but remains subject to the reasonable restrictions imposed by Article 19(2). Considering the adverse consequences likely to occur on the telecast or broadcast of the Film, we are of the view that the broadcast or telecast of the Film be deferred pending consideration of the cause in the present petition. No irreparable injury would otherwise be caused to the fifth respondent if the telecast or broadcast of the Film is allowed after the required scrutiny of the issues raised in the present petition., Since the fifth respondent is not represented and the Film is not available for our perusal, we direct the petitioner to take steps within 48 hours to serve the fifth respondent by registered or speed post as well as by hand delivery, fixing 6 July 2023 as the date for admission and hearing of the writ petition. Respondents one to four, who are already represented, may file their reply to the writ petition by the next date fixed. The fifth respondent may also file its response by then., In view of the deliberations and discussions held above, we restrain the fifth respondent from telecasting, broadcasting or releasing the Film 'India Who Lit the Fuse' till the issues raised in the present petition are adjudicated after notice to the fifth respondent. We also direct the Central Government and the authorities constituted under it, particularly respondent number two, to take appropriate measures warranted in law to ensure that the Film is not allowed to be telecast or broadcast unless its contents are examined by the authorities duly constituted in law for the purpose, and necessary certification or authorisation is obtained from the competent authority., The authorities of the Union and State Governments are directed to act in aid of the above directions and thereby secure social harmony and protect the security and interest of the Indian State., The case is listed on 6 July 2023 as fresh, before the Supreme Court of India.
id_1717	0	Balmiki Prasad Chourasia, son of Late Baldeo Prasad Chourasia, resident of Village Jhikatia, Police Station Maheshkhut, District Khagaria, is the appellant. The respondent is the State of Bihar. Appearance for the appellant: Mister Amish Kumar, Amicus Curiae. Appearance for the State: Mister Ajay Mishra, Additional Public Prosecutor. Date: 09-12-2021. The appellant/accused challenges the judgment and order dated 03-07-1995 passed by the learned Additional Sessions Judge, VII, Munger, in Sessions Case No. 562 of 1993, which convicted him of the offence punishable under Section 302 of the Indian Penal Code and sentenced him to life imprisonment., For the sake of convenience, the appellant shall be addressed in his original capacity as an accused., Balmiki Prasad Chourasia is the second appellant in Criminal Appeal No. 240 of 1995 dated 09-12-2021, husband of the late Mira Kumari alias Shakuntala Devi. The couple was residing in a portion of the house of Devansu Prasad Chourasia, situated in the Chhoti Kelabari area under the jurisdiction of Police Station Kotwali, District Munger, which they occupied on rent. The prosecution averred that the accused was a man of short temper and frequently quarreled with his wife Mira Kumari alias Shakuntala Devi., The incident allegedly took place during the night of 13th to 14th August 1993 at the residential house of Mira Kumari alias Shakuntala Devi, which she shared with the accused. The accused started beating Mira Kumari alias Shakuntala Devi at about 08:00 p.m. He then took an axe from the house and struck her neck, causing a bleeding injury. She was taken to Sadar Hospital, Munger, for medical treatment. At about 01:30 a.m. on 14th August 1993, her statement was recorded by Public Witness 8, Sushil Kumar Khanna, Assistant Police Inspector of Police Station Kotwali. The crime was registered at about 01:30 a.m. on 14-08-1993. Mira Kumari alias Shakuntala Devi ultimately succumbed to the injury on the same day., After the death of Mira Kumari alias Shakuntala Devi, Section 302 of the Indian Penal Code was added to the case diary. Inquest notes were prepared after inspecting the dead body, which was then sent for autopsy. Public Witness 6, Doctor H. N. Mandal, Civil Assistant Surgeon, performed the post‑mortem examination., The statements of the witnesses were recorded and, upon completion of the investigation, the accused was charge‑sheeted. The charge for the offence under Section 302 of the Indian Penal Code was framed and explained to the accused, who pleaded not guilty. The prosecution examined nine witnesses. The defence of the accused was a total denial. After hearing the parties, the learned trial court, by the impugned judgment and order, convicted the appellant/accused of the offence punishable under Section 302 of the Indian Penal Code and sentenced him to life imprisonment., We have heard Mister Amish Kumar, learned advocate appointed to represent the appellant at the cost of the State. He argued that the entire case of the prosecution is based on a single piece of evidence, namely the dying declaration of the deceased recorded by Public Witness 8, Sushil Kumar Khanna, Assistant Police Inspector. He contended that the dying declaration is not trustworthy or reliable because it was not recorded after the medical condition of the deceased had been examined by the attending medical officer. The injury was on the neck and the deceased succumbed within a short period, raising doubt as to whether she was in a position to make the statement., The appointed advocate further argued that the evidence of Public Witness 3, Bishwa Nath Mandal, casts serious doubt on the prosecution case, and that other witnesses such as Public Witness 4, Devansu Prasad Chourasia, and Public Witness 5, Deoki Devi, have turned hostile, therefore the appeal deserves to be allowed. The prosecutor, on the other hand, supported the impugned judgment and sentence, contending that the dying declaration shows the complicity of the appellant/accused, and that the deceased was in the company of the appellant at the time of the incident, thus the appeal should be dismissed., We have considered the submissions advanced and have perused the record and proceedings, including oral and documentary evidence adduced by the parties., Upon perusal of the record, we note that the prosecution case rests on the dying declaration of deceased Mira Kumari alias Shakuntala Devi recorded at 01:30 a.m. on 14-08-1993 at Sadar Hospital by Public Witness 8, Sushil Kumar Khanna. Section 32 of the Indian Evidence Act deals with the admissibility of such statements. When a statement is made by a person as to the cause of his death or the circumstances of the transaction that resulted in his death, the statement becomes relevant. Section 32 is an exception to the rule against hearsay and makes admissible the statement of a person who dies, whether the death is homicidal or suicidal, provided the statement is relevant to the cause of death or exhibits circumstances leading to the death. The dying declaration stands on the same footing as any other piece of evidence and must be judged in light of surrounding circumstances and the principles governing the weighing of evidence. It can form the sole basis for conviction if found truthful and reliable. To pass the test of reliability, a dying declaration must be subjected to close scrutiny, keeping in mind that it is made in the absence of the accused, who has no opportunity to cross‑examine the declarant. If the declaration fails to pass the test of reliability and truthfulness, it must be ignored. There is no rule that the dying declaration must be recorded by a particular authority; what matters is whether the declarant was in a position to make a declaration and whether it is truthful and trustworthy., Mister Amish Kumar, the appointed advocate, rightly placed reliance on the Supreme Court judgment in Jayamma and Others versus State of Karnataka, along with Lachma son of Chandyanaika versus State of Karnataka, decided on 07-05-2021 and reported in (2021) 6 SCC 213. The Supreme Court reviewed the case law on appreciation of dying declarations. Relevant paragraphs from the judgment in Sham Shankar Kankaria versus State of Maharashtra reported in (2006) 13 SCC 165 are reproduced, laying down principles such as: there is no rule that a dying declaration cannot be acted upon without corroboration; if the court is satisfied that the declaration is true and voluntary, it can base conviction on it without corroboration; the declaration must be free from tutoring, prompting or imagination; if the declaration is suspicious, it should not be acted upon without corroborative evidence; a declaration made when the deceased was unconscious must be rejected; a declaration suffering from infirmity cannot form the basis of conviction; brevity of a declaration does not render it unreliable; the court may look to medical opinion to ascertain fitness, but eyewitness observation of fitness can outweigh medical opinion; where the prosecution version differs from the dying declaration, the latter cannot be acted upon; when multiple dying declarations exist, the earliest in time is preferred, unless later ones are trustworthy., The fate of the prosecution case hinges on the officially recorded dying declaration of Mira Kumari alias Shakuntala Devi by Public Witness 8, Sushil Kumar Khanna, Assistant Police Sub‑Inspector. He deposed that on receipt of the official diary slip he went to Sadar Hospital and recorded the statement at 01:30 a.m. on 14-08-1993, treating it as the First Information Report and registering the crime. This FIR, attached as Exhibit 3, was elevated to the status of a dying declaration after the death of the deceased., We must examine whether the declarant was in a position to make the declaration and whether it is truthful and trustworthy. The declaration, a full‑page handwritten document, states that Mira Kumari alias Shakuntala Devi was residing with her husband Balmiki Prasad Chourasia in the rented house of Devansu Prasad Chourasia, provides the location of the house, and records that she made the statement at 01:30 a.m. while admitted at Sadar Hospital, in front of Jamadar Saheb of Kotwali Police Station. She detailed the location of her parental and matrimonial houses, stated that her husband used to beat her in an angry mood, that she was beaten at 08:00 p.m., that the husband took an axe and struck her neck, causing injury and bleeding, and that she managed to reach the hospital. She declared that the husband assaulted her with the intention to murder her, and that she understood the statement read to her and placed her thumb impression on it., The question is whether the statement was really made by the deceased, whether it contains a truthful account, whether the declarant was in a position to make it, and whether it can be the sole foundation for conviction. The declaration contains minute and elaborate details not expected from a person in a normal state of mind after suffering a serious neck injury and heavy blood loss. The repeated details of the rented house, parental and matrimonial houses, and the format resemble a mechanically recorded police statement, suggesting that Public Witness 8 may have influenced the declarant. Such recitals raise doubt as to whether the statement is a genuine dying declaration or a description written by the police officer., Deceased Mira Kumari was a rustic villager, and it is unreasonable to expect her to narrate minute details and the intention of the assailant to commit murder. The statement appears artificial and lacks the character of a dying person's declaration., We examine whether the deceased was in a position to make a coherent full‑page statement as claimed by Public Witness 8. The witness did not approach the attending medical officer to ascertain the deceased's fitness, nor did he request a medical examination to determine consciousness, orientation, or the effect of any sedatives. The autopsy surgeon, Public Witness 6, Doctor H. N. Mandal, testified that the injury was very serious and would certainly cause death. The police officer's enthusiasm in obtaining the statement without medical verification casts further doubt on its reliability., Evidence of autopsy surgeon Doctor H. N. Mandal shows that Mira Kumari alias Shakuntala Devi died on the same day, 14-08-1993, and that the post‑mortem examination revealed an incised wound measuring 2 cm by 1 cm, sharp and deep to soft tissues on the right side of the neck, with blood and clots present. The internal examination noted that blood vessels and soft tissues beneath the injury were cut in a circular manner, indicating a serious injury capable of causing death., Because of the neck wound causing deep internal damage and massive blood loss, it is difficult to infer that the deceased was in a fit and conscious state, physically and mentally, to make such an elaborate dying declaration. The prosecution has not adduced expert medical evidence to show that at 01:30 a.m. on 14-08-1993 the deceased was capable of giving a coherent and lengthy statement., The prosecution examined a neighbour, Public Witness 3, Bishwa Nath Mandal, an advocate and Panch witness to the seizure of the body. He stated that the accused was the brother of the deceased, naming the husband as Nanhe Prasad Chourasia, and that he saw the accused visiting the tenanted house, but he did not see the accused at the scene on the day of the incident. He also mentioned that a footwear and blood‑stained earth were seized from the house. Thus his evidence does not place the accused at the scene and does not corroborate the dying declaration., Public Witness 4, Devansu Prasad Chourasia, the landlord, turned hostile, stating that he does not know how his tenant Mira Kumari alias Shakuntala Devi died and that she was not staying with the accused. Public Witness 5, Deoki Devi, wife of the landlord, also did not support the prosecution. No other evidence connects the accused to the crime., It is clear that the dying declaration is the solitary piece of evidence against the accused. While conviction can rest on a solitary dying declaration, it must be trustworthy and reliable. For the reasons stated, we are unable to hold that the dying declaration is reliable, and therefore it cannot be the sole basis for conviction., We note that the learned trial court misread the material evidence and failed to consider the legal position on appreciation of dying declarations. The trial court erred in placing explicit reliance on the dying declaration by reasoning that Public Witness 8 might not have anticipated immediate death and therefore did not seek assistance from a doctor or magistrate, an observation not made by the police officer., In the result, the appeal succeeds. The judgment and order dated 03-07-1995 passed by the learned Additional Sessions Judge, VII, Munger, in Sessions Case No. 562 of 1993, convicting the appellant/accused of the offence punishable under Section 302 of the Indian Penal Code and sentencing him to life imprisonment, is quashed and set aside. The appellant/accused is acquitted of the offence alleged against him. His bail bond stands discharged., We record our appreciation for the strenuous efforts of Mister Amish Kumar, the learned advocate appointed to represent the appellant at the cost of the State, in assisting us to reach the correct conclusion. We quantify the fees payable to him at Rs. 5,000 and direct the High Court Legal Services Authority to pay the said amount to Mister Amish Kumar, the learned appointed advocate.
id_1719	0	Date of decision: 13th September 2023. Appellant through: Ms. Anu Narula, Advocate with appellant in person. Versus Respondent through: Mr. Arvind Chaudhary, Advocate for Late Smt. Rajwanti Malik., An appeal under Section 19 of the Family Courts Act, 1984 has been filed on behalf of the appellant wife against the judgment and decree dated 04 September 2018 granting divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, 1955) on the grounds of cruelty and desertion., The parties were married according to Hindu customs and rites on 06 May 1996 at Arya Samaj Mandir, Sheikh Sarai, New Delhi. The husband, who was in the Indian Army, was posted at different locations. Consequently, the appellant wife, along with the minor daughter born from the said wedlock on 21 December 1998, stayed at the parental home of the husband in Noida. She took up a job when the child was one year old. Towards the end of 2000, she and the child joined the husband at Manipur, but she returned within six months. In 2002, the husband was posted in Uttar Pradesh, where again the appellant and the minor joined him. He was posted in Delhi in 2003, and the appellant again took up a job in Delhi. In 2006, the husband was posted in Jammu and Kashmir and in March 2007 he went on a United Nations Mission to Congo. During this period the appellant and the minor stayed in the matrimonial home at Noida. Since the appellant was working, the minor child was taken care of by the husband's parents to the best of their capacity. However, the appellant was not happy with the parents and was disrespectful and rude towards them., On return from the United Nations Mission in March 2008, the husband took up a house on rent in Saket, close to the parental home of the appellant wife. He also provided the facilities of Sahayaks from the Army to take care of the household chores, but the husband's attitude was nagging and fault‑finding which created an adverse impact on the mind of the appellant., In June 2008 the husband was posted at Kasauli and requested the appellant to join him at his place of posting. She expressed her inability to spare time even for the daughter. The husband claimed that the appellant abandoned his company and never cohabited with him. While the appellant, as per her own wishes, concentrated on Kasauli for two years since April 2009, the daughter was admitted to a boarding school. The daughter studied in Pinegrove School and was later shifted to Chinmaya Vidyalaya, Vasant Vihar, New Delhi., The husband claimed that since his return from the United Nations Mission in March 2008, the relations between him and his wife were estranged on account of the appellant's indifferent attitude. She hardly talked to the husband, which caused deep frustration and depression in his mind. To shift the blame on the husband, the appellant wrote various complaints to the Commanding Officer, Family Welfare Organization and the Army Headquarters making baseless, frivolous and false allegations, blaming the husband for deserting her and the daughter. She claimed maintenance for the child even though the husband was already paying for her education and taking care of her interests. In response to queries by Army authorities, the husband volunteered to pay maintenance for the minor. The appellant, during proceedings for maintenance before the Army authorities, filed affidavits levelling false allegations against him., The husband further asserted that, in order to avoid any amicable resolution of the disputes, the appellant shifted to Pune and withdrew the child from the school in Delhi and got her admitted in a school at Pune so as to cut any contact between the husband and his daughter. The husband thus asserted that he had been deserted by the appellant., On the aspect of cruelty, the husband claimed unilateral cessation of cohabitation since June 2008, making false complaints before Army authorities and also levelling scandalous allegations against him of being involved with a lady who was his childhood classmate, thereby assailing the husband's character. He also filed a frivolous suit for injunction in the District Court, Gurgaon, claiming that he had been thrown out from the matrimonial home. He did not allow the husband to interact with the daughter. His sole motive was to claim privileges and benefits of being a wife of an Army Officer, but he denied and refused to perform his obligations as wife to the husband., The husband thus claimed divorce on the grounds of cruelty and desertion under Section 13(1)(ia) and (ib) of the Act, 1955., The divorce petition was contested by the appellant wife who, in her written statement, asserted that all the allegations pertained to the year 2008 while the divorce petition was filed in the year 2013. She claimed that the petition had been filed after a period of five years and suffered from delay and lapses as there was no explanation for filing the petition after five years., It was asserted that the husband continued with his extramarital relationship with one lady and was trying to take advantage of his own wrong by getting rid of the appellant wife via divorce proceedings. On merits, she denied all the allegations made against her by the husband. She claimed that the husband used to visit her briefly during his annual holidays and leaves but during this period he inflicted physical and mental cruelty upon her. She denied that the husband's mother used to undertake all household chores or did not burden the appellant with the same. The appellant asserted that initially the parents of both parties were against their marriage; however, after the marriage her parents‑in‑law started taunting her for not bringing enough dowry. She lived in the house of her parents‑in‑law at Noida for about ten to twelve days immediately after the marriage, but thereafter the husband went to his place of posting and she shifted to her parental home., The appellant further asserted that the husband failed to take care of her. During her pregnancy, she was hospitalized in the Army Research and Referral Hospital on account of severe jaundice, but neither her husband nor his parents ever offered any care or visited the hospital. The husband failed to give her any emotional support. After the birth of the daughter, the husband and his parents were unhappy with the birth of a girl child. The husband asked her to start working much prior to 1997 as he needed money to buy a house. She therefore took up a job from September 1997 to May 1999 and thereafter from December 1999 till January 2001. Though the husband visited her during his annual leave after a gap of eight to nine months, he did not behave like a husband for many days and would then force himself upon her according to his whims and fancies., The appellant further asserted that the husband used to consume alcohol regularly. She wanted to join the husband at his place of posting, but he always discouraged her. At one point of time, she even expressed a desire to have a second child, but he reacted abusively and violently. He hit her many times for interacting with the neighbours. He behaved cruelly towards her physically as well as emotionally., In the year 2003, on the advice of family members, she sent the minor daughter to the house of her in‑laws for one year so that the appellant and the husband would have some time alone, but the situation did not improve. After one year, the daughter was brought back to R.K. Puram, Delhi where the parties had been living together. She admitted that while the husband was on United Nations Mission in Congo, she remained with her in‑laws but it is claimed that they poisoned the ears of the husband against her and directed him to harass the appellant. They continued to force her to leave her job and to work in the house as a servant. They would not let her engage a maid for doing the household work. Since she was earning, she did not take any money from the husband and bore all the expenses of herself and the daughter. Parents of the husband demanded money and she transferred Rs 8,000 per month into the account of the mother‑in‑law. Four months later, they asked her to pay the money in cash as they did not want any documentary proof. In May 2008 she had to leave her in‑laws’ place as the husband himself asked her to shift to her parental home. They took the first floor of the house of the parents of the appellant on rent from them. Admittedly, the husband arranged for Army jawans from the unit to help her, but it is denied that the husband provided all the facilities including Sahayaks from the Army., The appellant denied that she was ever asked to join the husband at Kasauli. It is claimed that he never applied for family accommodation despite her repeated requests. On the other hand, whenever she along with the daughter visited Kasauli to meet him, he would go out for long walks alone leaving the appellant and the child behind., It was further claimed by the appellant that the husband maintained an active social life with his classmates, both male and female, while the appellant was never taken out. She caught the husband exchanging obscene and intimate messages with his female friends. When she confronted him, he claimed that there was nothing between them. Whenever he visited Delhi on vacations, he kept messaging on phone and went on long walks alone. He came to her in the evenings only to sleep and at times forced himself upon the appellant., The appellant has further asserted that the husband was having an illicit relationship with one person identified as R (name not disclosed). He spent a night with R in Chandigarh on 17 September 2010. They travelled together from Chandigarh to Delhi by train. On 06 September 2010 he told the appellant that he was going to Army Headquarters, when in fact he had gone to pick up R from Gurgaon and they together watched a movie. He spent time with R on 7–8 September 2010. On 23 September 2010 he came by flight and spent a night at Subhash Nagar where R’s mother stays alone. On 28–29 September 2010 he went to Kathmandu with R. It was claimed that their daughter Sejal had asked the husband to plan a trip to Goa, but he refused and instead on the night of 27 September 2010 he was planning to go river rafting with his friends. On 29 September 2010, he informed the appellant’s mother that he was going to Amritsar with his friends, when in fact he went to Subhash Nagar to pick R’s mother and they all went to Amritsar in the Shatabadi Express, where R also joined them. On 04 November 2010, she caught the husband red‑handed in an extramarital relationship with R. It is further claimed that since 24 November 2010 the husband had been pestering her for divorce., The appellant denied that she did not allow the husband to meet the daughter during his visits to Delhi or found excuses not to let her speak to the husband on telephone. It was also denied that she had obtained ... She further denied that the husband was not aware of her shifting to Pune. It was claimed that she had to shift to Pune in June 2012 in order to get a better job since the husband had withdrawn financial support completely. The appellant thus denied that she had treated the husband with cruelty or that she had ever deserted him. It was claimed that the divorce petition was liable to be dismissed., The reframed issues vide order dated 21 August 2018 are as follows: (1) Whether the husband after solemnisation of the marriage has treated the petitioner with cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act? (Opposition) (2) Whether the husband has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition within the meaning of Section 13(1)(ib) of the Hindu Marriage Act? (Opposition) (3) Whether the petitioner is entitled to decree of divorce, as prayed for? (Opposition) (4) Relief., The respondent examined six witnesses while the appellant examined two witnesses in support of their respective cases., The learned Principal Judge, Family Court considered the entire evidence in detail and held that the appellant had treated the appellant with cruelty and had withdrawn from the company of the husband and deserted him. Consequently, divorce was granted under Section 13(1)(ia) and (ib) of the Act, 1955 on the grounds of cruelty and desertion., Being aggrieved, the present appeal has been preferred., Submissions were heard. Essentially the case of the husband was that, being an Army Officer, he was posted at different places, but the appellant never displayed any inclination to join him at his place of work. It is not disputed or denied that the appellant from time to time was working and, on account of her job, such disinclination can neither be termed as an act of cruelty nor an act of desertion. From the comprehensive evidence of the parties and the witnesses examined by them, it is evident that while the husband was at his place of posting, either he used to join the appellant at her place of residence or, at times, the appellant used to visit him as and when convenient. It is admitted that immediately after the marriage, the appellant had gone to the matrimonial home and stayed with the parents of the husband, though subsequently she went to live with her parents. It is also not disputed that after the husband returned from the United Nations Mission in 2007, they had taken the first floor of the house of the parents of the appellant in Saket on rent and had stayed there together. What can be concluded from their respective evidence is that because of job compulsions of the appellant and the postings of the husband to different places in the Army, the parties had worked out an arrangement of spending whatever time they could together, but it cannot be said that there was any incident which could be termed either as cruelty or as desertion., The appellant claimed that the husband had no intention of being in a matrimonial relationship with her, for which reason he purposely chose not to apply for family accommodation while he was posted in Kasauli. However, it is admitted that the daughter, during the said period, was put in a hostel in Kasauli, where she remained for about two years. During this period the appellant often visited the husband and the daughter. This is reflected from the testimony of the appellant herself that whenever she visited Kasauli, the husband was withdrawn and would go alone for long walks. The very fact that the daughter was admitted in a boarding school clearly shows that family accommodation was not taken as the appellant was not able to join him in Kasauli, seemingly because of her job, and jointly a decision was taken to put the child in the boarding school. It is evident that the appellant herself preferred to stay back and not join the husband at his place of posting in Kasauli. The learned Principal Judge thus rightly concluded that non‑taking of family accommodation at Kasauli was not attributable to the husband with ulterior motive of deserting the appellant, as was claimed by her., The appellant asserted that the husband was in the habit of consuming alcohol daily. Merely because a person consumes alcohol daily does not make him an alcoholic nor does it add up to a bad character especially when there is no other incident asserted to have happened on account of consumption of alcohol by the husband., The appellant further asserted that the husband used to be withdrawn whenever she visited him and would always remain busy on phone with his friends, both male and female. A person who is essentially living alone may find solace by having friends and merely because he used to talk to his friends, it can neither be held to be an act of ignoring the appellant nor a cruel act. It has to be appreciated that both parties, having been essentially living separately because of their work exigencies, were bound to make friends at their place of work and otherwise; and such friendships without anything more cannot be termed as cruelty., It has been asserted by the appellant that the husband developed special affection and an illicit relationship with one R with whom he spent a night in Chandigarh on 17 September 2010 and he also travelled with her from Chandigarh by train. It was deposed that on 06 September 2010 the husband told her that he was going to the Army Headquarters, but he went to Gurgaon and watched a movie with R. Likewise, on 7–8 September 2010 he spent time with R. On 23 September 2010 he came by flight and again spent a night at Subhash Nagar where R’s mother stays alone. He had denied the request of the daughter on the night of 27 September 2010 to take her to Goa as he had planned to go for river rafting with his friends. On 28–29 September 2010 the husband went with her to Kathmandu. On 29 September 2010 the husband informed the appellant’s mother that he was going to Amritsar with friends, when in fact he travelled to Amritsar with the mother of R and R also joined him there. The appellant thus asserted that there was an illicit relationship between the husband and R., To corroborate this further, she deposed that she had caught the husband red‑handed with R at the Subhash Nagar house on 04 November 2010 and had video‑graphed the entire incident with the help of her daughter. The husband explained that R was his school‑time friend and during the relevant period was working in Gurgaon, married and had two children. Though, during the trial the request of the appellant to place on record the Facebook chats of the husband with R was declined, those Facebook chats were submitted during the inquiry before the Army authorities and were marked as Mark B. The husband admitted these chats during the inquiry before the Army authorities and admitted that he had briefly maintained intimate relations with R from September to November 2010. The CD, which is Ex.RW1/2, was recorded by the daughter of the parties on her mobile phone on 04 November 2010 when the husband was present at the Subhash Nagar house of R’s mother. In the said video recording, the husband admitted his involvement with R. This entire evidence was considered by the Army authorities and they surprisingly concluded that this evidence did not establish any adulterous relationship, but was merely a brief encounter between the husband and his ex‑school mate., The learned Principal Judge, Family Court from this evidence concluded that this brief liaison between the petitioner and R cannot qualify to brand the petitioner with philandering character. It definitely is an act which challenges the relationship between the petitioner and the husband as a couple; however, being a one‑off episode, it may not be very significant or important enough to change the contours of the present case. Furthermore, the appellant during her cross‑examination had stated that despite such conduct of the husband of being an alleged drunkard, chain smoker and having been involved with R, she was prepared to live with him. She thus acquiesced to this brief escapade of the husband and the appellant cannot claim advantage under Section 23(1)(a) of the Act, 1955 as it cannot be held that the husband is taking advantage of his own wrong., Though the evidence on record establishes that the husband had an intimate relationship with R for a short period between September and November 2010, it has been rightly concluded by the learned Principal Judge, Family Courts that it was an act which was condoned by the appellant who, despite this episode, expressed her willingness to continue to reside with the husband. Once an act which lasted for a short while had been condoned, it cannot be taken as an act of cruelty while deciding the petition for divorce. The situation could have been different had it been a turning point in the relations between the parties which otherwise also were not too platonic., The brief intimate relationship did create some turbulence in the lives of the husband and the appellant, but they both were able to sail over it, which is also evident from various letters written by the appellant herself to the Army authorities. In her letter dated 24 October 2011 (Ex.PW6/A) she stated that on account of certain marital issues, Satender had a difference of opinion which has consequently led to Satender displaying an indifferent attitude towards their daughter and her. She made numerous attempts to restore the situation, however, his indifference increased in the intervening period. She further requested the authorities to intervene and get her husband to see reason in terms of resolving the not‑so‑intractable issues. A similar tone was observed in her letter dated 01 November 2011 (Ex.PW6/B) written to the Family Welfare Organization of the Army, where she asserted that on account of certain differences that have cropped up between them in regard to the matrimonial life, he did not care to make any suitable arrangement for her and she was compelled to stay with her parents. She also stated that she had made numerous efforts to restore the situation, but he was not forthcoming and all her endeavours to get in touch with him had failed. She wrote to the Commandant, CDS Bhalra, where Colonel Satender (the husband) was posted, to apprise him of the situation and requested him to facilitate restoration of the dependent facilities for herself and the daughter., It is also significant to refer to the affidavit dated 21 January 2012 (Ex.PW6/E) submitted by the appellant along with her letter dated 15 January 2012 (Ex.PW6/D) seeking maintenance under the Army Act for the daughter, wherein she stated that her husband has been neglecting her and the child and has not been staying with her since July 2011 and is refusing to maintain the daughter. The husband also gave a statement dated 25 April 2012 (Ex.PW6/G) to Commandant Bhalra, wherein he affirmed that there has been a difference of opinion between him and his wife on the ground that his wife was not keen to join him at family stations. She was a working woman and was not inclined to join him, claiming professional commitments. He further stated that he had even given her an option to stay in Udhampur, where he was willing to provide SF accommodation, but she insisted on staying in Delhi on her own terms and that she voluntarily decided to stay with her parents and not with her in‑laws or in separate accommodations. Her decision to stay independently was not taken mutually., From these various letters, which followed the incident of November 2010, it also reflects that the appellant, despite the brief incident of intimacy between the husband and R, marched forward and was still willing to reconcile and continue with the matrimonial relationship with the husband. Once she herself had come to terms with the incident, it clearly shows that it was not considered by her an act significant enough to snap her relationship with her husband., It is also noted that the appellant took her daughter along with her to the Subhash Nagar house of the mother of R on 04 November 2010, where she found the husband present and prepared the video recording of the incident which was relied upon by the daughter, who was about twelve years old at that time. The learned Principal Judge also observed that the appellant filed a petition under the Protection of Women against Domestic Violence Act in the year 2014, in which she had impleaded her daughter as co‑petitioner. However, the child was not even aware of these proceedings. In addition, the appellant instituted a suit at Gurgaon in the name of her daughter against the husband in May 2018. Not only this, the daughter was produced as RW2 to depose about this case as a witness of the appellant. The appellant had already instituted a suit against the husband concerning the aforesaid property in her own name before the Civil Judge, Gurgaon in November 2012, despite which she filed another litigation in the name of the daughter against the husband in May 2018. Thus, it emerges that the appellant, who admittedly had some differences with the husband, chose to retaliate by using the child as a tool who was barely twelve years old in November 2010, to get back at the husband. The ultimate act was taking the child with her to the house of R on 04 November 2010 wherein an aggressive exchange of words took place between the appellant and the husband which was witnessed by the child. The husband was not even allowed to talk to the daughter. The learned Principal Judge further observed that the alienation of the child from the husband did not end there as, according to the husband, the appellant shifted to Pune along with the child in the year 2012 without his knowledge. The daughter had not been in contact with her father from 2013 till 2018., The learned Principal Judge from all the circumstances as detailed above concluded that it makes it evident that the child had been totally alienated from her father by the mother. The discord and the disputes were between the husband and wife and, no matter how bitter the relationship between them had become, it was not appropriate to involve the child or embitter her against the father or to use her as a tool against him., In the case of Prabin Gopal versus Meghna (2021) SCC OnLine Ker 2193, the Kerala High Court observed that the mother had intentionally distanced the child from the father and had deprived the child of parental love and affection. It was a case of parental alienation where the child, who was in the custody of one parent, had been psychologically manipulated against the estranged parent. It was a strategy whereby one parent intentionally displayed to the child unjustified negativity aimed at the other parent, with the intent to damage the relationship between the child and the estranged parent and to turn the child emotionally against the parent. The Kerala High Court observed that the child has a right to love and affection of both parents and likewise the parents also have a right to receive love and affection of the child. Any act of any parent calculated to deny such affection to the other parent amounts to alienating the child which amounts to mental cruelty. Since the child was in the custody of the mother, it was held that the mother had breached her duty as a custodian parent to instil love, affection and feelings in the child for the father.
id_1719	1	Nothing more can be painful than experiencing one's own flesh and blood, that is, the child, rejecting him or her. Such wilful alienation of the child amounts to mental cruelty. In the present case, the child has not only been totally alienated, but has also been used as a weapon against the father. Nothing can be more painful for a parent than to see the child drifting away and being totally against the father. This assumes significance because the father never failed to provide for the child, either for her education or otherwise, or to provide army facilities as were available. Ten percent of his salary was being paid to the child for her maintenance, which was subsequently increased to twenty percent., The Principal Judge of the Family Court has, therefore, rightly concluded that such child alienation is an extreme act of mental cruelty towards a father who has never shown any neglect for the child., Furthermore, the appellant had addressed communications dated 07 May 2015, 23 June 2015, 24 June 2015 and 13 July 2015 collectively ex PW6/O, wherein averments were made questioning the respondent's promotion as a Commanding Officer and also seeking a stay on his transfer from a high altitude posting where he had completed his two years. She also alleged that the respondent had falsely claimed House Rent Allowance and complained that he had got the AWHO flat registered in his individual name, even though it was allotted in their joint name. These complaints made by the appellant in 2015 also reflect the vindictive attitude of the appellant, wherein she was out to ruin the career of the respondent. Consequently, disciplinary proceedings were initiated against the respondent at the behest of the appellant, though, as per the testimony of PW6, Col. Akash Mishra of the HR Department of the Army, he was exonerated from them., In the recent case of Joydeep Majumdar versus Bharti Jaiswal Majumdar, 2021 SCC Online SC 146, in similar facts, not only defamatory complaints were made to the superiors of the husband in the Army for which a Court of Inquiry was held, but it also impacted his career progression. It was observed that allegations levelled by a highly educated spouse have a propensity to irreparably damage the character and reputation of the husband and sully his reputation amongst his colleagues, superiors and society at large; condonation of such acts is difficult to expect from the aggrieved party. The explanation of the wife that the complaints were made in order to protect the marital ties cannot by any standard be considered a reasonable justification for her persistent efforts to undermine the dignity of the husband. In such circumstances, the wronged party cannot be expected to continue the matrimonial relationship, and there is sufficient justification for separation., In the present case, such conduct from an educated spouse cannot be expected, and such complaints made by her further prove her vengeance to bring down the respondent. Once vindictiveness has crept in, the appellant marched on a war path, filing complaints in the Department and also initiating various civil and legal cases since 2011, that is, for about twelve years, and has even alienated the daughter from the respondent. This leads to the irresistible conclusion that various acts of cruelty have been committed towards the respondent., From the above discussion we conclude that the Principal Judge of the Family Court has rightly held that the respondent was entitled to divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The situation does not change merely because the respondent expired on 02 December 2021 and his legal heirs, that is, the mother and daughter, have been impleaded as parties., The divorce was also granted on the ground of desertion, but from the above discussion it is evident that the matters had progressed to an extent where neither the appellant nor the respondent were in a position to restore their marital ties. In such circumstances, it cannot be held that it was a case of desertion by the wife for a period of more than two years from the date of separation, that is, July 2011 onwards. We therefore find that divorce on the ground of desertion is not made out. Consequently, we partially modify the impugned judgment and decree dated 04 September 2018 and set aside the divorce on the ground of desertion but uphold the divorce on the ground of cruelty.
id_1720	0	Petitioner: Sanjay Goel and another. Respondent: State of Uttar Pradesh and two others. Counsel for the petitioner: Swetashwa Agarwal, Dinkar Lal. Counsel for the respondents: Government Advocate Mahesh Chandra Tripathi, Judge Subhash Vidyarthi. Heard Shri Swetashwa Agarwal, learned counsel for the petitioners., The relief sought in this petition is for quashing of the First Information Report dated 27 January 2021 registered as Case Crime No. 0037 of 2021 under Sections 337, 338 and 427 of the Indian Penal Code, Police Station Knowledge Park, District Greater Noida (Commissionerate Gautam Buddha Nagar). Further prayer has been made that the petitioners not be arrested in the aforesaid case. Learned counsel for the petitioners submits that the petitioners are working as Director and Manager of OPPO Mobiles India Private Limited. The impugned FIR has been lodged against the petitioners and four other persons, all working at OPPO India Private Limited, alleging that the third respondent/informant bought a mobile phone of OPPO India Private Limited on 17 July 2019. The said mobile phone exploded in his pocket on 1 September 2020, wherein he sustained injuries., So far as the impugned FIR is concerned, no offence is made out against the petitioners. They are merely Director and Manager of OPPO India Private Limited and have been falsely implicated in the present case. It is submitted that, at the best, the informant ought to have approached the District Consumer Dispute Redressal Commission, Consumer Court or Civil Court for redressal of his grievance., In support of his submission, the petitioner has placed reliance on the judgment of the Supreme Court in Criminal Appeal No. 1047‑1048 of 2021 (Ravindranath Bajpe v. Mangalore Special Economic Zone) wherein it was held that company officials such as Chairman, Managing Director, Director etc. cannot be held vicariously liable under criminal law for offences committed by the company unless there are specific allegations and averments against them with respect to their individual role. He has further placed reliance on the judgment in Pepsi Foods Ltd. v. Special Judicial Magistrate reported in 1998 (5) SCC 749. The Additional Government Advocate has not disputed the factual aspect of the matter. Prima facie, we are of the opinion that the present proceeding is an abuse of the process of law, which requires consideration by the Honorable High Court of Uttar Pradesh., Issue notice to Respondent No. 3, returnable at an early date. Steps may be taken within a week. The respondents are accorded four weeks' time to file a counter affidavit. One week thereafter is accorded to file a rejoinder affidavit. List thereafter. Till the next date of listing, further proceeding of the impugned First Information Report dated 27 January 2021 registered as Case Crime No. 0037 of 2021 under Sections 337, 338 and 427 of the Indian Penal Code, Police Station Knowledge Park, District Greater Noida (Commissionerate Gautam Buddha Nagar), shall remain stayed.
id_1723	0	Pradeep Rameshwar Sharma, Age: 59, Occupation: Retired, Plot No. 601, Bhagwan Bhavan, JB Nagar, Andheri (East), Mumbai 400059, Appellant/Accused No. 10 versus National Investigating Agency, 7th Floor, MTNL, Telephone Exchange Building, Pedder Road, Cumballa Hill, Mumbai 400026; and the State of Maharashtra, Respondents. Mr. Aabad H. Ponda, Senior Advocate as well as Mr. Subhash Jadhav, Mr. Chandansingh Shekhawat, Mr. Dilip Kumar Rawat, Mr. Yashovardhan Deshmukh and Mr. Prasanna Kumar in behalf of Mr. Waqar Nasir Pathan for the Appellant; Mr. Anil Singh, Additional Solicitor General as well as Mr. Sandesh Dadasaheb Patil, Mr. Aditya Thakkar, Mr. Chintan Shah and Ms. Savita Sadananda for the Respondent No.1 – National Investigating Agency; Mr. J. P. Yagnik, A.P.P. for the Respondent No.2 – State., In view of the not-before order passed by Justice A. S. Gadkari dated 21 September 2022, the present appeal is listed before this Bench. By this appeal, preferred under Section 21 of the National Investigation Agency Act, 2008, the appellant (A‑10) has impugned the order dated 16 February 2022 passed by the Special Court (National Investigation Agency), Greater Mumbai, rejecting his application for bail. He seeks enlargement of bail in connection with National Investigation Agency Reference Case 01/2021/NIA/MUM (National Investigation Agency Special Case No. 1090/2021), for alleged offences punishable under Sections 120B, 201, 302, 364 and 403 of the Indian Penal Code, Section 25 of the Arms Act and Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 2004., Relevant Facts: A few facts necessary to decide the appeal are as follows., On 25 February 2021, in the early hours, a Mahindra Scorpio vehicle was found parked on Carmichael Road, near the Antilia building, i.e., near the residence of a prominent businessman. On the same day, the police of the Gamdevi Police Station found twenty gelatin sticks and a note in the vehicle, threatening the prominent industrialist and his wife. Pursuant to this, the Gamdevi Police lodged a First Information Report, which was registered as Crime Report No. 35/2021 under Sections 286, 465, 473, 506(2) and 120B of the Indian Penal Code and Section 4(a)(b)(i) of the Explosive Substances Act, against unknown persons., The said Crime Report was transferred to the Crime Intelligence Unit, Crime Branch, Mumbai, and the case was re‑registered as Crime Report No. 40/2021. The investigation was assigned to Sachin Waze (A‑1), then Assistant Police Inspector, Crime Intelligence Unit, Crime Branch, Mumbai. During the investigation it was learned that the Scorpio vehicle had a fake number plate and that its actual number was MH‑02‑AY‑2815. In respect of this vehicle, a separate Crime Report, No. 47/2021, was registered with Vikhroli Police Station by the late Mansukh Hiren on 18 February 2021, alleging theft of his vehicle, an offence punishable under Section 379 of the Indian Penal Code. According to the late Mansukh Hiren, his Scorpio vehicle was stolen on 17 February 2021 by an unknown person., The investigation of Crime Report No. 47/2021 was also transferred to the Crime Intelligence Unit, Crime Branch, Mumbai and re‑registered as Crime Report No. 41/2021. The investigation was again assigned to Sachin Waze (A‑1)., On 1 and 2 March 2021, the late Mansukh Hiren was summoned by the Crime Intelligence Unit, Crime Branch, and he attended the unit office on 2 and 3 March 2021. On 4 March 2021, he left his house to meet a police officer named Tawde and did not return home. Consequently, on 5 March 2021, a missing‑person complaint was filed at Naupada Police Station, Thane, by his son Meet Hiren, registered as Missing Person Report No. 16/2021., On 5 March 2021, the late Mansukh Hiren’s dead body was found by Mumbra Police in the creek area of Retibunder. An Accidental Death Report No. 39/2021 under Section 174 of the Criminal Procedure Code was registered by Mumbra Police Station. During the investigation, Mansukh Hiren’s widow, Vimla Hiren, in her written complaint before the Anti‑Terrorist Squad, Thane Unit, alleged foul play and expressed suspicion against Sachin Waze., On 6 March 2021, the Government of Maharashtra issued an order transferring the cases relating to the placement of explosive‑laden Scorpio SUV, theft of the Scorpio vehicle and the ADR case of Mansukh Hiren to the Anti‑Terrorist Squad, Maharashtra, for further investigation. On 7 March 2021, the Anti‑Terrorist Squad, Maharashtra, converted ADR No. 39/2021 into an offence of murder and re‑registered the case as Crime Report No. 12/2021, alleging offences punishable under Sections 302, 201, 34 and 120B of the Indian Penal Code, as against unknown persons, for the murder of Mansukh Hiren. The cases relating to the placement of explosive‑laden Scorpio SUV and theft of the Scorpio vehicle were re‑registered as Crime Report Nos. 10/2021 and 11/2021 respectively., On 8, 20 and 21 March 2021, as per the directions of the Ministry of Home Affairs, Government of India, the National Investigation Agency took over the investigation of the aforesaid cases and directed the agency to suo motu register a case and take up the investigation. Accordingly, the case was re‑registered by the National Investigation Agency as NIA Reference Case 01/2021/NIA/MUM on 8 March 2021 and the original case papers and articles were handed over by the Anti‑Terrorist Squad, Maharashtra to the National Investigation Agency, Bombay Office, on 10 March 2021. During the investigation it was found that Sachin Waze (A‑1), along with other co‑accused including the appellant, had committed offences attracting the provisions of the Unlawful Activities (Prevention) Act, and therefore Sections 16, 18 and 20 of that Act were invoked., Several persons involved in the commission of the offence were arrested. The appellant was arrested on 17 June 2021. Upon completion of investigation, the National Investigation Agency filed a charge‑sheet on 3 September 2021 against ten accused: (1) Sachin Waze, (2) Naresh Gor, (3) Vinayak Shinde, (4) Riyazuddin Kazi, (5) Sunil Mane, (6) Santosh Shelar, (7) Anand Jadhav, (8) Satish Mothkuri, (9) Manish Soni and (10) Pradeep Sharma, under various provisions of the Indian Penal Code, Unlawful Activities (Prevention) Act, Explosive Substances Act and Arms Act. The agency also filed an application under Section 173(8) of the Criminal Procedure Code. In paragraph 18 of the charge‑sheet, the allegations against the appellant are set out as follows: He willingly and intentionally entered into a well‑organized criminal conspiracy for the execution of the murder of Mansukh Hiren, which was a direct outcome of the terrorist act committed by A‑1 and others. He, along with A‑1 and A‑5, attended various meetings in the CP office compound for the execution of the murder. As the main conspirator, he hired A‑6 and henchmen for killing Mansukh Hiren by offering them a huge amount of money received from A‑1. He directed A‑6 to arrange benami SIM cards and mobile for communication during the planning and execution of the murder. He used one benami SIM card and mobile phone given by A‑6 (procured by A‑9) for the planning and execution of the murder. He received a huge cash amount from A‑1 for executing the murder. After the murder, he directed A‑6 to flee from Mumbai to Nepal along with henchmen to avoid arrest. Through A‑6, he organized the fleeing of A‑9 from Mumbai to Dubai and thereafter arranged for the stay of A‑9 at Sai Leela Grand Hotel, Andheri (East), Mumbai, operated in benami by him., The sections alleged against the appellant are Sections 120B, 201, 302, 364 and 403 of the Indian Penal Code; Section 25 of the Arms Act; and Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act. The charge‑sheet states that the appellant conspired with Sachin Waze and others to eliminate Mansukh Hiren., The charge‑sheet does not prima facie disclose that the appellant was involved in the conspiracy of planting gelatin sticks in the Scorpio vehicle. Accordingly, the provisions of the Explosive Substances Act and the Arms Act were not applied by the National Investigation Agency against the appellant. The agency has not obtained sanction to prosecute the appellant under those Acts; the sanction orders are only against Sachin Waze., Mr. Ponda, learned senior counsel for the appellant, submitted that the circumstances relied upon by the prosecution are contrary to the documents and statements of witnesses on record. He further submitted that, as seen from the charge‑sheet, the appellant is not concerned with the Scorpio vehicle laden with gelatin sticks and that his alleged role arises only post‑incident, i.e., in eliminating Mansukh Hiren. He heavily relied on the statement of Advocate K. H. Giri, which described Mansukh Hiren as a bold person with no frustration on his face when met on 2 March 2021. He also relied on statements of witnesses to show contradictions regarding the presence of Sachin Waze at the PS Foundation Office and the alleged handing over of a bag containing cash. He submitted that the prosecution does not satisfy the requirements mandated by law for circumstantial evidence and that there is no legal, cogent, admissible evidence connecting the appellant with the murder of Mansukh Hiren. He relied on the Apex Court decision in Sharad Birdhichand Sarda v. State of Maharashtra and several other judgments on circumstantial evidence, arguing that the circumstances are consistent with the appellant’s innocence and that each circumstance has a reasonable explanation., Mr. Anil Singh, the learned Additional Solicitor General, vehemently opposed the appeal. He submitted that the circumstances on record clearly point to the appellant’s complicity in the crime. He argued that the defence cannot be considered at this stage while deciding the bail application. He emphasized that the appellant is facing prosecution not only under the Indian Penal Code but also under the Unlawful Activities (Prevention) Act, and that the appellant conspired with Sachin Waze and others to eliminate Mansukh Hiren. He supported his submission with several statements and documents from the charge‑sheet., The Court perused the papers with the assistance of the learned counsel for the respective parties. At the outset, the Court expressed anguish at the manner in which the National Investigation Agency investigated the conspiracy of parking the Scorpio vehicle near the residence of a prominent businessman and planting gelatin sticks in the vehicle., The Court noted that during arguments it asked the learned Additional Solicitor General with whom Sachin Waze had entered into a conspiracy to plant gelatin sticks in the Scorpio vehicle, since the charge‑sheet merely states that he conspired ‘with others’ without naming them. The learned Additional Solicitor General took time to answer. On the next date of hearing, he stated that Sachin Waze had entered into a conspiracy on 17 February 2021 with the appellant even in the parking and planting of gelatin sticks. The Court found no material in the charge-sheet indicating the appellant’s involvement in that aspect and questioned why the agency remained silent on this point., The learned Additional Solicitor General attempted to buttress the conspiracy allegation by relying on Call Detail Records of the appellant dated 17 February 2021, showing the appellant at Masjid Bandar at 20:17 hours, where Sachin Waze was also present, and later the appellant at Vikhroli at 22:56 hours, the area where the Scorpio was parked. The prosecution case is that Sachin Waze wanted to plant gelatin sticks in a vehicle belonging to Mansukh Hiren, instructed him to drive the Scorpio from Thane to Vikhroli on 17 February 2021, hand over the keys near the CP office compound, and later, with the assistance of a person identified as KW‑1, changed the number plate and moved the vehicle to Sachin Waze’s residence. The Court observed that the CDRs do not reveal that the appellant and Sachin Waze were together at either Masjid Bandar or Mazgaon, and that apart from these CDRs, the prosecution has not shown any call exchanges between them on that day. The Court is not satisfied with the explanation that the appellant was in Vikhroli (West) while the vehicle was parked in Vikhroli (East)., The Court observed that the National Investigation Agency, after detailed investigation, did not charge‑sheet the appellant for the offence relating to the Scorpio vehicle laden with gelatin sticks. The Court finds it implausible that Sachin Waze could have acted alone and notes the lack of investigation into co‑conspirators. The Court also noted that the agency could not identify who planted the threatening note or authored the alleged Telegram claim, and that the learned Additional Solicitor General attributed both to Sachin Waze without documentary support., The Court recorded the testimony of a cyber‑security professional, Ishaan Sinha, who claimed to have provided a confidential report to the Commissioner of Police, Mumbai, regarding a Telegram channel that claimed responsibility for the Antilia terror scare. He stated that the Commissioner directed him to insert the poster from the channel into his report and subsequently paid him Rs 5,00,000 from the Special Security Fund. This payment was corroborated by Joseph D. Silva, who handled the Commissioner’s personal work and confirmed handing over the cash in a paper bag. The Court noted that the source and purpose of this large payment remain unexplained. The Court further observed that, for the first time, the National Investigation Agency is attempting to link the appellant with the Scorpio vehicle laden with gelatin sticks during the submissions, despite lacking substantive investigation into who conspired with Sachin Waze for that act., The Court turned to the circumstances relied upon by the prosecution regarding the appellant’s role in the murder of Mansukh Hiren. The prosecution alleges that the appellant met Sachin Waze on 28 February 2021 at Malabar Hill Police Station for about 30‑40 minutes, after which they travelled together in one car to Worli Sea‑face and conversed for another 20‑25 minutes. The prosecution’s case is that the appellant, a retired police officer, met Sachin Waze at the police station without any apparent reason. The learned Additional Solicitor General relied on statements of PSO Prasanjeet Sawdekar, the appellant’s driver Ulhas Shirsole, and another PSO Vikas Bangar to support this claim. Mr. Ponda submitted that the meeting was prompted by an alleged directive from the former Home Minister of Maharashtra, who had asked Sachin Waze to collect an amount of one hundred crore rupees from various bars, restaurants and pubs across Mumbai and to hand over the extorted money by 3 March 2021, threatening legal action and removal from service if the directive was not followed. Accordingly, Sachin Waze allegedly met the appellant for assistance. The Court noted that these meetings occurred after the discovery of the Scorpio vehicle laden with gelatin sticks.
id_1723	1	Admittedly, none of these witnesses were present in the meeting nor are they alleged to have heard the conversation between Sachin Waze and the Ex-Home Minister. Prima facie, the meeting with the Ex-Home Minister cannot be said to be unusual, as Sachin Waze was the Investigating Officer of an important case at the relevant time. At the highest, the statements relied upon by the learned senior counsel show that Sachin Waze had visited the Home Minister's residence. Admittedly, none of them have spoken about the conversation that took place between Sachin Waze and the Ex-Home Minister. This is the defence of the appellant, which will have to be considered at the stage of trial and not at the stage of bail. Thus, the defence of the appellant that he was called by Sachin Waze to Malabar Hill Police Station for disclosing to him the threat given to him by the Ex-Home Minister cannot be considered while considering the appellant's plea for bail. It is the appellant's defence, to be tested at the time of trial., According to KW-13, the appellant told him to inform Sachin Waze that he should call the appellant; pursuant thereto, Sachin Waze and the appellant met. The fact remains that the appellant, a retired police officer, had a closed‑door meeting with Sachin Waze at Malabar Hill Police Station and, though he was not concerned with any of the cases, i.e., either pertaining to the Scorpio vehicle laden with gelatin sticks or the missing vehicle of Mansukh Hiren, they (the appellant and Sachin Waze) travelled together in one car from Malabar Hill Police Station to Worli Seaface, where they got down and talked for about 20–25 minutes. The same has been stated by several witnesses including KW‑13, PSO Prasanjeet Sawdekar and others., The second circumstance according to the prosecution is the visit of the appellant to the Crime Investigation Unit Office, Mumbai on 02‑03‑2021, where the appellant and Sachin Waze met the Commissioner of Police, Mumbai in his office and thereafter the appellant and Sachin Waze met separately in Sachin Waze's cabin for about ten minutes and then left. According to the prosecution, the appellant, a retired police officer, had no reason to visit the Commissioner of Police's office. The Additional Solicitor General submitted that it is a matter of record that on the same day, Mansukh Hiren was also present in the Commissioner of Police's office, and Sunil Mane (A‑5, a co‑conspirator) was also present. It is alleged by the prosecution that on the said day, the appellant entered into a criminal conspiracy with Sachin Waze and Sunil Mane for eliminating Mansukh Hiren. The statement of PSO Prasanjeet Sawdekar reveals that on 02‑03‑2021, he accompanied the appellant to the Commissioner of Police's office at about 12:00 hrs; that the appellant went to meet the Commissioner; that after 15–20 minutes, the appellant came down and went to the Crime Investigation Unit to meet Sachin Waze; that he followed the appellant to the Crime Branch Building, however, the appellant asked him to wait downstairs; that after 10–15 minutes, the appellant came down with Sachin Waze. It is also pertinent to note that the statement of Assistant Commissioner of Police Alaknure reveals that when he visited the Commissioner of Police's office to meet the Deputy Commissioner of Police on 05‑03‑2021, he saw the appellant coming out of the Commissioner of Police's chamber. The reason for the appellant, a retired police officer, to be in the Commissioner of Police's office, including the chamber, is not forthcoming. Prima facie, the fact remains that the appellant was present in the Commissioner of Police's office on 02‑03‑2021 and 05‑03‑2021, albeit without any plausible reason. No plausible reason is also spelled out by the learned senior counsel for the appellant for the presence of the appellant in the Commissioner of Police's office., Mr. Ponda, learned senior counsel for the appellant, vehemently submitted that the question of doing away with Mansukh Hiren would not arise, inasmuch as the statement of Advocate K. H. Giri would show the mental state of Mansukh Hiren, i.e., he was not stressed, was composed and cooperative., It is the case of the prosecution that meetings between Sachin Waze and the appellant were held on 28‑02‑2021 and 02‑03‑2021 to eliminate Mansukh Hiren, as Mansukh Hiren was a weak link and, if arrested, he would expose Sachin Waze. According to Mr. Ponda, the statement of Advocate K. H. Giri would show that Mansukh Hiren had met him on 02‑03‑2021 and that he was willing to cooperate with Sachin Waze and, as per Sachin Waze's advice, was ready to file a complaint for the harassment faced by him from the media and police with respect to his stolen car, which was subsequently found parked outside the Antilia building, laden with explosives. It is submitted that Advocate K. H. Giri's statement would show that there was no enmity between Mansukh Hiren and Sachin Waze on 02‑03‑2021, and that Mansukh Hiren was fully cooperating and was a bold person with no frustration visible on his face., A perusal of Advocate K. H. Giri's statement would show that on 02‑03‑2021, at about 13:30 hrs., he received a call from Sachin Waze requesting him to advise and draft a complaint for his friend Mansukh Hiren. He was informed that the vehicle of Mansukh Hiren was stolen from Eastern Express Highway and that Mansukh Hiren was being harassed by the police and the media because the vehicle was found stationary near a prominent industrialist's residence. As recommended by Sachin Waze, he drafted a complaint of Mansukh Hiren addressed to the Chief Minister of Maharashtra, the Home Minister, and the Commissioner of Police, Mumbai and Thane. Advocate K. H. Giri stated that Mansukh Hiren visited his office at 3:00 p.m. and left at 5:00 p.m.; after reading the complaint, Mansukh Hiren was satisfied, signed it, and asked him to deliver it to the concerned authorities. He stated that after speaking to Mansukh Hiren, he found him to be a bold person with no frustration of any kind on his face. He also stated that while giving the instructions, Mansukh Hiren never mentioned the NIA or any other investigating agency other than the State Police., Mr. Ponda, learned senior counsel for the appellant, submitted that having regard to Advocate K. H. Giri's statement, the question of the appellant conniving with Sachin Waze did not arise. This could be Mr. Giri's perception based on his interaction with Mansukh Hiren, who may have felt that Sachin Waze was trying to help him by providing a lawyer. It is pertinent to note that the National Investigation Agency, during the search of Sachin Waze's office, seized a letter—the notice prepared by Advocate K. H. Giri. Advocate K. H. Giri, after perusing the seized letter, stated that the contents of the complaint letter drafted by him were edited by Sachin Waze and therefore were not in the original draft. It appears that seven paragraphs of the letter written by Advocate K. H. Giri were edited by Sachin Waze. Advocate K. H. Giri further stated that the edited paragraphs were never mentioned by Mansukh Hiren., Another circumstance alleged by the prosecution against the appellant is that Sachin Waze had brought a bag containing money in his car to the P.S. Foundation compound at Andheri on 03‑03‑2021 and handed it over to the appellant. The P.S. Foundation is, admittedly, a foundation run by the appellant. The prosecution case is that the bag brought by Sachin Waze contained cash and was transferred from his car to the appellant's car. According to the prosecution, money was given to the appellant for executing the murder of Mansukh Hiren. KW‑13, in his statements recorded under Sections 161 and 164, stated that on 03‑03‑2021, around 20:00 to 21:30 hrs., Sachin Waze came to the appellant's P.S. Foundation office; he saw the two talking on the side; Sachin Waze handed over a bag from the boot of his SUV to KW‑13 to keep in the appellant's car, saying that the bag contained the appellant's clothes; while transferring the bag, the zip being partially open, he saw bundles of Rs 500 notes in the bag and found it heavier than a bag containing clothes. KW‑13 stated that Sachin Waze noticed that he had seen the bag and consequently threatened him with dire consequences if he opened his mouth. KW‑13 further stated that when he disclosed the threat to the appellant, the appellant told him not to take it seriously, as Sachin Waze was in the habit of joking., According to KW‑13, Sachin Waze was present at the P.S. Foundation between 20:00 and 21:30 hrs. Another witness, PSO Prasanjeet Sawdekar has prima facie corroborated KW‑13's statement that on 03‑03‑2021 at about 21:00–21:30 hrs., while he was waiting downstairs at the P.S. Foundation office, Sachin Waze arrived and met the appellant; after speaking with the appellant for about five to ten minutes, Sachin Waze opened the boot of his Prado vehicle and the appellant told KW‑13 to transfer a bag from Sachin Waze's vehicle; after placing the bag, Sachin Waze left., Although much emphasis is placed by the learned senior counsel for the appellant on the fact that the witness had not disclosed the threat given to KW‑13 or the zip being open, it is not necessary to pursue this, as it would depend on how closely the witness was associated with KW‑13. It suffices to state that this witness has corroborated KW‑13 regarding Sachin Waze having come to the P.S. Foundation to meet the appellant and that a bag was transferred from Sachin Waze's car to the appellant's car. According to Mr. Ponda, the statements of KW‑13 and Prasanjeet Sawdekar, who corroborate KW‑13, are contrary to the statements of some other police officers as well as the call detail records relied upon by the prosecution. He submitted that some police officers, i.e., Police Constable Sameer Gawkar and Police Constable Pankaj Bhosle, have stated that Sachin Waze was present in the Crime Investigation Unit office, Crawford Market on 03‑03‑2021, whereas the prosecution alleges that he was at the P.S. Foundation in Andheri. It is also submitted that the call detail records do not corroborate the timings mentioned by KW‑13 and PSO Prasanjeet Sawdekar regarding Sachin Waze's presence at the P.S. Foundation, Andheri. He submitted that the call detail records of Sachin Waze for 03‑03‑2021, relied upon by the prosecution, show that Sachin Waze was at the Crime Investigation Unit office, Crawford Market at about 20:35 hrs.; at Malabar Hill at 20:47 hrs.; at 21:55 hrs. at Bandra Worli Sea Link; and near Santacruz at 22:16 hrs. After Santacruz, he proceeded to Andheri, where the P.S. Foundation office is situated. The prosecution case is that after reaching Santacruz, Sachin Waze switched off his mobile, and hence there are no call records thereafter. While there is some discrepancy regarding the time, the categorical statements of witnesses KW‑13 and Prasanjeet Sawdekar that they saw Sachin Waze transferring a bag into the appellant's car, and that KW‑13 stated the bag contained cash, cannot be ignored. Moreover, the incident occurred on 03‑03‑2021, whereas the statements of the witnesses were recorded on 12‑08‑2021 and 26‑06‑2021, respectively, about three months later. Minor timing variations, prima facie, would not defeat the prosecution case., Mr. Ponda also submitted that even if, for the sake of argument, Sachin Waze gave a bag containing cash to the appellant, the cash was given because Sachin Waze anticipated that he would be arrested at the behest of the Ex‑Home Minister, pursuant to threats that the amount of Rupees one hundred crores was not collected, and that the amount was intended to secure his release on bail. This is the defence of the appellant and cannot be considered at this stage., The next circumstance alleged by the prosecution is that the appellant facilitated the escape of Manish Soni (A‑9) along with Santosh Shelar (A‑6) to Nepal to avoid arrest and thereafter helped Manish Soni flee from Mumbai to Dubai through Santosh Shelar. Mr. Ponda submitted that a perusal of the documents and statements would reveal that Manish Soni's (A‑9) tickets were not booked by the appellant but were booked by Santosh Shelar's (A‑6) daughter., Mr. Ponda submitted that, regarding the allegation that the appellant facilitated the escape of Santosh Shelar (A‑6) and Manish Soni (A‑9) from Mumbai to Nepal after the murder of Mansukh Hiren, there is not a single witness who speaks about the appellant's role in the commission of the act. He further submitted that, concerning the allegation that the appellant facilitated the escape of Manish Soni (A‑9) from Mumbai to Dubai through Santosh Shelar (A‑6), the statement of Santosh Shelar's daughter, Siddhi Shelar, shows that she booked the tickets for Manish Soni from Mumbai to Dubai at the instance of her father. In this context, the learned senior counsel relied on the statement of Siddhi Shelar, daughter of Santosh Shelar (A‑6)., We may note that it does not appear to be the prosecution case that the appellant booked any tickets facilitating the escape of the co‑accused. A perusal of the charge against the appellant shows that he directed Santosh Shelar to flee from Mumbai to Nepal along with his henchmen, and not that the appellant booked the tickets. No doubt, the tickets were booked by Santosh Shelar's daughter; however, it cannot be ignored that Santosh Shelar (A‑6) was closely associated with the appellant and there are call detail records to that effect. Although Mr. Ponda contended that Santosh Shelar (A‑6) was known to the appellant as his informer and that being in touch with Santosh Shelar cannot be said to be incriminating, we cannot accept that submission at this stage, considering the role of Santosh Shelar (A‑6), who was closely associated with the appellant in the commission of the crime. The prosecution case is that Santosh Shelar (A‑6) was one of the assailants who smothered Mansukh Hiren and disposed of his dead body along with other co‑accused., The next circumstance alleged by the prosecution is that the appellant, on Manish Soni's (A‑9) return to Mumbai from Dubai on 08‑05‑2021, got him quarantined in a hotel called Sai Leela Grand at Andheri, operated in benami by the appellant. According to the prosecution, the hotel belonged to the appellant's wife and she had leased the first and second floors to Ravindranath Shardaprasad Singh and Prakash Vithhal Poojari, who were running the hotel under the name Hotel Sai Leela Grand. Mr. Ponda submitted that this circumstance cannot be said to be incriminating. The learned senior counsel for the appellant submitted that the hotel was leased out in 2018 and that merely because Manish Soni stayed in the hotel cannot be an incriminating circumstance against the appellant. He acknowledged that the hotel was not run by the appellant nor his wife. He stated that the hotel is registered with the Mumbai International Airport and was included in the Airport Quarantine Hotels, pursuant to which the appellant was staying in the hotel. It should be noted that during this period, whenever passengers arrived from abroad, they could choose a hotel from the list of quarantine hotels; therefore, it is not necessary to conclude that Manish Soni was sent there by the authorities. It is pertinent to note that co‑accused Manish Soni, in his Section 164 statement, stated that when he reached Mumbai, as per airport protocol, he had to stay in quarantine at his own expense for seven days. Consequently, he called Santosh Shelar, who gave him the details of the hotel for quarantine to complete the BMC form. He stated that Santosh Shelar bore the expenses of that hotel., A perusal of the statement of Ravindranath Singh shows that on 09‑05‑2021, Manish Soni (A‑9) came to stay in his hotel and that he saw him on 11‑05‑2021 when Santosh Shelar (A‑6) came to meet Manish Soni in the hotel. He stated that Manish Soni stayed in his hotel for about seven days and, during that stay, Santosh Shelar visited the hotel to meet Manish Soni two to three times. He stated that Santosh Shelar was pressurising them to let Manish Soni go home before the end of quarantine; however, Manish Soni was permitted to leave only after his Covid RT‑PCR test and the end of his quarantine period. He further stated that when Manish Soni checked out of the hotel, he did not pay the charges and, when asked, said that Santosh Shelar would pay the hotel charges., Prakash Vitthal Poojari, in his statement, said that he knows the appellant for about 15 years and Santosh Shelar for about two years. He stated that when he and his business partner Ravindranath Singh were looking for a place for a hotel, their acquaintance Ajay Sharma, who is always with the appellant, suggested the first and second floor in the Raylon Arcade Building, Kondiwada, R. K. Temple Road, J. B. Nagar, Andheri (East), Mumbai, standing in the name of Shrimati Swikriti Pradeep Sharma, wife of the appellant. He stated that on 17‑04‑2018, Ravindranath Singh and he rented the first and second floors of the Raylon Arcade Building in the name of the appellant's wife for Rs 1,13,000 for running a hotel. He stated that their Hotel Sai Leela Grand was registered with the Mumbai International Airport and was included in the list of Airport Quarantine Hotels. He stated that he and Ravindranath Singh would regularly sit on the sofa near the hotel reception around 11:00 a.m. daily, and therefore knew who was coming to the hotel. He stated that on 09‑05‑2021, a person named Manish Soni (A‑9) came to stay in the Sai Leela Grand Hotel. He further stated that Santosh Shelar came to meet Manish Soni in the hotel on 11‑05‑2021. He stated that Manish Soni stayed in their hotel for about seven days and, during those seven days, Santosh Shelar visited the hotel to meet Manish Soni two to three times. He stated that Santosh Shelar pressurised them to let Manish Soni go home before the end of his quarantine period, but their hotel manager released Manish Soni only after a RT‑PCR test and the end of his quarantine period. He further stated that when Manish Soni checked out of the hotel, he did not pay the hotel rent. When the hotel manager asked about the rent, he said that Santosh Shelar would pay the hotel rent. He further stated that when Santosh Shelar met him, he told him that he would pay Manish Soni's hotel rent himself. He stated that on 16‑05‑2021, Manish Soni left without paying the hotel bill and, thereafter, neither Santosh Shelar nor Manish Soni paid the hotel bill., Co‑accused Manish Soni, in his confessional statement recorded under Section 164 of the Criminal Procedure Code, stated how he knew Santosh Shelar for six years; that Santosh Shelar asked him to purchase one simple mobile phone and two activated new SIM cards on 01‑03‑2021, which he did and gave to him; how the incident of the 04‑03‑2021 murder of Mansukh Hiren took place; the role of Santosh Shelar and others in the same; how he escaped to Nepal with Santosh Shelar; that the trip was sponsored by Santosh Shelar; and how Santosh Shelar arranged his flight tickets to Dubai. Manish Soni further stated that when he returned to Mumbai, as per airport protocol, he was required to stay in quarantine at his own expense for seven days; therefore, he called Santosh Shelar, who gave him the details of the hotel for quarantine to complete the BMC form. He stated that Santosh Shelar bore the expenses of that hotel. According to Manish Soni, during his quarantine at the Hotel Sai Leela Grand, Santosh Shelar met him on 09‑05‑2021 and 11‑05‑2021. He further stated that on 13‑05‑2021, while he was having tea, the appellant arrived in his car and asked him if Santosh Shelar had come there. As he replied in the negative, the appellant left., KW‑13, in the Section 161 statement, stated as follows: The Raylon Arcade building has six floors. The first to fourth floors are owned by Shri Pradeep Sharma and are registered in the name of his wife, Shrimati Swikriti Sharma. The fourth floor is used as the registered office of the P.S. Foundation, and the remaining first and second floors are rented to Shri Pujari and Shri Singh, who run Hotel Sai Leela Grand from the premises. The hotel is used as a quarantine facility for air passengers arriving at Mumbai International Airport. One person named Manish Soni stayed in the hotel in the second week of May 2021, and KW‑13 became acquainted with Manish Soni during that period., The statement of KW‑13 reveals that Santosh Shelar (A‑6) was an influential person, very close to the appellant, and a regular visitor of the P.S. Foundation, and that during Navratri celebrations, when banners of the P.S. Foundation were put up, they contained the photograph of Santosh Shelar. KW‑13 further stated that Santosh Shelar has been a regular contact person of the appellant and had helped the appellant during the elections at Nalasopara by organizing manpower for the appellant's election rallies. According to KW‑13, the appellant used to call Santosh Shelar through KW‑13's phone during the period 28‑02‑2021 to March 2021, which is exactly the period when Mansukh Hiren was eliminated. KW‑13's statement also shows that Santosh Shelar was called by the appellant to his office many times and that, on many occasions, Santosh Shelar was accompanied by another person, Anand Jadhav (A‑7)., The prosecution has also relied upon call detail records from 09‑05‑2021 to 22‑06‑2021 to show that the appellant and Santosh Shelar were continuously in touch after the murder of Mansukh Hiren. KW‑13 further stated that the appellant would tell him what type of call to make, whether regular or WhatsApp, to Santosh Shelar (A‑6), who allegedly eliminated Mansukh Hiren with the help of other accused. He provided details of which phones and how calls were made by the appellant to Santosh Shelar. It is also pertinent to note that Santosh Shelar had asked Manish Soni to purchase one simple mobile phone and two activated new SIM cards on 01‑03‑2021, which he purchased and handed over to Santosh Shelar. One of the SIM cards was handed over by Santosh Shelar to the appellant, which was used by the appellant to make calls to Santosh Shelar. The explanations offered by the appellant are prima facie his defences and will have to be tested during his trial., Considering the material on record, the same, prima facie, points to the complicity of the appellant in the murder of Mansukh Hiren. The possibility that the appellant, a retired police officer, having clout, tampered with witnesses cannot be ruled out. It is also pertinent to note that the appellant was facing prosecution for offences punishable under Section 302, etc., in an encounter case. Although the appellant was acquitted of those offences after a full‑fledged trial, an appeal against the acquittal of the appellant has been filed by the State of Maharashtra and has been admitted., Considering all that is stated hereinabove, this is not a fit case to grant the appellant bail. The appeal is accordingly dismissed., It is made clear that the observations made herein are prima facie, only for the purpose of deciding the appellant's prayer for bail, and as such, the Bombay High Court shall decide the case on its own merits, in accordance with law, uninfluenced by the observations made in this judgment.
id_1724	0	Through: Mr. J.K. Gupta, Advocate versus Through: Ms. Aditi Saraswat, Advocate for Mr. Jawahar Raja, Additional Standing Counsel (Civil) Government of National Capital Territory of Delhi for Respondents 1 to 3. Mr. Akhil Mittal, Standing Counsel for Mr. Vivek Kumar, Advocate for East Delhi Municipal Corporation., This contempt petition alleges contumacious and wilful disobedience by the respondents of the directions contained in the order dated 25 September 2019, passed by the Delhi High Court in W.P.(C) 10368/2019, which was a Public Interest Litigation instituted by the petitioner for ensuring that the problem of stray cattle, monkeys, dogs and other such animals on the road and municipal areas in the city are properly dealt with., Having heard counsel for both sides and looking to the facts and circumstances of the case, it appears that previously two writ petitions, being W.P.(C) 3791/2000 as well as W.P.(C) 14175/2005, were preferred, mainly for the purposes that gaushalas and/or gausadans may be maintained properly by the respondents. Care was to be taken of stray cattle, and a policy was to be evolved by the respondents so that stray cattle may not go on the road and cause accidents. Counsel for the petitioner has taken the Delhi High Court to Annexure B to the memorandum of this petition and the orders passed in these writ petitions, more particularly the order dated 10th November 2005. Counsel appearing for the petitioner has also submitted that in the present writ petition, not only difficulties faced by gaushalas and gausadans are highlighted, but also the difficulties created by monkeys, and it is submitted that the respondents should have some policy to take care of these monkeys at monkey shelters. The same is the case with stray dogs. Several suggestions have also been made by counsel for the petitioner about sterilisation programmes for birth control etc., and for providing anti‑rabies vaccination to Government Hospitals., Having heard counsel for both sides and looking to the facts and circumstances of the case, it appears that it will suffice, for the disposal of the writ petition, in light of the earlier orders dated 10th November 2005 passed by the Delhi High Court in W.P.(C) 14175/2005 and W.P.(C) 3791/2000, to direct the respondents to evolve a policy or scheme for controlling stray cattle, monkeys and stray dogs and to take action immediately for these stray cattle, dogs and monkeys on the roads and in court premises. We also direct the respondents to provide sufficient quantity of anti‑rabies vaccination to Government Hospitals/dispensaries at the earliest. We also direct the respondents to create a permanent committee or such other type of a body that will take care of street cattle, monkeys, stray dogs etc. Every time, the respondents cannot expect a constitution of a committee by the Court. If in one such matter, a committee is constituted, it is enough guidance for the respondents to constitute committees by themselves. The Delhi High Court does not want to do the work of the Executive. We expect, from the respondents, that a committee or other type of body will be constituted immediately, in regards to stray cattle, stray dogs, monkeys etc., so that they may evolve some scheme or policy on how to control these stray cattle, street dogs and monkeys and the action will be initiated immediately. Simultaneously, it is the duty of the respondents to provide anti‑rabies vaccination to Government Hospitals/dispensaries, which shall be provided at the earliest. We also expect from the respondents that they shall carry out all the directions given by the Delhi High Court vide order dated 10th November 2005, in W.P.(C) 14175/2005 and W.P.(C) 3791/2000., The contempt petition alleges that there has been no sufficient compliance with the aforesaid directions issued by the Delhi High Court., In this contempt petition, on 7 March 2022, the following order was passed: The hearing was conducted through hybrid mode (physical and virtual hearing)., The learned Standing Counsel for the North Delhi Municipal Corporation (North DMC), upon instructions, states that 3,581 cattle have been impounded from the streets under its jurisdiction. They have been handed over to the gaushalas maintained by the Government of National Capital Territory of Delhi. She submits that after the case was passed over this morning, about 25 cattle have been impounded from the streets and will be kept in a cattle pound or otherwise be transferred to the gaushalas., The learned Additional Standing Counsel for the Government of National Capital Territory of Delhi states, upon instruction from the Director, Animal Husbandry, that presently five gaushalas are being maintained by the Government of National Capital Territory of Delhi, of which one is directly maintained by the Government, while the other four are by private agencies on a licence basis. Approximately 17,500 cattle are being housed and cared for in the said gaushalas. Details about the same, month‑wise and year‑wise, are to be brought on record before the next date., The Director further informs that the earlier policy has changed; now once the cattle is brought into the gaushala, it is not released to the owner. He also assures the Delhi High Court that an adequate number of veterinarians and trained personnel are available at the gaushalas to take care of the destitute cattle. An audit report in this regard is to be filed within four weeks., The Delhi High Court is assured by the learned counsel for the Corporation that the process of gathering and impounding cattle from the streets will be continued in right earnest and within two weeks all cattle shall be removed from the streets under its jurisdiction., Renotify on 17 May 2022., Thereafter, several status reports have been filed in the present case. The latest status report, titled as an updated status report filed under an index dated 18 August 2023, avers, inter alia, that a total of nine stretches of land belonging to the Gaon Sabha were allocated to various NGOs for establishment and running of gausadans in Delhi as per Cabinet Decision dated 29 July 1994; six gausadans were accordingly established in different parts of Delhi; as the licence of one of the gausadans was cancelled on 3 May 2019 and the trustee/management committee of another gausadan surrendered the gausadan in 2004, the municipal authorities were in the process of framing rules and expression of interest for allotment, improvement and running of the gausadans, following which a fresh allotment of gausadans would be undertaken; presently, the estimated cattle population in Delhi after the COVID‑19 pandemic is around 83,671; and the four gaushalas present in the city contain sufficient space to accommodate abandoned cattle., The affidavit provides the details of presently operating gaushalas/gausadans with their capacity as follows: 1. Gopal Gausadan, Village Harewali near Bawana, Delhi – 1100 acres, land capacity 3915, number of cattle as on 31 July 2023: 3225, vacant capacity 3323. 2. Dabur Hare Krishna Gaushala, Village Surherra, Najafgarh, New Delhi – 1100 acres, land capacity 4324, number of cattle: 5160, vacant capacity 2927, 2233. 3. Shri Krishan Gaushala, Sultanpur Dabas, Bawana‑Kanjhawala Road, Delhi – 1100 acres, land capacity 3936, number of cattle: 7740, vacant capacity 8234. 4. Manav Gausadan, Village Rewla Khanpur, Najafgarh, Delhi – 1100 acres, land capacity 4316, number of cattle: 3440, vacant capacity 3142, 298. 5. Ghummanhera Gaushala, Village Ghummanhera, Najafgarh Block, New Delhi – 1100 acres, land capacity 4319, number of cattle: 4085, vacant capacity 4085. Total 110 acres, 23650 cattle, 17626 vacant, 6616., The compliance report of the order dated 15 March 2023 is as follows: The Honourable Delhi High Court, while disposing of W.P.(C) No.10368/2019 vide order dated 25 September 2019, issued certain directions to the respondents to take steps as given under Paragraphs 3 and 4 of the said order. Out of six respondents, three respondents were Commissioners of erstwhile North DMC, South DMC and East DMC. Consequent upon the unification of the Municipal Corporation of Delhi in May 2022, the matter is being looked after by the Department of Veterinary Services of the unified Municipal Corporation of Delhi., In order to control the menace of stray cattle on the roads, the department has twenty cattle‑catching trucks in all twelve zones of the Municipal Corporation of Delhi with adequate staff. During the period w.e.f. 2020‑21 to 2023‑24 (up to July 2023), a total of 36,915 stray cattle have been impounded by the Department of Veterinary Services and the same were sent to the four gaushalas/gausadans for further feeding and management. These gaushalas/gausadans, where the Municipal Corporation of Delhi deports the stray cattle after impounding them from the roads, are running under the administrative control of the Department of Animal Husbandry, Government of National Capital Territory of Delhi. The year‑wise details of stray cattle impounded by the Municipal Corporation of Delhi for the period w.e.f. 2020‑21 to 2023‑24 (up to July 2023) are annexed as Annexure A., In order to control the population of stray dogs, the Municipal Corporation of Delhi is carrying out a programme of sterilisation and immunisation of stray dogs pursuant to the Animal Birth Control (Dog Rules) 2001 (now 2023) issued by the Animal Welfare Board of India, a statutory body of the Government of India. The work of sterilisation and immunisation of stray dogs is presently being done at sixteen centres. During the period w.e.f. April 2020‑21 to 2023‑24 (up to June 2023), 207,035 stray dogs have been sterilised and immunised against rabies at the sixteen dog sterilisation centres; the year‑wise details of sterilised and immunised stray dogs are annexed as Annexure., The monkey is a protected animal under the Wildlife Protection Act, 1971, which is the subject matter of the Wildlife Department, Government of National Capital Territory of Delhi. In compliance with the directions issued by the Honourable Delhi High Court, the work of trapping monkeys is being done by the Municipal Corporation of Delhi through ten monkey catchers engaged by it. The monkeys, after being caught by the engaged contractors, are released in the Asola Bhati Mines Wildlife Sanctuary, as per directions of the Honourable Delhi High Court. The Wildlife Department, Government of National Capital Territory of Delhi provides food to these monkeys relocated at Asola Bhati Mines. During the period w.e.f. 2020‑21 to 2023‑24 (up to July 2023), a total of 4,971 monkeys have been trapped by the Municipal Corporation of Delhi and relocated to the Asola Bhati Mines; the details are annexed as Annexure C., The matter of providing a sufficient quantity of anti‑rabies vaccine to Government Hospitals/dispensaries relates to the Department of Animal Husbandry, Government of National Capital Territory of Delhi., In order to look after the matter of stray cattle, monkeys and stray dogs, three committees have been constituted. As per directions of the Honourable Delhi High Court issued in the matter of W.P.(C) No.3791/2000, Common Cause Society Vs. Union of India & Ors., a two‑member coordination committee has been constituted to ensure the eradication of stray cattle and illegal dairies from urban areas: Deputy Commissioner of the concerned municipal zone and Deputy Commissioner of police of the respective district. The Honourable Delhi High Court vide order dated 14 March 2007 in the matter of New Friends Colony Residents Welfare Association & Union of India & Ors. in W.P.(C) No.2600/2001 has constituted an Enforcement Committee comprising the following members: Chief Wildlife Warden, Government of National Capital Territory of Delhi; Director (Veterinary Services), Municipal Corporation of Delhi; Director (Enforcement), New Delhi Municipal Council; and Sonya Ghosh (from Citizens for the Welfare & Protection of the animals). In order to monitor the issues and frame the policy relating to stray dogs, a committee was constituted vide order No. 0036/DD(VS)/RCP/SDMC/2012 dated 04 December 2012, comprising: Commissioner, North DMC (President); Commissioner, South DMC (Vice President); Commissioner, East DMC (Vice President); Additional Commissioner (In‑charge Veterinary Services Department), SDMC (Member); Additional Commissioner (In‑charge Veterinary Services Department), NDMC (Member); Additional Commissioner (In‑charge Veterinary Services Department), EDMC (Member); Director (Veterinary Services), SDMC (Member); Director (Veterinary Services), NDMC (Member); Director (Veterinary Services), EDMC (Member); Deputy Director (Veterinary Services)/Rabies Control Programme, East DMC (Member); Director, Animal Husbandry, Government of National Capital Territory of Delhi (Member); Medical Superintendent, Veterinary Hospital, Moti Bagh, NDMC (Member); Director, Sanjay Gandhi Animal Care Centre, Raja Garden (NGO Member); Vice President, Friendicose‑SECA (NGO Member); Chairperson, Circle of Animal Lovers (NGO Member); Chairperson, Sonadi Charitable Trust (NGO Member); Joint Secretary (Information), Ministry of Commerce & Industries, Government of India (Member); Under Secretary (Animal Welfare), Ministry of Environment & Forests, Government of India (Member); Deputy Director (Veterinary Services)/Rabies Control Programme, North DMC (Member Secretary); Deputy Director (Veterinary Services)/Rabies Control Programme, South DMC (Treasurer)., The assertions contained in the above status reports suffice to constitute substantial compliance with the directions contained by the Delhi High Court in its order dated 25 September 2019. The order dated 25 September 2019 has to be meaningfully understood. It cannot be expected that the municipal authorities can completely wipe out, from the roads and municipal areas of Delhi, all stray animals, whether cattle, monkeys, dogs or other animals. The duty of the municipal authorities is to take concerted, sincere and optimum steps to ensure that such animals are rehabilitated and do not pose a menace to residents of Delhi or to the traffic plying on the roads., In any event, in view of the aforesaid status reports filed by the respondents, it cannot be said that there is contumacious or wilful disobedience on their part in complying with the directions contained in the order dated 25 September 2019. There is a distinction between contempt and enforcement., In the event that the petitioner is still unhappy with the measures that have been taken, it would be open to him to agitate the said grievance in appropriate proceedings., Reserving liberty with the petitioner to do so, the notice of contempt issued by the Delhi High Court is discharged. The contempt petition is disposed of.
id_1725	0	Whether reporters of local papers may be allowed to see the judgment? To be referred to the reporter or not? Whether their Lordships wish to see the fair copy of the judgment? Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder? Versus Appearance: Mr. B. S. Soparkar (Advocate No. 6851) for the petitioner(s) No. 1. Respondent(s) No. 1, 2. Date: 17/01/2023., The petitioner, by way of this petition under Article 226 of the Constitution of India, seeks publication of the Rules framed by the respondents under Section 33 of the Gujarat Police Act, 1951 (hereinafter referred to as the Police Act). The petitioner further seeks publication and online access to all the Rules, Regulations, Instructions, Manuals and Records held by Respondent No. 1 or under its control or used by its employees for discharging its functions. It is the case of the petitioner that failure to publish such rules amounts to illegality of the executive action, violation of democracy, rule of law and natural justice, and infringement of the petitioner’s rights to free speech and expression and assembly enshrined in Article 19 of the Constitution and the right to life enshrined in Article 21 of the Constitution., On 12 December 2019, the Citizenship Amendment Act, 2019, was assented to by the President and published in the official gazette. Some residents of Ahmedabad wished to express their opinion on this amendment in a peaceful manner. The petitioner sought permission for an assembly and peaceful protest on 29 December 2019 between 5 p.m. and 7 p.m. on the footpath of the road adjacent to Kanoria Centre for Arts & Gufa of Ahmedabad. The request was made to the Police Inspector, Gujarat University Police Station, by a letter dated 25 December 2019. On 28 December 2019, the petitioner was informed by the Samaj Yadi that permission for such assembly and peaceful protest was not allowed and was rejected on the grounds of law and order and traffic problems. In violation of the order, the petitioner held an assembly and was detained for a few hours., With a view to know the Rules under which the permission of the petitioner was processed, the petitioner addressed a letter to Respondent No. 1, Commissioner of Police, Ahmedabad, asking for a copy of the complete rules framed under Section 33(1)(o) of the Police Act and, secondly, whether a request that was rejected was so done under any of the Rules or Regulations. On 6 March 2020, the petitioner received a reply that the request for information was refused. The refusal of information and the action of Respondent No. 1 are challenged on the ground of being grossly bad, illegal, violative of principles of natural justice, rule of law and democracy., Mr. B. S. Soparkar, learned counsel appearing for the petitioner, would submit as follows: Section 33(1) of the Gujarat Police Act empowers the Commissioner, within his area of charge, to make, alter or rescind Rules. Clause (o) of the section empowers such officer to make Rules regulating the conduct and behaviour of persons constituting assemblies and processions on or along the streets, prescribing, in the case of processions, the routes, the order and the times at which the same may pass. Such Rules are framed subject to the provisions of Section 33(6) of the Police Act, which provides that a Rule made shall be published in the Official Gazette and in the locality affected thereby., Reading Section 4(1)(b) of the Right to Information Act, Mr. Soparkar would submit that this provision casts an obligation on the public authority to proactively publish seventeen kinds of information, including the procedure followed in the decision‑making process, the norms set for discharge of its functions and the Rules and Regulations under its control or used by its employees. He therefore submits that not publishing and proactively disclosing the Rules and orders framed under Section 33(1) of the Police Act is a violation of Section 33(6) of the Police Act as well as Section 4 of the Right to Information Act., If the website and the RTI booklet are accessed, some of the information is classified as “for departmental use only”. Even the screenshot of the website indicates that only the names of the Acts under which the police authorities are required to act are displayed, without the actual documents being made available. The counsel submits that the necessity of publication of law is a part of the rules of natural justice and the petitioner is entitled to know the laws of the land., The enforcement of the Right to Information Act has been repeatedly emphasized as a facet of Article 19(1)(a) of the Constitution of India, which guarantees freedom of speech. The counsel relies on several decisions which declare that transparency is the key for the functioning of a healthy democracy. In support of his submission, he relies on State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865; S. P. Gupta v. President of India & Ors., AIR 1982 SC 149; Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspaper Bombay Pvt. Ltd. & Ors., AIR 1989 SC 190; Union of India & Anr v. Association of Democratic Reforms, AIR 2002 SC 2112., By reading the very preamble of the Right to Information Act, it is evident that the Act was enacted with the spirit that democracy requires an informed citizenry and transparency of information, which are vital to its functioning, to contain corruption and to hold governments and their instrumentalities accountable. In support of his submission, Mr. Soparkar relies on the decision of Reserve Bank of India v. Jayantilal N. Mistry, (2016) 3 SCC 525., When information was sought, it was denied on the ground that, in accordance with the Notification dated 25 October 2005, the Special Branch, which decides the procedure of assemblies and processions, is exempted from such disclosure under the powers conferred by Section 24 of the Right to Information Act. The counsel submits that such exemption is not germane to the disclosure of the information because the procedure may be the application for permission processed by the authorities in tandem with the Special Branch, which itself does not prohibit publication of information., Mr. Rohan Shah, learned Assistant Government Pleader appearing for the State, raises preliminary objections to the maintainability of the petition. He submits that no fundamental or legal right of the petitioner has been violated by any action or inaction of the respondent. The petition seeking a direction to Respondent No. 1 to comply with the requirements of Section 4 of the Right to Information Act ought to be dismissed on the grounds of vagueness, ambiguity and absence of cause of action. The permission sought for the assembly on 28 December 2019 was rejected, and that order is not challenged. The application seeking the Rules framed under Section 33 was rejected on 6 March 2020. The prayer for publication of Rules and norms is completely different from the main application and therefore the petition should be dismissed. Moreover, the petition is a public interest litigation and an alternative remedy is available under the Right to Information Act, including appeal to the senior officer under Section 19(1) and a second appeal before the State Information Commission. Hence, the petitioner should not approach the Court directly for a writ of mandamus., The Assistant Government Pleader further submits that the petitioner has adopted a clever approach to avoid the procedure under the Right to Information Act. The Special Branch, Ahmedabad, intimated the competent authority under the Act regarding the rejection of disclosure. The Public Information Officer, in turn, informed the petitioner of the rejection. To avoid the appeal procedure, the petitioner, without seeking the alternative remedy, is seeking indulgence of the Gujarat High Court under Article 226 of the Constitution of India., Mr. Shah also submits that the petitioner has not come with clean hands. She materially suppressed the fact that permission to hold an assembly on 29 December 2019 for fifty to sixty people was denied and that she conducted an assembly during peak hours, disobeying the notification dated 24 December 2019, which led to disruption of traffic. When the petitioner sought permission by her application dated 26 December 2019, Respondent No. 1 had issued a notification on 24 December 2019 exercising powers under Section 144 of the Code of Criminal Procedure read with Section 37(3) of the Gujarat Police Act, prohibiting more than four persons from assembling. The request was rejected after opinion was obtained from the respective police station. Therefore, the rejection was not under Rules framed under Section 33 of the Police Act. The Special Branch of the Commissioner of Police is a security and intelligence organization exempted under the Gazette Notification dated 25 October 2005, and Section 24(4) of the Right to Information Act entitles the government not to disclose the information. Consequently, the petitioner cannot seek a direction for disclosure of information that the authorities are not statutorily bound to disclose., In rejoinder, Mr. Soparkar submits that essentially the petitioner wants to know the law of the land concerning the Rules that permit a peaceful demonstration, and the petitioner is entitled to know such Rules. The Rules are framed under Section 33 of the Act, as evident from the decision of the Hon'ble Supreme Court in Himmat Lal K. Shah v. Commissioner of Police, (1973) 1 SCC 227, which declared Rule 7 of the Rules framed under Section 33 as void. The decision in Gujarat Majdoor Panchayat v. State of Gujarat & Anr., 1988 (2) GLR 1005, shows that regulations for conduct of assemblies and processions were framed by the Ahmedabad Police Commissionerate in 1975., Mr. Soparkar therefore submits that Rules are framed under Section 33. The authority, Respondent No. 1, is a public authority under Section 2(h) of the Right to Information Act, and the petitioner is entitled to know such Rules. There is a violation of natural justice in view of the petitioner’s right to know all Rules and Regulations. As held by the Hon'ble Supreme Court in Central Board of Secondary Education v. Aditya Bandopadhyay, (2011) 8 SCC 497, information can be divided into three categories, one of which promotes transparency and accountability in the working of every public authority, and for such information there is a special responsibility on public authorities to publish and disseminate it. In light of the decision in State of Haryana v. Subash Chander Marwaha & Ors., (1974) 3 SCC 220, the petitioner is entitled to a writ of mandamus for the refusal to provide such information., Having considered the submissions of the learned counsels, it is evident that the power to regulate the conduct and behaviour of persons constituting assemblies and processions along the streets, and to prescribe the routes, order and times of passage, can be exercised by Rules framed under Section 33(1)(o) of the Gujarat Police Act, 1951. Section 33(1)(o) reads: “(o) regulating the conduct of and behaviour or action of persons constituting assemblies and processions on or along the streets and prescribing, in the case of processions, the routes, the order in which and the times at which the same may pass.” Further, such Rules or orders are subject to Section 33(6), which reads: “(6) The power of making, altering or rescinding Rules under this section shall be subject to the condition of the Rules being made, altered or rescinded after previous publication, and every Rule made or alteration or rescission of a Rule made under this section shall be published in the Official Gazette and in the locality affected thereby by affixing copies thereof in conspicuous places … or by proclaiming the same by the beating of drum or by advertising the same in such local newspapers in English or in the local language, as the authority making, altering or rescinding the Rule may deem fit or by any two or more of these means or by any other means it may think suitable. Provided that any such Rules may be made, altered or rescinded without previous publication if the Commissioner, the District Magistrate, or, as the case may be, the District Superintendent, is satisfied that circumstances exist which render it necessary that such Rules or alterations therein or rescission thereof should be brought into force at once.”, These provisions must be read in light of certain provisions of the Right to Information Act, 2005. The preamble of the Act indicates that the Constitution of India has established a democratic republic. Democracy requires an informed citizenry and transparency of information, which are vital to its functioning, to contain corruption and to hold governments and their instrumentalities accountable to the governed. The definition of “information” in Section 2(f) of the Act reads: “(f) information means any material in any form, including records, documents, memos, e‑mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” Accordingly, information means any material in any form, including records, documents, opinions, advices, etc., which can be accessed by a public authority. It is not disputed that Respondent No. 1 is a public authority. Section 4 of the Act provides for the obligations of public authorities. Section 4(1) states that every public authority shall (a) maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information; (b) publish within one hundred and twenty days from the enactment of the Act the particulars of its organisation, functions and duties, the powers and duties of its officers and employees, the procedure followed in the decision‑making process, the norms set for the discharge of its functions, the Rules, regulations, instructions, manuals and records held by it or under its control or used by its employees for discharging its functions, a statement of the categories of documents that are held by it or under its control, and other prescribed information; (c) publish all relevant facts while formulating important policies or announcing decisions which affect the public; and (d) provide reasons for its administrative or quasi‑judicial decisions to affected persons. Sub‑section (2) requires a constant endeavour by every public authority to provide as much information suo motu to the public at regular intervals through various means of communication, including the internet, so that the public has minimum resort to the use of this Act to obtain information., In light of Section 4, the seventeen kinds of information, including the procedure followed in the decision‑making process, the norms set for discharge of functions and the Rules and regulations held by the authority, must be provided. The refusal by Respondent No. 1 to disclose the Rules, despite the website showing only a list of the number of Rules, Acts, regulations and manuals without providing the actual documents, is contrary to the mandate of Section 33(6) of the Police Act, which requires publication of the Rules. The respondent cannot refuse to produce such Rules or orders, as the purpose of the Act is to promote free flow of information. As quoted by counsel, Lon L. Fuller said there can be no greater legal monstrosity than a secret statute. James Madison observed that a popular government without popular information is a prologue to a farce or tragedy. Therefore, the Rules and orders framed under Section 33 of the Police Act, which are held or under the control of the employees for discharging functions, must be published on the website and made accessible to the public., As held by the Hon'ble Supreme Court in State of Uttar Pradesh v. Raj Narain, “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act… The right to know, which is derived from the concept of freedom of speech, though not absolute, must be guarded against secrecy that has repercussions on public security.” In S. P. Gupta (supra), the Court observed that the concept of an open government emanates from the right to know implicit in the right of free speech and expression guaranteed under Article 19(1)(a). In Reliance Petrochemicals Ltd. (supra), the Court noted that the right to know is a basic right essential for participatory development and democracy, flowing from Article 21. In Union of India & Anr (supra), the Court stated that the right to get information in a democracy is a natural right flowing from the concept of democracy. In Reserve Bank of India v. Jayantilal N. Mistry (supra), the Court emphasized that an informed citizen can reason and evaluate the actions of the legislature and executives, which is vital for a participative democracy., In accordance with the mandate of Section 4 of the Right to Information Act and the fundamental rights guaranteed to the petitioner under Articles 19 and 21 of the Constitution of India, the Gujarat High Court is of the opinion that the petitioner is entitled to the information sought., Regarding the preliminary objections raised on behalf of the State, the petition is maintainable. The petition does not challenge the rejection of permission to hold a rally; it seeks the Rules framed under Section 33 of the Gujarat Police Act, 1951. The alternative remedy under the Right to Information Act is available, but the petitioner is entitled to approach the Gujarat High Court under Article 226 for a direction to disclose the Rules, as the refusal impinges upon the petitioner’s right to know the law of the land. The notification dated 24 December 2019, issued under Section 144 of the Code of Criminal Procedure read with Section 37 of the Police Act, is unrelated to the Rules framed under Section 33. The exemption claimed under the Notification dated 25 October 2005, which exempts the Special Branch from disclosure, does not bar the disclosure of the Rules themselves, which are not covered by the exemption. Consequently, the contentions of the State on preliminary grounds must be rejected, and the petitioner’s right to information under the Right to Information Act must be upheld.
id_1725	1	That there are no rules under Section 33 of the Gujarat Police Act and therefore no information can be so provided as the rejection was under another provision seems to be a misconceived proposition of the State. Decisions cited by the learned counsel for the petitioner in the case of Himmat Lal K Shah (supra) and in the case of Gujarat Majdoor Panchayat (supra) indicate that the respondent Number 1 does have the power and also does publish rules dealing with regulating the conduct of processions and assemblies. If that be so is a fact which is not denied, the petitioner is entitled to have access to such Rules, Regulations, Instructions, Manuals and Records in light of the provisions of Section 4 of the Right to Information Act., What is evident therefore that the provisions of the Right to Information Act as set out by the decision in the case of Aditya Bandhopadhyay (supra) indicates that the provisions of the Act and the scheme divides information into three categories. It will be in the fitness of things to reproduce paragraph 59 of the decision in the case of Aditya Bandhopadhyay (supra), which reads asunder: 59. The effect of the provisions and scheme of the Right to Information Act is to divide “information” into the three categories. They are: (i) Information which promotes transparency and accountability in the working of every public authority, disclosure of which may also help in containing or discouraging corruption (enumerated in clauses (b) and (c) of Section 4(1) of the Right to Information Act). (ii) Other information held by public authority (that is all information other than those falling under clauses (b) and (c) of Section 4(1) of the Right to Information Act). (iii) Information which is not held by or under the control of any public authority and which cannot be accessed by a public authority under any law for the time being in force. Information under the third category does not fall within the scope of the Right to Information Act. Section 3 of the Right to Information Act gives every citizen the right to “information” held by or under the control of a public authority, which falls either under the first or second category., In regard to the information falling under the first category, there is also a special responsibility upon public authorities to suo motu publish and disseminate such information so that it will be easily and readily accessible to the public without any need to access them by having recourse to Section 6 of the Right to Information Act. There is no such obligation to publish and disseminate the other information which falls under the second category., Therefore, what is evident on conjoint reading of Section 4(1)(b), Section 4(2), Section 4(3) and Section 4(4) of the Right to Information Act is that the petitioner is entitled and so the respondent is under a legal duty to publish information specified in Section 4(1)(b) of the Act and evidently, the petitioner is entitled to know the rules framed under Section 33 of the Gujarat Police Act, so as to know the reasons by which the petitioner was denied permission as in the absence of such knowledge, the petitioner will be handicapped in challenging such permission which will be a direct infringement of his fundamental right and a statutory right to know and access the law of the land which he violated., Desirous of seeking such information, especially the Rules framed under Section 33 of the Gujarat Police Act, the petitioner in her right is entitled to a writ of mandamus for a direction to seek such information, especially when it will help what is evidently the purpose of the Right to Information Act i.e. to receive information so as to know what is the procedure followed in the decision making process, the norms set by it for the discharge of the functions by the State and the Rules and Regulations empowering such decision making process., For all the aforesaid reasons therefore, the petition is allowed. The respondent Number 1 is directed to publish all the rules and orders framed under Section 33 of the Gujarat Police Act on the website in the manner that the same are made available and accessible to the public and further direction is issued that the respondent Number 1 comply with the requirements of Section 4 of the Right to Information Act and publish and make available on their website the texts of all the Rules, Regulations, Instructions, Manuals and Records held by it or under its control or used by its employees for discharge of its functions. No order as to costs.
id_1726	0	Leave granted. A disquieting trend emerging over the years which has gained pace in recent times necessitates this opinion. It has been found by us in multiple cases in the past several months that upon First Information Reports being lodged inter alia under section 420 of the Indian Penal Code, 1860 (the IPC, hereafter), judicial proceedings initiated by persons accused of cheating, to obtain orders under Section 438 of the Code of Criminal Procedure, 1973 (the CrPC, hereafter) are unwittingly being transformed into processes for recovery of the quantum of money allegedly cheated and the courts driven to impose conditions for deposit or payment as a prerequisite for grant of pre‑arrest bail. The present case is no different from the others and it is considered appropriate to remind the Delhi High Court and the Sessions Court not to be unduly swayed by submissions advanced by counsel on behalf of the accused in the nature of undertakings to keep in deposit or repay any amount while seeking bail under section 438 of the CrPC and incorporating a condition in that behalf for deposit or payment as a prerequisite for grant of bail., The bare facts relevant for a decision on this appeal, gathered from the impugned judgment of the Delhi High Court, are these. The appellant before us is the owner of an immovable property. With an intention to redevelop the same, he entered into three agreements with one Ashwani Kumar (the builder, hereafter) dated 10 December 2018, 19 December 2018 and 30 January 2019. Under the agreement dated 19 December 2018, the builder was required to construct a multi‑storied building in which the appellant would have ownership rights in respect of the third floor and the upper floor, apart from Rs 55,00,000 (Rupees fifty‑five lakh) to be paid to him by the builder, whereas the builder would have rights to deal with the first and the second floors together with other rights as described therein. In pursuance of that agreement, the builder entered into an agreement to sell and purchase (bayana) dated 14 December 2018 with Vinay Kumar and Sandeep Kumar (the complainants, hereafter) in respect of the second floor of the proposed building (without roof rights) for a sum of Rs 60,00,000 (Rupees sixty lakh). The complainants allegedly paid to the builder Rs 11,00,000 (Rupees eleven lakh) – Rs 1,00,000 as token money and Rs 10,00,000 as earnest money – at the time of execution of the agreement dated 14 December 2018. Thereafter, on the instructions of the builder, the complainants on different dates allegedly made payments of additional amounts to the appellant as well as the builder, in cash as well as by cheques, totaling Rs 35,00,000 (Rupees thirty‑five lakh)., Allegedly, the complainants failed to comply with the terms and conditions of the agreement dated 14 December 2018, triggering institution of a civil suit by the builder against the complainants seeking cancellation of such agreement and forfeiture of the amount of Rs 13,00,000 (Rupees thirteen lakh). This was purportedly upon invocation of clause 8 of the said agreement. It is also a matter of record that the builder has instituted another civil suit inter alia against the appellant for specific performance of the agreements dated 10 and 19 December 2018. However, from the materials on record, we have failed to ascertain the dates of institution of the civil suits., The complainants were not handed over possession of the second floor which they intended to purchase. As late as 18 November 2021, the complainants sought to put the investigative machinery in motion by lodging a complaint with the Station House Officer, Police Station Gulabi Bagh, Delhi. The complaint was registered as First Information Report No. 322 of 2021 under sections 420, 406 and 34 of the IPC. In that FIR, the appellant, the builder and a broker were shown as accused., It is worthwhile to note from the FIR that despite there being an agreement to sell executed by and between the builder and the complainants, the complainants had made payment of Rs 17,00,000 (Rupees seventeen lakh) by issuing cheques favouring the appellant allegedly on the instructions of the builder., Since the complainants had effected payment of a substantial amount of money to the appellant and the builder had failed to deliver possession of the second floor of the proposed building, the complainants felt cheated and urged the police to investigate the crime committed inter alia by the appellant and the builder., Apprehending arrest, the appellant moved the Metropolitan Magistrate Court‑02 (Central) seeking an order under section 438 of the CrPC. Initially, on 30 November 2011, the Presiding Officer granted interim protection from arrest to the appellant, subject to his cooperating with the investigating agency, upon being informed by the investigating officer that no agreement was executed by and between the appellant and the complainants. However, for reasons assigned in the subsequent order dated 18 January 2022, the application was dismissed by the Presiding Officer and the interim protection earlier granted to the appellant was withdrawn., In the background of the aforesaid facts and circumstances, the appellant approached the Delhi High Court seeking an order under section 438 of the CrPC. A similar approach was made by the builder. The Delhi High Court by its common order dated 24 November 2022 granted bail to the appellant and the builder, subject to certain conditions. One of the conditions imposed reads as follows: (e) as undertaken, the petitioner/builder Ashwani Kumar shall deposit a sum of Rs 13,00,000 (Rupees thirteen lakh) and the owner Ramesh Kumar shall deposit a sum of Rs 22,00,000 (Rupees twenty‑two lakh), with the learned Trial Court, in the form of Fixed Deposit Receipt in the name of the Court initially for a period of one year with an automatic renewal clause, within four weeks., Expressing his difficulty in arranging funds to deposit Rs 22,00,000 (Rupees twenty‑two lakh), the appellant applied before the Delhi High Court under section 482 of the CrPC seeking an extension of time to make the requisite deposit. By an order dated 8 February 2023, the application was disposed of by the Delhi High Court granting an extension of time by three days, failing which it was directed that anticipatory bail granted to the appellant shall automatically stand revoked., The appellant is aggrieved by the aforesaid condition (clause (e) of paragraph 9.0 of the impugned judgment and order) imposed by the Delhi High Court and is now before us seeking revocation of the same while urging that the other part of the order be maintained., According to counsel for the appellant, the condition imposed is onerous and is not called for having regard to the satisfaction recorded by the Delhi High Court in paragraph 8.0 that the appellant has joined investigation and that both the appellant and the builder are ready to provide any clarification or explanation for the purpose of completion of investigation. It is further contended on behalf of the appellant that he is a victim of a conspiracy hatched by and between the builder and the complainants with the result that he is still unable to enjoy his own property which was required to be redeveloped by the builder within the time stipulated in the relevant agreement. Finally, it has been contended that having regard to the decision of the Supreme Court of India in Munish Bhasin v. State (NCT of Delhi), the impugned condition imposed for grant of bail requiring deposit of Rs 22,00,000 in the form of Fixed Deposit Receipt in the Trial Court is bad in law and liable to be set aside., The appeal has been opposed by counsel for the State. According to him, the impugned condition was imposed because the appellant through his counsel had volunteered to keep in deposit Rs 22,00,000 without prejudice to his rights and contentions. Now that the Delhi High Court had proceeded to make its order based on such undertaking and also that the appellant had applied for an extension of time which was granted, it is not an appropriate case where the Supreme Court of India should interfere in the exercise of its jurisdiction., Having heard the parties and on perusal of the materials on record, there seems to be little doubt that the appellant had volunteered to deposit Rs 22,00,000 without prejudice to his rights and contentions and that he had also applied for an extension of time to make such deposit which was granted; but having failed to arrange sufficient funds, he is questioning the condition imposed by the Delhi High Court for grant of pre‑arrest bail., In the course of hearing before the Delhi High Court, a status report was submitted with regard to the progress of investigation. Such report disclosed that the construction of the proposed building had progressed only up to the first floor and, therefore, the second and third floors were still not in existence. Consequently, neither the floor which the complainants intended to purchase nor the floors in respect of which the appellant could exercise his rights were complete., A striking feature of the case is that although the appellant through his counsel had undertaken to deposit a sum of Rs 22,00,000 with the Trial Court, the FIR version is that the appellant had received separate cheques in his name for a total amount of Rs 17,00,000 – Rs 5,00,000 on 20 December 2018, Rs 2,00,000 on 28 December 2018, Rs 4,00,000 on 28 December 2018, Rs 1,00,000 on 28 December 2018 and Rs 5,00,000 on 21 February 2019. That the appellant had received through cheques a total amount of Rs 17,00,000 was also noticed by the Presiding Officer while dismissing the appellant’s application by the order dated 18 January 2022. However, there can be no doubt that counsel on behalf of the appellant had submitted before the Delhi High Court that he was ready to deposit a sum of Rs 22,00,000, which prima facie exceeds what the appellant is alleged to have received from the complainants by cheques drawn in his favour on the instructions of the builder. We are not concerned at this stage with alleged payments made by the complainants to the builder., Legality of the impugned condition is what we are now tasked to examine and decide., It would be appropriate at this stage to note certain precedents governing the discretion of the courts to grant anticipatory bail. We start with Gurbaksh Singh Sibbia and others v. State of Punjab, a Constitution Bench decision of the Supreme Court of India. It was held that denial of bail amounts to deprivation of personal liberty and the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature. Section 438 is a procedural provision concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence. An over‑generous infusion of constraints and conditions not found in Section 438 can make its provisions constitutionally vulnerable because the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions., The Supreme Court of India in Mahesh Candra v. State of U.P. dealt with a case where the relevant high court had directed payment of Rs 2,000 to be made to the victim (daughter‑in‑law) as a condition for grant of anticipatory bail. The Court observed that it could not understand how the accused could be made liable to deposit Rs 2,000 per month for the maintenance of the victim and that while deciding a bail application, it is not the jurisdiction of the court to decide civil disputes between the parties. The matter was remitted to the high court to consider the bail application afresh on merit without imposing such a condition., The Supreme Court of India in Munish Bhasin (supra) observed that while exercising discretion to release an accused under Section 438, neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. The court may impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438, but the accused cannot be subjected to any irrelevant condition at all. Conditions imposed under Section 438 cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail., In Sumit Mehta v. State (NCT of Delhi) the High Court had granted anticipatory bail on the condition that the appellant, accused of offences punishable under sections 420, 467, 468 and 471 of the IPC, deposit an amount of Rs 1,00,00,000 in Fixed Deposit for anticipatory bail. The Supreme Court of India held that while exercising power under Section 438, the court is duty‑bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police. Any condition which has no reference to the fairness or propriety of the investigation or trial cannot be countenanced as permissible. The condition of depositing Rs 1 crore for six months was held to be onerous and unreasonable., We may next take note of two decisions of the Supreme Court of India of recent origin. In Dilip Singh v. State of Madhya Pradesh, the Court warned that by imposing the condition of deposit of Rs 41 lakh, the high court had virtually issued directions in the nature of recovery in a civil suit, which is not the purpose of criminal proceedings. In Bimla Tiwari v. State of Bihar, the Court reiterated that the process of criminal law, particularly in matters of grant of bail, is not akin to money‑recovery proceedings and that bail may be declined even if the accused has made payment or offers to make payment, and conversely may be granted irrespective of any payment., Law regarding exercise of discretion while granting a prayer for bail under Section 438 of the CrPC having been authoritatively laid down by the Supreme Court of India, we cannot but disapprove the imposition of a condition of the nature under challenge. Assuming that there is substance in the allegation of the complainants that the appellant (either in connivance with the builder or even in the absence of any such connivance) has cheated the complainants, the investigation is yet to result in a charge‑sheet being filed under section 173(2) of the CrPC, not to speak of the alleged offence being proved before the competent trial court. Sub‑section (2) of section 438 of the CrPC does empower the high court or the Sessions Court to impose such conditions while making a direction under sub‑section (1) as it may think fit, but the conditions must not be onerous, unreasonable or excessive. Inclusion of a condition for payment of money by the applicant for bail creates an impression that bail could be secured by depositing money alleged to have been cheated, which is not the purpose and intent of the provisions for grant of bail., Turning to the facts here, the version in the FIR, even if taken on face value, discloses payment through cheques of Rs 17,00,000 in the name of the appellant and not Rs 22,00,000. We have not been able to comprehend how the Delhi High Court arrived at the latter figure as payable by the appellant and why the appellant’s counsel agreed with such figure. Prima facie, there appears to be some sort of calculation error. Also, prima facie, there remains some doubt as to the conduct of the appellant in receiving cheques from the complainants without there being any agreement inter se. Be that as it may, the Delhi High Court ought to have realised that, having regard to the nature of dispute between the parties, which is predominantly civil, the process of criminal law cannot be pressed into service for settling a civil dispute. Even if the appellant had undertaken to make payment, which we are inclined to believe was a last‑ditch effort to avert losing his liberty, such undertaking could not have weighed in the mind of the Delhi High Court to decide the question of grant of anticipatory bail. The tests for grant of anticipatory bail are well delineated and stand recognised by passage of time., It also does not appear from the materials on record that the complainants have instituted any civil suit for recovery of money allegedly paid by them to the appellant. If, at all, the offence alleged against the appellant is proved resulting in his conviction, he would be bound to suffer penal consequences but despite such conviction he may not be under any obligation to repay the amount allegedly received from the complainants. This too is an aspect which the Delhi High Court exercising jurisdiction under section 438 of the CrPC did not bear in mind., Under the circumstances, we hold that the Delhi High Court fell in grave error in proceeding on the basis of the undertaking of the appellant and imposing payment of Rs 22,00,000 as a condition precedent for grant of bail., We are not unmindful of the fact that the Delhi High Court was led by the appellant himself to an order granting bail with imposition of the impugned condition; hence, we are inclined to remit the matter to the Delhi High Court in line with the approach adopted by the Supreme Court of India in Mahesh Candra and direct reconsideration of the application for pre‑arrest bail and a decision on its own merits in the light of the observations made herein, as early as possible but preferably within 31 August 2023. It is ordered accordingly., Till such time further orders are passed by the Delhi High Court, the appellant’s liberty shall not be infringed by the investigating officer. In the meanwhile, however, the appellant shall be bound to cooperate with the investigating officer, as and when he is called upon to do so., Before concluding, we need to dispose of Intervention Application 94276 of 2023. It is an application for intervention at the instance of the complainants, who seek to assist the Court on the ground that any order passed on the appeal without giving opportunity of hearing to them would cause grave prejudice., We hold that at this stage, the complainants have no right of audience before the Supreme Court of India or even the Delhi High Court having regard to the nature of offence alleged to have been committed by the appellant unless, of course, a situation for compounding of the offence under section 420 of the IPC, with the permission of the Court, arises., The appeal stands disposed of on terms as aforesaid. The application for intervention stands dismissed.
id_1727	0	Through: Dayan Krishnan, Senior Advocate with Pravin Anand, Ameet Naik, Vaishali Mittal, Madhu Gadodia, Siddhant Chamola, Shivang Sharma, Hersh Desai, Pallavi Bhatnagar, Megha Chandra, Harsh Jha, Sujoy Mukherjee and Tarini Kulkarni, Advocates. Versus Through: Mamta Rani Jha, Shruttima Ehersa and Rohan Ahuja, Advocates for Defendant Google LLC., Plaintiff 1, Aaradhya Bachchan, is the daughter of Abhishek Bachchan and Aishwarya Bachchan and the granddaughter of Amitabh Bachchan and Jaya Bachchan, all of whom are celebrities. The facts reveal that Plaintiff 1, at the age of eleven, is suffering the consequences of her celebrity status., The grievance of Plaintiff 1, filed through her father (Plaintiff 2), is that although she is a healthy school‑going child studying at Dhirubhai Ambani International School, Mumbai, certain miscreants, for the sake of puerile publicity, have been circulating videos on YouTube stating that Plaintiff 1 is critically ill, with one video even claiming that she is no more. Morphed pictures have been used in the videos, and one video shows a child surrounded by wreaths. The videos also invite subscriptions from viewers., The plaintiff alleges that such videos breach Plaintiff 1’s right to privacy and violate Rule 3(1)(b)(iii) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as amended in 2022 by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022, and also infringe the intellectual property rights of the Bachchan family, including copyright in the images and pictures of the plaintiffs., The Supreme Court of India has seen the images that have been provided with the plaint., Although misleading information about celebrities is not new, when it concerns a child of tender years it reflects a particularly morbid perversity on the part of the person circulating such information, with complete and resolute apathy to the interests of the child. Every child is entitled to be treated with honour and respect, whether the child is a celebrity or a commoner. Dissemination of misleading information relating to a child’s physical or mental wellbeing is completely intolerable in law, and no technicalities can prevent the Court from stepping in where such attempts are brought to its notice., Ms. Mamta Rani Jha, learned Counsel appearing for Google LLC, which runs the YouTube platform, submits that her client has no control over the content of the videos posted on YouTube, as the videos are not screened before posting. She states that YouTube has a zero‑tolerance policy for certain exceptional cases such as child pornography, for which a special mechanism is in place, and that for other information the only remedial mechanism is for a person who objects to the information to bring it to the notice of Google LLC, after which measures would be taken to take down the offending content. She further submits that on a complaint received from Plaintiff 1’s father, steps were being taken in accordance with law., The submission is plainly unacceptable., Mr. Dayan Krishnan, learned Senior Counsel for the plaintiffs, draws attention to the fact that the 2021 Intermediary Guidelines Rules were amended by the 2022 Amendment Rules, and that Rule 3(1)(b) of the amended Rules reads: ‘Due diligence by an intermediary: An intermediary, including social media intermediary, significant social media intermediary and online gaming intermediary, shall observe the following due diligence while discharging its duties, namely: (b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that (i) belongs to another person and to which the user does not have any right; (ii) is obscene, pornographic, paedophilic, invasive of another’s privacy including bodily privacy, insulting or harassing on the basis of gender, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or promoting enmity between different groups on the grounds of religion or caste with the intent to incite violence; (iii) is harmful to child; (iv) infringes any patent, trademark, copyright or other proprietary rights; (v) deceives or misleads the audience about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature; (vi) impersonates another person; (vii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence, or prevents investigation of any offence, or is insulting other nation; (viii) contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource; (ix) is in the nature of an online game that is not in conformity with any law for the time being in force in India, including any such law relating to gambling or betting or the age at which an individual is competent to enter into a contract; (x) violates any law for the time being in force.’, Mr. Dayan Krishnan further draws attention to Rule 4(4) of the 2021 Intermediary Guidelines Rules, which reads: ‘Additional due diligence to be observed by significant social media intermediary: (4) A significant social media intermediary shall endeavour to deploy technology‑based measures, including automated tools or other mechanisms, to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary, and shall display a notice to any user attempting to access such information stating that such information has been identified by the intermediary under the categories referred to in this sub‑rule. Provided that the measures taken shall be proportionate having regard to the interests of free speech and expression, privacy of users, and that the intermediary shall implement mechanisms for appropriate human oversight of measures deployed, including periodic review of any automated tools, evaluating accuracy, fairness, bias, discrimination, and impact on privacy and security. A significant social media intermediary is defined in clause (v) of Section 2(1) as a social media intermediary having a number of registered users in India above the threshold notified by the Central Government, which stands at fifty lakh users as per Notification S.O. 942(E) dated 25 February 2021 issued by the Ministry of Electronics and Information Technology. By any standard, YouTube, or Google LLC, is a significant social media intermediary, and Rule 4(4) of the Intermediary Guidelines Rules, prima facie, applies to it.’, Mr. Dayan Krishnan points out that while in its pre‑amended form the 2021 Intermediary Guidelines Rules only required the intermediary to call upon its user to draw up an agreement undertaking not to post the excepted categories of content, the amended Rules further require the intermediary to make reasonable efforts to cause the user not to host, display, upload, modify, publish, transmit, store, update or share any such information. The words ‘shall make reasonable efforts to cause the user of its computer resource’ were introduced by the 2022 Amendment Rules. Consequently, the intermediary can no longer claim to be a mere passive spectator regarding the information uploaded on its platform, but is required to be more proactive., Ms. Mamta Rani Jha submits that the phrase ‘reasonable effort’ must be interpreted in terms of Section 79 of the Information Technology Act, 2000. In response, Mr. Dayan Krishnan submits that the plaintiffs are not seeking censorship of content before it is uploaded, but that, in view of the more stringent nature of the responsibility of the intermediary under the amended 2022 Intermediary Guidelines Rules, the intermediary should, immediately upon being informed of content falling within the categories specified in the Rule, take it down without any lapse of time., The Supreme Court of India will examine this aspect of the matter on the next date of hearing., Defendant Google LLC is directed, in its response to this plaint and to IA 7429/2023, to set out in detail its policy to ensure compliance with Rule 3(1)(b) of the 2021 Intermediary Guidelines Rules (as amended) and to indicate whether, after the amendment of the Rules in October 2022, Defendant Google LLC has effected any change in its policy to bring it in line with the amendments., The Court may have to examine whether the existing policy of Defendant Google LLC is sufficient to ensure compliance with the amended Rule 3(1)(b) of the 2021 Intermediary Guidelines Rules, as the intermediary is duty‑bound, in law, to ensure strict compliance with the entire statutory regime relating to intermediaries, including the Rules as amended in October 2022., For the present, the plaint is to be registered as a suit. Issue summons in the suit. Summons are accepted on behalf of Defendant Google LLC by Ms. Mamta Rani Jha. Let summons be issued to the remaining defendants, whose YouTube channel IDs are provided in the memo of parties., Summons be issued to Defendants 1 to 9 at the details to be provided by Defendant Google LLC in accordance with the directions issued today in terms of prayer (iii) in IA 7429/2023, immediately on such details being provided., The written statement, accompanied by an affidavit of admission and denial of the documents filed by the plaintiffs, shall be filed within thirty days with an advance copy to learned Counsel for the plaintiffs, who may file a replication thereto, accompanied by an affidavit of admission and denial of the documents filed by the defendants within thirty days thereof., The matter shall be listed before the learned Joint Registrar (Judicial) for completion of pleadings, admission and denial of documents and marking of exhibits on 9 May 2023, whereafter it will be placed before the Supreme Court of India for case management hearing and further proceedings. (IA 7429/2023, Order XXXIX Rules 1 and 2 of the Code of Civil Procedure)., By this application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, Plaintiff 1 seeks interlocutory injunctive reliefs. The prayer clause reads: In light of the above, it is most humbly and respectfully prayed before this Supreme Court of India that it may be pleased to: (i) Pass an order of temporary injunction restraining Defendant Nos. 1 to 9, Defendant No. 12, their associates, servants, agents, affiliates, holding companies, assignees, substitutes, representatives, group entities, their subscribers, employees and/or persons claiming through them and/or under them and all other persons from creating, publishing, uploading, sharing, disseminating the videos identified in paragraph 27 of this application, or any other videos identical or similar in content, and any other content in any format that discloses details pertaining to the plaintiffs on the internet or through social media platforms, websites, blogs, or any other media such as the Metaverse, blockchain, any artificial intelligence program, or any other media such as print, audio‑visual etc., that result in (a) violation of the plaintiffs’ right to privacy; (b) tarnishing and bringing disrepute to the goodwill and reputation of the Bachchan family name; (c) exploitation or misappropriation of the plaintiffs’ personality rights; (d) defamation of the plaintiffs; (ii) An order granting ex parte relief in terms of prayer (i) above; (iii) An order directing Defendant No. 10 to reveal the identity and all other contact details of Defendant Nos. 1 to 9, 12, including name, email IDs, basic subscriber information, IP address etc.; (iv) An order directing Defendant No. 10 to immediately delist and deactivate all videos that are subject to restraining orders of this Supreme Court of India in terms of the prayer (i) and/or (ii) above; (v) An order directing Defendant No. 11, the Ministry of Electronics and Information Technology, to ensure that access is disabled to all infringing content uploaded by Defendant Nos. 1 to 9 and Defendant 12, which is identical or similar to the videos identified in paragraph 27 of this application, or any other videos or content in any format, including use of pictures, names, images, likeness that violate the rights of the plaintiffs; and pass any other order as this Supreme Court of India may deem fit in the facts of the present case., The facts recited above make out a clear prima facie case in favour of the plaintiffs and against the defendants, justifying the grant of ad interim relief. Given the nature of the grievance, relief must be granted at an ad interim stage without waiting for a response from the defendants to prevent further prejudice to the plaintiffs., Notice is accepted on behalf of Defendant Google LLC by Ms. Mamta Rani Jha. Notice shall be served on the remaining defendants by all modes., Reply shall be filed within a period of four weeks with an advance copy to learned Counsel for the plaintiffs, who may file a rejoinder therein, if any, within a period of four weeks thereafter., The matter shall be listed before the Supreme Court of India on 13 July 2023., The following directions are issued in the interregnum: (i) Defendants 1 to 9, as well as their associates, servants, agents, affiliates and all others acting on their behalf are restrained forthwith from disseminating or further transmitting the videos relating to the URLs listed in paragraphs 25 and 26 of this application; (ii) Defendants 1 to 9 and all others acting on their behalf are also restrained from creating, publishing, uploading, sharing or disseminating any videos identical or similar in content to the videos forming the subject matter of the aforesaid URLs, including any videos dealing with the physical condition of Plaintiff 1; (iii) The Court notes that unknown persons, impleaded as John Doe(s) under the appellation Defendant 12, might also engage in similar activities and therefore must be injuncted; (iv) Defendant Google LLC shall (a) disclose to the plaintiffs, and place on affidavit in these proceedings, the identity and all contact details of Defendants 1 to 9, including basic subscriber information, name, email IDs, IP address and any other information presently available; (b) immediately proceed to delist and deactivate all the videos forming the subject matter of the URLs listed in sub‑paragraph (i) above; (c) upon notice by the plaintiffs of any other video clip uploaded on its YouTube platform dealing with the physical health and well‑being of Plaintiff 1, Defendant Google LLC shall immediately take down such URLs, after which the plaintiffs must move an application before this Supreme Court of India bringing the fact to its notice with due expedition; (d) Defendant 11, the Ministry of Electronics and Information Technology, is directed to block access to the aforesaid contents uploaded by Defendants 1 to 9, as well as any other similar videos or clips containing similar content, upon notice by the plaintiffs., Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure shall be effected, with respect to the absent defendants, within one week from the date of communication of their details by Defendant Google LLC, as directed above. (I.A. 7430/2023, Order XI Rule 2 of the CPC)., Notice is accepted on behalf of Defendant Google LLC by Ms. Mamta Rani Jha. Notice shall be served on the remaining defendants by all modes., Reply shall be filed within a period of four weeks with an advance copy to learned Counsel for the plaintiffs, who may file a rejoinder therein, if any, within a period of four weeks thereafter., The matter shall be listed before the Supreme Court of India on 13 July 2023. (I.A. 7431/2023, Order XI Rule 1(4) of the CPC)., The application seeks permission to file additional documents. The plaintiffs are permitted to place additional documents on record in accordance with Order XI Rule 1(4) of the Code of Civil Procedure, 1908, as amended by the Commercial Courts Act, within four weeks from today., The application stands disposed of accordingly. (I.A. 7432/2023, Section 80 of the CPC)., In the facts of the present case, exemption is granted as prayed for. (I.A. 7433/2023, Exemption)., For the reasons stated in the application, the plaintiffs are exempted from the requirement of serving an advance notice on the defendants. (I.A. 7434/2023, Exemption)., Subject to the plaintiffs filing legible copies of any dim or illegible documents within thirty days, exemption is granted for the present. (I.A. 7435/2023)., Extension of time of ten days is granted to pay court fees. (I.A. 7436/2023)., The application is allowed. (I.A. 7437/2023, Section 12A of the Commercial Courts Act, 2015)., In view of the judgment of the Division Bench of this Court in Chandra Kishore Chaurasia v. R.A. Perfumery Works Pvt Ltd, exemption is granted from the requirement of pre‑institution mediation under Section 12A of the Commercial Courts Act, 2015. (I.A. 7438/2023)., The application stands allowed accordingly. (I.A. 7439/2023)., Leave to file videos on a CD or pendrive is granted, subject to filing an appropriate application under Section 65‑B of the Evidence Act., The application is disposed of. (I.A. 7440/2023, Order II Rule 2 of the CPC)., Notice is accepted on behalf of Defendant Google LLC by Ms. Mamta Rani Jha. Notice shall be served on the remaining defendants by all modes., Reply shall be filed within a period of four weeks with an advance copy to learned Counsel for the plaintiffs, who may file a rejoinder therein, if any, within a period of four weeks thereafter.
id_1730	0	IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\nMISCELLANEOUS CIVIL APPLICATION NO. ___ OF 2019 (For Contempt)\nIN WRIT PETITION (PUBLIC INTEREST LITIGATION) NO. 170 OF 2017\nMustak Hussain, Mehndi Hussain Kadri, Applicants\nVersus\nDr. Jagadip Narayan Singh, Indian Administrative Service and Another, Opponents., By way of this application, the applicant states that there has been little or no compliance with the directions issued by this Honourable High Court of Gujarat (Coram: Honourable Mr. Justice M.R. Shah and Honourable Mr. Justice A.Y. Kogje) in the oral judgments dated 11 May 2018 and 7 August 2018. The directions relate to the poor condition of public roads and streets, potholes, menace of stray cattle, inadequate parking spaces, traffic congestion, removal of all types of encroachments obstructing free movement of vehicles and pedestrians, and ensuring that vehicles are parked only in designated parking places so that no vehicles are parked on public or service roads., The present Public Interest Litigation under Article 226 of the Constitution of India has been filed pro bono publico by the petitioner to prevent further injury, inconvenience, damage to property, loss of life and to enforce the rule of law, redress public injury and enforce public duty. The petitioner seeks directions against the respondents to forthwith take all necessary immediate steps within the jurisdictional limits of the Ahmedabad Municipal Corporation to carry out repairs for restoration of all public roads and streets by leveling, metalling, paving, channeling, repairing and protecting, thereby making them road‑worthy and motorable for all categories of vehicles—two‑wheelers, three‑wheelers, four‑wheelers and above—so as to ensure the safety and well‑being of commuters, residents and citizens., The petitioner prays for the following reliefs:\n(A) Direct respondent No. 2 to personally ensure that all necessary and immediate steps are taken within the jurisdictional limits of the Ahmedabad Municipal Corporation to carry out the repairs described above, deploying maximum workforce and completing the work with utmost expedition so that no potholes or other defects remain.\n(B) Direct the respondents to submit a report to this Honourable High Court of Gujarat on completion of the aforesaid road and street repair work.\n(C) Direct the respondents to pay compensation, as may be appropriate, to residents, commuters and citizens for loss of property and life caused by accidents resulting from substandard, pathetic and harmful public roads and streets.\n(D) Take action under Article 215 of the Constitution of India against any person who fails to comply with the directions issued by this Honourable High Court in the judgment referred to in paragraph 8.5.\n(E) Issue appropriate directions to the respondents to prevent recurrence of the situation described in the annexure, including:\n (i) Displaying details of contractors, length of road constructed, number of times the same stretch has been resurfaced and the value of contracted work on the Ahmedabad Municipal Corporation website and at the work site, together with the Measurement Book for public scrutiny.\n (ii) Fixing a penalty of ten percent of the overall contract value for contractors who do not adhere to tender terms and conditions.\n (iii) Increasing the security deposit of contractors to twenty percent of the contract value.\n (iv) Raising the defect‑liability period for each road from three years to five years.\n (v) Monitoring road construction activity by the concerned engineer of the Ahmedabad Municipal Corporation and ensuring that final bills are promptly posted in the public domain.\n (vi) Establishing a Public Injury Board to ensure proper compensation to victims of poor road construction and to penalise responsible officers and errant contractors.\n (vii) Constituting an independent Technical Advisory Committee of experts for the Ahmedabad Municipal Corporation in the field of road engineering and construction, similar to the model directed by the Bombay High Court in Kewal Semlani versus Commissioner of Bombay and others (2005) 4 Bombay Civil Reports 25.\n(F) Pass such other and further orders as may be deemed just and proper., The petitioner also seeks the following interim directions:\n(i) Direct respondent No. 1 to provide respondent No. 2 with all assistance, including financial assistance, officers, workforce, machinery, equipment and raw materials, to enable the repair and restoration of all public roads and streets as described above.\n(ii) Direct respondent No. 2 to file an undertaking to this Honourable High Court of Gujarat declaring that it will forthwith take all required steps for the repairs and will submit a weekly progress report.\n(iii) Direct respondent No. 1 to make an inquiry to identify the persons responsible for the condition of the public roads and streets within the jurisdiction of the Ahmedabad Municipal Corporation and to present a report indicating the action proposed against those persons.\n(iv) Restrain respondent No. 2 from making any payment to contractors for road contracts from 8 August 2017 without the permission of this Honourable High Court of Gujarat.\n(v) Direct respondent No. 2 to place on record before this Honourable High Court of Gujarat the Measurement Book maintained by the concerned engineer, showing the quality of raw materials used, the extent of defect‑liability, the length and details of the roads, and the amounts spent on repair and maintenance.\n(vi) Direct respondent No. 2 to place before this Honourable High Court of Gujarat the details of notices issued to contractors and the action proposed against errant contractors., It is submitted that earlier directions were issued by this Honourable High Court of Gujarat in the reported decision of Sharda Sahkari Gruh Mandali Ltd. and Others versus Ahmedabad Municipal Corporation and Others (2006) Gujarat Law Reports 1765. The Division Bench directed the local authorities, including the Ahmedabad Municipal Corporation, to ensure that public roads are constructed and maintained in good condition to facilitate smooth traffic flow, to curb the menace of stray cattle, to remove unauthorised encroachments, and to exercise the powers and machinery provided to them. The Bench observed that the law on the right to life under Article 21 of the Constitution of India makes it a fundamental right of the public to enjoy life free of stray‑cattle menace, traffic congestion and unsafe roads. The Bench also directed regular inspection of roads before and after the monsoon, periodic resurfacing where required, and that competent contractors be engaged without compromising quality., Despite those specific directions and the provisions of the Gujarat Provincial Municipal Corporations Act, 1949 and the Gujarat Panchayats Act, 1993, the petitioner submits that the Ahmedabad Municipal Corporation has failed to remove stray cattle, to impound them, or to supervise officers effectively. The corporation has not maintained roads in good condition despite large expenditures on repair and resurfacing, resulting in citizens suffering after each monsoon season., Shri Amit M. Panchal, learned advocate appearing for the petitioner, submits that there is a lack of will on the part of the authorities to comply with the Court’s directions, leading to citizens paying taxes without receiving proper facilities. He points out the poor quality of materials used, the absence of coordination among agencies that dig roads for laying cables and pipelines, and the failure of the corporation to monitor and restore roads after such excavations. He further states that the non‑implementation of the directions issued in Sharda Sahkari Gruh Mandali Ltd. and Others amounts to contempt of court., The advocate highlights that the Municipal Commissioner is the head of all departments, with Deputy Commissioners, City Engineers, Deputy City Engineers and Assistant Engineers delegated powers under Manual‑II, Regulation and Delegation of Powers of the Corporation. He alleges that these officers have failed to perform their duties, resulting in wasted public money and dangerous post‑monsoon road conditions. He also raises the serious problem of stray cattle on public roads, noting that the corporation has not taken effective steps to curb the menace, thereby endangering lives., Further, the petitioner submits that the non‑finalisation of Town Planning Schemes for areas newly included within the limits of the Ahmedabad Municipal Corporation has left many roads unconstructed and basic amenities such as drainage and electricity unprovided despite tax collection. Parking on public and service roads is also highlighted as a major grievance, with cross‑roads and service roads being used as regular parking places, causing traffic congestion and loss of valuable time for citizens. The petitioner calls for the constitution of a proper agency to address these issues if existing authorities continue to fail in their statutory duties., In view of the foregoing submissions and relying upon various decisions of the Supreme Court of India as well as this Honourable High Court of Gujarat and other High Courts, the petitioner requests that this Honourable High Court of Gujarat issue further directions with a clear observation that failure to implement or comply with such directions in their true spirit will render the Commissioner, all officers of the Ahmedabad Municipal Corporation and the State Government liable to strict action for non‑compliance and disobedience under the Contempt of Courts Act, 1971.
id_1730	1	Shri Kamal B. Trivedi, learned Senior Advocate, has appeared with Shri Satyam Y. Chhaya, learned advocate for the respondent Ahmedabad Municipal Corporation and Mrs. Manisha Lavkumar, learned Government Pleader, who has appeared on behalf of the respondent State and the Home Department as well as the Traffic Department., Number of affidavits in reply and further affidavits in reply have been filed on behalf of the Corporation pointing out the steps taken and/or to be taken for the purpose of maintenance of roads, stray cattle, and so on., At the outset, it is required to be noted that various interim directions came to be issued by the Supreme Court of India vide order dated 10.08.2017 and in response to the same, the first affidavit in reply has been filed on behalf of the Ahmedabad Municipal Corporation dated 11.09.2017, affirmed by Shri M.N. Gadhvi, Deputy Municipal Commissioner, Ahmedabad Municipal Corporation. In the said affidavit in reply, it is stated that in view of the volume of work and fact situation as well as the peculiar facts and circumstances, the actual execution of the work is under process; however, as a statutory authority, the Corporation would not leave any stone unturned to take all necessary steps so as to reach the ultimate goal of resurfacing the roads which are affected in view of the heavy rains during the monsoon 2017 and further steps of undertaking proper vigilance inquiry which are in process with due deliberation. The affidavit points out that the total area of the Ahmedabad Municipal Corporation is around 466 square kilometres, out of which the New West Zone has an area of 178.76 square kilometres, which is even more than the total area of Vadodara Municipal Corporation. It is stated that therefore, the area and quantum are very large and hence time is being consumed to execute the work of resurfacing the roads, more particularly in view of monsoon. The Corporation has identified certain roads in priority for which initial resurfacing was started considering the importance in terms of its connectivity to the important spots of the city. The work of resurfacing, micro‑resurfacing, jet patching, reinstatement of Bhaat (manual reinstatement), reinstatement by cold‑mix is going on. Along with the affidavit, the Corporation has placed on record the information with respect to the budgetary provision made for the last two years for the purpose of construction and maintenance of the public roads; the actual amounts spent or paid to the contractors and/or others for construction and maintenance of the public roads for the last two years, along with the terms and conditions on which the contracts were awarded; the actual payment made to the respective contractors and the amount still due and payable to the concerned contractors; the measurement books maintained by the concerned authorities to demonstrate and show the payments made. The affidavit further points out that the vigilance inquiry is going on with respect to the poor condition of roads, more particularly construction of poor quality of roads. It is further stated that even prior to the order dated 10.08.2017, on 27.07.2017, the Municipal Commissioner, Ahmedabad Municipal Corporation had issued a confidential communication to the Deputy Municipal Commissioner (Vigilance) whereby the Vigilance Department was directed to initiate detailed inquiry to find out poor quality of workmanship, defaulters, factual reasons which led to the poor quality of roads etc. The Vigilance Committee has identified the affected roads randomly and initiated inquiry with respect to ninety affected roads. It is stated that the Vigilance Commission shall look into the affected roads and would submit its final report to the Commissioner., A further affidavit in reply is filed on behalf of the Corporation dated 25.09.2017 pointing out further steps taken to repair and resurface the roads and to improve the quality of roads. It is stated that in the new tender, certain stringent conditions by modifying the existing conditions are introduced. It is pointed out that the new conditions now incorporated in the tender documents would certainly ensure the quality of the work and the work performance of the contractors., A further affidavit in reply is filed on behalf of the respondent Corporation dated 04.10.2017, in which it is stated that as the result of the samples of the roads taken is awaited from the Forensic Science Laboratory and the Gujarat Engineering Research Institute, as soon as the reports are received, steps shall be taken by the Vigilance Department., A further affidavit in reply is filed on behalf of the respondent Corporation dated 29.11.2017, in which it is stated that the Corporation has already floated a tender inquiry dated 15.10.2017 inviting Expression of Interest for providing consultancy service for inventory and survey of the entire road network of 2600 kilometres of the city of Ahmedabad, for attending the remaining damaged roads, if any, so as to carry out the resurfacing work. The affidavit further states that the vigilance inquiries are under process and the preliminary inquiry reports thereof would be placed before the Supreme Court of India in a sealed cover. It is further stated that as per the directions issued by the Supreme Court of India in the order dated 09.11.2017, a Centralized Redressal Cell with respect to roads in the city of Ahmedabad has been constituted., A further affidavit in reply is filed on behalf of the respondent Corporation dated 29.01.2018, stating that a detailed survey has been conducted zone‑wise and the comparative chart is prepared dividing roads into three categories, namely Category A not so far damaged roads, Category B damaged roads and Category C badly damaged roads. It is stated that the Corporation is taking all practicable, possible and feasible steps so as to ensure that all damaged roads in the city are resurfaced as soon as possible., It is pointed out in the further affidavit in reply filed on behalf of the respondent Corporation dated 07.03.2018 that most of the area falling within the boundary of New West Zone is included within the territorial jurisdiction of the Ahmedabad Municipal Corporation after 2006. Out of total eighty Town Planning Schemes covering the total area of New West Zone, twenty‑one schemes are final Town Planning Schemes whereas eleven schemes are sanctioned Preliminary Town Planning Schemes and the process of finalisation of the final scheme is in progress. The remaining forty‑eight schemes out of total eighty are at the stage of preparation of Preliminary Town Planning Schemes by the Town Planning Officer and these forty‑eight draft Town Planning Schemes are sanctioned by the State Government under Section 48(2) of the Gujarat Town Planning and Urban Development Act, 1976. It is further stated that the Corporation has initiated the process of laying down the roads as well as other infrastructure with respect to 113.37 square kilometres area covered within the net of the above‑referred eighty Town Planning Schemes., A further affidavit in reply is filed on behalf of the respondent Corporation in I.A. No.2/2018 in Writ Petition (Public Interest Litigation) No.170/2017 dated 12.04.2018 pointing out that the Corporation has adopted proper norms and there are adequate parameters so as to monitor the quality of the material which would ultimately result in better quality of roads. It is pointed out that over and above the tender inquiry inviting Expression of Interest for providing consultancy services for the inventory and inquiry on resurfacing of the entire road network of 2600 kilometres of the city of Ahmedabad, so that the damaged roads can immediately be identified, the Corporation has also invited Expression of Interest for providing Project Management consultancy services for supervision, monitoring and quality checking of road works in the city of Ahmedabad so that the roads can be repaired with good quality and the same agency would also monitor construction of new roads. The same is placed before the Standing Committee for final sanction. To tackle the traffic problems, the Corporation has planned to carry out a detailed scientific survey of fifty critical signalised traffic junctions and the work has been allotted to Delhi Integrated Multi‑Modal Transit System Ltd. The junctions will be identified in consultation with the traffic police department. The exercise will help in redesigning of signals, fixing time‑cycles and phasing of signals according to present vehicular traffic volumes and will be helpful for the efficient use of signals and easy and effective traffic movement at junctions. The Corporation has already issued notices to private buildings for opening parking space and has also nominated many municipal plots as parking space to facilitate the general public for parking., Relying upon the affidavits in reply filed on behalf of the respondent Corporation, Shri Kamal B. Trivedi, learned Senior Advocate appearing on behalf of the Corporation has submitted that the respondent Corporation is very much serious with respect to the maintenance of roads in a motorable and good condition. It is submitted that the Corporation is also anxious to see that the roads constructed are of good quality and that there shall be proper monitoring and supervision with respect to the quality of roads by the concerned officers. It is submitted that the Municipal Commissioner, Ahmedabad Municipal Corporation, shall personally see to it that the roads in the city of Ahmedabad are in a good and motorable condition. Shri Trivedi has also stated at the Bar that now the reports from the Forensic Science Laboratory and other authority with respect to the roads already constructed in the last two years are received and show cause notices have been issued against the erring officers who have failed to perform their duties properly and more particularly with respect to the poor quality of roads constructed by the concerned contractors. He has also stated at the Bar with respect to those roads which are under the defect liability period that the same shall be repaired or resurfaced by the concerned contractors at their cost. He has further stated at the Bar that henceforth, as soon as the roads are constructed and/or resurfaced or repaired, the same shall be supervised and monitored by the concerned Assistant Engineers, Additional Engineers and Deputy Engineers and the same shall be certified by the concerned officers of the Corporation that the roads are constructed or resurfaced as per the required quality so that if ultimately, in future it is found that the roads are not constructed as per the quality standard, the concerned officer can be held responsible and liable for any further action. He has stated at the Bar that the payments shall be made to the concerned contractors only after the certificate by the concerned officer and after the measurement book is signed by the concerned officer., Shri Kamal B. Trivedi, learned Senior Advocate appearing on behalf of the respondent Corporation has also stated at the Bar that all steps are being taken and shall be taken by the concerned departments of the Corporation to remove stray cattle from the public roads. He has pointed out that a proposal has been made by the Municipal Commissioner, Ahmedabad Municipal Corporation to the State Government to enact a special law in line with the Maharashtra Law to tackle the problem of stray cattle on roads. He has also pointed out that even the fine amount has been increased so that it may have a deterrent effect., Shri Kamal B. Trivedi, learned Senior Advocate appearing on behalf of the respondent Corporation has submitted that the Corporation is not considering the present petition as an adversarial litigation and any suggestion and/or directions from the Supreme Court of India are welcome and that the same shall be implemented in its true spirit., An additional affidavit is filed on behalf of the State of Gujarat dated 29.01.2018, affirmed by the Assistant Commissioner of Police, Traffic, Ahmedabad, pointing out the steps taken for controlling traffic in the city. It is pointed out that in the year 2017‑18 itself, Ahmedabad City Police had collected a penalty of Rs. 2,79,14,601 qua 401,431 cases registered for breach of traffic rules pertaining to parking of the vehicles., A further additional affidavit in reply is filed on behalf of respondent Number 1 State of Gujarat, affirmed by the Assistant Commissioner of Police (Traffic) Ahmedabad, dated 21.02.2018, in which it is stated that the Ahmedabad City Police has issued a communication to the Ahmedabad Municipal Corporation regarding No Parking Zone and the Ahmedabad Municipal Corporation has responded by installing sign‑boards for No Parking Zone, One‑Way and other instructions at visible distance and convenient places. It is stated in the affidavit that the Police Commissioner, Ahmedabad City, has promulgated vide Notification dated 17.02.2018 a ban on parking of vehicles up to fifty metres of area from cross‑roads or junctions. It is further submitted that it has also been communicated to the Ahmedabad Municipal Corporation to install sign‑boards of No Parking Zone in accordance with the No Parking Zone Notification issued by the Ahmedabad Police Commissioner., A further additional affidavit is filed on behalf of respondent Number 1 State dated 06.03.2018 stating that to meet the traffic congestion primarily on S.G. Highway, two Traffic Police Stations have been sanctioned vide Notification dated 28.02.2018, which shall be constituted at two ends of S.G. Highway. It is stated that in each of the police stations, there shall be one Police Inspector, four Police Sub Inspectors, approximately ninety Assistant Sub Inspectors or Head Constables, sixteen Police Constables or L.R.Ds, and four Women Assistant Sub Inspectors and/or Women Head Constables. It is submitted that thus a total of two hundred thirty‑eight police officers have been deployed in these two police stations of S.G. Highway to ensure that flow of traffic system is smooth without hindrance., Relying upon various affidavits in reply filed on behalf of respondent Number 1, affirmed by the Assistant Police Commissioner, Traffic, Ahmedabad City, Mrs. Manisha Lavkumar, learned Government Pleader, has stated at the Bar that all steps shall be taken by the State Government and the Traffic Department in consultation with the Ahmedabad Municipal Corporation to remove encroachments and hindrances from the service roads that cause traffic congestion. She has stated at the Bar that all steps shall be taken by the Traffic Department to ensure that there is no parking on service roads and that there shall be smooth running of the traffic., An affidavit in reply dated 22.02.2018 is filed on behalf of the State Government, affirmed by Shri P.L. Sharma, Chief Town Planner, Gujarat State, Gandhinagar. It is pointed out that in the new areas measuring 242.28 square kilometres, the Ahmedabad Municipal Corporation is required to make one hundred eighty‑five Town Planning Schemes. However, the Corporation has till date prepared one hundred seventy‑one schemes in 232.21 square kilometres and in the remaining ten point zero seven square kilometres, the Corporation is yet to make fourteen schemes. It is pointed out that from one hundred seventy‑one draft schemes submitted by the Corporation, one hundred fifty‑eight draft schemes are sanctioned by the State Government and only thirteen draft schemes are under scrutiny and consideration., Mrs. Manisha Lavkumar, learned Government Pleader, has stated at the Bar that all sincere efforts shall be made by the Town Planning Department of the State Government to sanction the Town Planning Schemes submitted by the Corporation with respect to the areas which are subsequently included in the territorial jurisdiction of the Ahmedabad Municipal Corporation so that on finalisation of the schemes, the development work in the said areas, including that of construction of roads, can take place., Heard learned counsel appearing on behalf of the respective parties at length. The Supreme Court of India heard the present proceedings and petition time and again. The Supreme Court of India issued various directions in the matter from time to time right from 10.08.2017 in Writ Petition (Public Interest Litigation) No.170/2017 as well as Special Civil Application (For Direction) No.2286/2017. Considering the status reports placed on record, it appears that there is progress in repairing and resurfacing the public roads and streets and to make public roads motorable. However, much is required to be done. Still, there are many public roads and streets which are not motorable or in a proper or good condition and ultimate sufferers are the citizens who pay tax to the Corporation. The Supreme Court of India has issued directions not only for the first time in its order dated 10.08.2017 and onwards but very detailed elaborate directions were issued by the Division Bench as far back as the year 2006 in the case of Sharda Sahkari Gruh Mandali Ltd. and Others v. Ahmedabad Municipal Corporation and Others. However, due to non‑compliance of such directions and due to multiple reasons which have contributed to not maintaining the proper public roads in good and motorable conditions, the citizens are facing serious difficulties, more particularly post‑monsoon and even during the monsoon, every year. Many times, bad condition of roads not only causes serious difficulties to the citizens in plying the vehicles but leads to accidents and the same is dangerous to their lives., Having heard learned counsel for the respective parties, it appears that there is no proper implementation of the laws and there is a lack of proper supervision and monitoring when the roads are constructed or resurfaced and many times, money which is spent in resurfacing the roads is washed away. There has to be a will to do it. We have noted in number of orders made during the last many years, but it seems that there is no effect on the authorities or the same may have a very little effect on them. Things cannot be permitted to go on in this manner forever. On one hand, various laws are enacted and on the other, illegal activities go on unabated openly under the gaze of everyone, without any respect and regard for law and citizens. For the last number of years, even the Supreme Court of India has been expressing anguish in the orders made in a large number of cases. We regret to notice that despite warnings and caution given by the Supreme Court of India in orders from time to time, all such warnings have fallen on deaf ears without any effect. It is, therefore, necessary to once again send a message, loudly, clearly and firmly., We have noticed and we firmly believe that despite passing of the laws and repeated orders by the Supreme Court of India, the enforcement of the laws and implementation of the orders is utterly lacking. If the laws are not enforced and the orders of the Court to enforce and implement the laws are ignored, the result would only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against the officers responsible for this state of affairs. Such blatant misuse of the laws and in the present case, poor conditions of public roads and streets and the poor quality of roads, cannot take place without connivance of the officers concerned. It may also be a source of corruption. Therefore, exercise is necessary to check corruption, nepotism and total apathy towards the rights of the citizens. Similar would also be regarding accountability of the erring officers as well as since, prima facie, such large scale misuse in violation of laws cannot take place without the active connivance of the officers. It is for the officers to show that all effective steps were taken to stop the misuse. Tolerating filth, while not taking action against the lethargic and inefficient workforce for fear of annoying them, is un‑understandable and impermissible. Non‑accountability has possibly led to lack of efforts on the part of the employees concerned. They are perhaps sanguine in their behalf that non‑performance is not frowned upon by the Government or by the heads of the organisations and no harm will befall them., Rule of law is the essence of democracy. It has to be preserved. Laws have to be enforced. In the case on hand, implementation and enforcement of laws and blatant misuse cannot be delayed further. Under the provisions of the Gujarat Provincial Municipal Corporations Act, 1949, it is the duty cast upon the Municipal Corporation to maintain public roads. Even the citizens also pay tax and in turn, they have a right to expect good return in the form of better infrastructure facilities for which tax is collected. Crores of rupees are spent for construction of roads and resurfacing the public roads and despite the same, it appears that because of either poor material used or poor resurfacing of the roads by the contractors who are paid crores of rupees, there are potholes in such a way that it affects the common man. The local authorities are constituted for providing services to the citizens and not merely to provide employment to a few of its inhabitants., Right to life under Article 21 of the Constitution of India is very well defined and it is therefore a fundamental right of the public to enjoy life well. Article 21 of the Constitution of India guarantees the citizen to have a meaningful, complete and worth‑living life. The local authority is bound to see that the life of the persons residing in the city is made meaningful, complete and worth‑living. The Supreme Court of India will be well within its bounds to issue appropriate directions to the concerned authorities if the public is deprived of this right. The local authorities must perform the duties cast under the statute. In the case of M/s. Shiv Shanker Dal Mills etc. v. State of Haryana and Others reported in AIR 1980 SC 1037, the Honorable Supreme Court has observed and held that Article 226 grants extraordinary remedy which is essential discretion although founded on legal injury. It is perfectly open for the Court exercising the flexible power to pass such order as public interest dictates and equity project., It was suggested by learned counsel appearing on behalf of the Corporation and the State that we should issue directions to the authorities and all suggestions are welcome. We believe, it is not for the Supreme Court of India to direct as to how the municipal authorities should carry out their functions and resolve difficulties with regard to maintenance of public roads, streets, etc. and also to curb the menace of stray cattle on the roads. The Supreme Court of India, in fact, is ill‑equipped to do so. Without doubt, the local authorities have all the powers of the State to take action and ensure implementation of laws. They have only to wake up and act. Rectifying the rights is an obligation on the part of the local authorities and the same has to be done as a duty. If the said duty is not discharged, the Supreme Court of India has to interfere and compel the authorities to discharge their responsibility or duty. Therefore, we propose to issue appropriate directions again, despite the specific directions having been issued by the Supreme Court of India earlier time and again, more particularly, in the reported decision in the case of Sharda Sahkari Gruh Mandali Ltd. and Others v. Ahmedabad Municipal Corporation and Others. We propose to do so now by issuing appropriate directions., Having heard learned counsel appearing on behalf of the respective parties on the problem of poor conditions of public roads and streets; potholes on public roads and streets; menace of stray cattle on public roads; traffic problems faced by virtually every citizen, etc., we are of the opinion that a number of reasons have contributed to not maintaining the proper conditions of public roads and streets, stray cattle on the roads and traffic problems, which shall be discussed hereinbelow. The main reasons contributing to the problem are: a) there is no proper survey with respect to the damaged roads; there is lack of inspection and supervision by the concerned officers of the respective zones; b) no monitoring of the work done; c) no quality control, no checks and balances; d) no action, penalty or punishment taken against the erring officers for not performing their duties as provided in the Manual; e) no liability or accountability of the contractor or contractors for bad condition of roads; f) contractors are paid their money; g) no inspection or monitoring with respect to the quality control and to check whether the roads are constructed or resurfaced as per the quality required; h) there is no checking whether the required material is used; i) non‑finalisation of the Town Planning Schemes, more particularly with respect to the areas which are subsequently included in the territorial jurisdiction of the Ahmedabad Municipal Corporation; j) no inspection or supervision and/or monitoring of the roads after the permissions are granted for digging of the roads for the purpose of laying cable, pipelines, etc. by electricity company, telephone companies and other companies providing water, gas, sewerage facilities etc., and there is a lack of supervision and monitoring whether after digging permissions are granted and the roads are dug thereafter the roads are restored to their original good condition or not; k) poor maintenance of service roads and the service roads are virtually converted into parking spaces by shopping centres, restaurants, clubs, hospitals, educational institutions, commercial complexes, malls, religious places, parks, theatres, Government and corporate buildings or offices etc., and no effective steps are taken to remove the encroachment from the public roads; l) there is no proper or detailed survey by expert bodies on monitoring and/or supervision of the public roads, traffic problems, etc.; m) lack of will or commitment in performing duties by the concerned employees or officers of the local bodies., For whatever reason, and despite the directions issued by the Supreme Court of India in the case of Sharda Sahkari Gruh Mandali Ltd. and Others v. Ahmedabad Municipal Corporation and Others as far back as the year 2006 and despite number of directions issued as regards menace of stray cattle, there is no proper implementation of the directions and the menace of stray cattle on public roads has continued which not only causes hindrance to the traffic but is dangerous to the lives of citizens. No effective permanent solution is suggested as regards menace of stray cattle on public roads and authorities seem to be satisfied by impounding some cattle and recovery of fine. Therefore, concrete formation of permanent steps is required to be taken to solve the problem of stray cattle. It is the duty of the local authorities as well as the State Government to see that the roads are free of stray cattle as they are meant for traffic and not for stray cattle. The Supreme Court of India has noticed that whenever the matters come up on Board, some temporary measures or steps are stated to be taken. However, thereafter, things remain as it is., There is no proper implementation of the directions issued by the Division Bench of the Supreme Court of India in its reported decision in the case of Sharda Sahkari Gruh Mandali Ltd. and Others v. Ahmedabad Municipal Corporation and Others, in its true letter and spirit and therefore, every year, more particularly during the monsoon and post‑monsoon, the citizens are suffering. Non‑compliance of the directions issued by the Supreme Court of India could tantamount to contempt and disobedience is required to be construed very seriously., At the outset, it is required to be noted that the grievances which are voiced in the present petition and proceedings are with respect to bad condition of public roads and streets; menace of stray cattle on public roads; traffic congestion problem; non‑compliance of the directions issued in Special Civil Application No.6963/1997; non‑compliance of various directions issued by the Division Bench of the Supreme Court of India in its judgment in the case of Sharda Sahkari Gruh Mandali Ltd. and Others v. Ahmedabad Municipal Corporation and Others, and because of the non‑compliance of the various directions issued by the Supreme Court of India, difficulties faced by the citizens due to poor conditions of roads, potholes on roads, menace of stray cattle on public roads, etc., have been continued. No scientific studies have been undertaken and no concrete effective steps are taken to do away with the traffic problems., It cannot be disputed and even as held by the Honorable Supreme Court as well as by this Court in a catena of decisions, non‑compliance of the directions issued by the Court or Courts would tantamount to wilful disobedience and would tantamount to contempt., At this stage, it is required to be noted that while issuing various directions, the Division Bench of the Supreme Court of India in the case of Sharda Sahkari Gruh Mandali Ltd. and Others v. Ahmedabad Municipal Corporation and Others was at pains to note that in spite of various orders passed by this Court and repeated assurances given to this Court to comply with the directions and orders, either no effective steps are taken by the Ahmedabad Municipal Corporation either to remove stray cattle and/or to impound the stray cattle which are moving freely on roads and the same are kept on roads or roadside for permanent stay and/or there is no supervision by the officers. The Division Bench also specifically observed that it appears that the officers are under an impression that the moment the matter is adjourned, they are not required to do anything till the matter is again notified on the adjourned date.
id_1730	2	That thereafter, the Division Bench in Sharda Sahkari Gruh Mandali Limited and Others v. Ahmedabad Municipal Corporation and Others (supra) issued various directions in detail, which are as follows:, The local authorities, such as Municipal corporations, municipalities, Panchayats and Development Authorities, shall regularly inspect the condition of the roads within their limits before the monsoon and maintain them after the monsoon. For the purpose of digging roads for laying cable, pipeline and similar works by electricity companies, telephone companies and other agencies providing water, gas and sewerage facilities, the agencies shall inform each other in advance and work in close coordination with the local authority responsible for road maintenance. When the local authority proposes to construct a new road or resurface an existing road, it shall intimate the aforesaid agencies in advance and invite them to carry out their projects before the commencement of the road work. Any agency that needs to dig a road shall first obtain permission from the concerned local authority and shall commence work only after receiving an undertaking that the road will be resurfaced to its original condition upon completion. In case of non‑compliance or breach of the undertaking, the local authority shall prosecute the relevant officers of the concerned agency for causing damage to public property, and the officers shall be personally accountable for the lapses., Roads shall be inspected periodically so that any repairing or resurfacing work required can be carried out promptly, preventing difficulties for the public at large. The concerned authorities shall monitor this aspect regularly and shall ensure that work is allotted to contractors capable of completing it without delay and without compromising quality. If roads are damaged due to heavy rainfall or any other reason, the authority shall see to it that they are repaired or resurfaced without undue delay., With respect to encroachments at Rabari Vasahat areas, the Ahmedabad Municipal Corporation is directed to take appropriate action in accordance with law against erring allottee or occupier who has violated the terms of allotment. If any allottee or occupant is found to have encroached upon the area, the appropriate authority shall pass an order after hearing the erring party, ensuring that the area can be used for keeping cattle. Before taking action, the affected persons must be given an opportunity of hearing and the principles of natural justice must be followed., Regarding party plots, it is observed that inadequate parking facilities cause owners to park vehicles on the street, creating traffic congestion. The concerned authorities are directed to take appropriate action in accordance with law, and if any party plot owner has not provided adequate parking facilities or has breached any rule or regulation, appropriate action shall be taken after hearing the concerned persons., The authorities shall enforce appropriate laws to address the problem of stray cattle and animals on the roads. Preventive as well as curative measures shall be taken, especially during the monsoon period. Persons who leave their cattle to stray on the roads shall be liable to appropriate action so that they are not tempted to repeat the offence. The State is directed to provide adequate police protection to the officer in charge of catching and impounding stray cattle and animals on public roads so that the work can be carried out effectively., If any encroachment is found on gauchar land, the concerned authorities shall take appropriate action to ensure that such land is made available for grazing cattle. Adequate gauchar land shall be maintained in accordance with the provisions of the Panchayat Act and other applicable laws., Telephone companies, electricity companies and other agencies that dig up roads for laying cables or pipelines shall obtain due permission from the Municipal Corporation, Development Authorities or Panchayats. They shall take maximum care not to damage the asphalted portion of the road. Permission shall be granted only on an undertaking that the party will fill up the trenches and resurface the road after completion, or that it will coordinate with the department responsible for repair and resurfacing so that the road is restored immediately. If the road is not resurfaced and an accident or damage occurs, the party that was granted permission shall be responsible and may be held personally liable for negligence., Despite the elaborate directions issued, they have not been complied with in spirit or letter, and the suggestions of this Court have not been taken seriously. As observed by the Division Bench of the Gujarat High Court, in State of Gujarat v. Secretary, LSW and TD Department 1982 (1) GLR 61, such inaction by government authorities would amount to criminal contempt as well as civil contempt. Considering the request of learned counsel for the Ahmedabad Municipal Corporation and the State Government, the directions are issued again to give an additional opportunity to the Corporation, its officers and the State Government to take effective steps to maintain motorable public roads, remove the menace of stray cattle and ensure smooth vehicular traffic. A further warning is issued that any future failure to implement these directions in true spirit shall be viewed very seriously and the heads of the administrative and elected wings of the Corporation, its officers and the officers of the State Government shall be held personally responsible for criminal or civil contempt., Having noticed the above, further directions are issued which shall be over and above those already issued by the Gujarat High Court in a series of decisions, including the decision of the Division Bench in Sharda Sahkari Gruh Mandali Limited and Others v. Ahmedabad Municipal Corporation and Others (supra). Non‑implementation or non‑compliance of any of these directions by the Ahmedabad Municipal Corporation, the State or their officers shall be deemed deliberate non‑compliance and may render them liable for action under the Contempt of Courts Act, 1971., Re: Problem of Public Roads and Service Roads – The Ahmedabad Municipal Corporation, its officers, agents, the State Government and its concerned authorities shall strictly and scrupulously follow and comply with the directions issued by the Division Bench of the Gujarat High Court in Sharda Sahkari Gruh Mandali Limited and Others v. Ahmedabad Municipal Corporation and Others (supra), particularly paragraphs 35 to 41 of that decision., There shall be proper and effective supervision and monitoring of construction, resurfacing and restoration of roads by the concerned officers of the Corporation as per the relevant rules, regulations, circulars and notifications issued from time to time. (i) The Engineering Department shall ensure that roads are reconstructed, resurfaced or restored as per specifications and quality, and the Assistant City Engineer of the concerned area shall certify that the work meets the specifications; the certification shall be counter‑signed by his superior and, after verification by the Accounts Department, payment to the contractor shall be made. (ii) If any certificate is found to be incorrect, inaccurate or false, the concerned officer of the Engineering Department shall be held personally responsible and may be liable for offences punishable under the Indian Penal Code in addition to disciplinary action. (iii) Each contract or tender notice shall specify the quality of the road; any deviation shall require the contractor to reconstruct the work within a defect liability period of not less than two to three years. (iv) Security deposit and performance security deposit or bank guarantee shall be set higher so that if the contractor fails to restore the road, the cost can be recovered from the deposit or guarantee, with a heavy penalty imposed on the contractor. (v) Payments to contractors shall be made only after the Assistant City Engineer certifies that the road has been constructed, resurfaced or restored as per specifications and prescribed quality, after verification of the claim based on measurements recorded in the Measurement Book, counter‑signed by his superior, certified by the Accounts Department and thereafter by the Audit Department., Overall constant supervision and monitoring shall be carried out by the Commissioner, Deputy Commissioner and the City Engineer of the Corporation, who as heads of the Corporation and its departments shall be responsible for compliance., With respect to the non‑finalisation of Town Planning Schemes for areas included in the Ahmedabad Municipal Corporation after the year 2006, the State Government Urban Development and Urban Housing Department, the Chief Town Planner, the Town Planning Department of the Ahmedabad Municipal Corporation and the Commissioner of the Ahmedabad Municipal Corporation are directed to ensure that the schemes are finalised at the earliest so that residents receive required infrastructural facilities such as roads, electricity and drainage. The appropriate authority shall exercise powers under Section 48A of the Gujarat Town Planning and Urban Development Act, 1976, pending finalisation of the schemes. All efforts shall be made to finalise the schemes within one year from today, as non‑finalisation is causing delay in road construction and provision of infrastructure., A proper survey, analysis and design shall be undertaken to produce a detailed technical analysis and design of existing road surveys. It is suggested to appoint a Project Management Consultant for road work to improve qualitative and quantitative progress. The Project Management Consultancy Services shall assist the Road Project Division and zonal works in day‑to‑day monitoring, quality testing, quantity checking, record keeping and allied works in road construction. The Ahmedabad Municipal Corporation engineers shall ensure that execution of works by contractors and the Project Management Consultancy is carried out as per tender specifications, terms and conditions. Bills shall be processed after verification of quality parameters, measurements and satisfaction of tender requirements, and the engineers’ roles and responsibilities shall be as per the Engineering Manual., The Corporation may consider making use of plastic waste in a compulsory proportion for construction of roads of a particular length to enhance durability, subject to the circulars and notifications of the Ministry of Road Transport and Highways., The Standing Committee and the concerned Committee shall consider the aforesaid proposal at the earliest, as the elected body also has a duty to resolve the problems of citizens and will be held responsible. Members of the various committees, including the Standing Committee, shall perform a proactive role in the larger public interest., Road Opening Permits shall henceforth have stringent terms and conditions regarding proper safety barricading, immediate reinstatement and timely maintenance till the end of the defect liability period. No Road Opening Permit or Road Digging Permit shall be granted during the monsoon season unless it is required for an emergent situation and certified by the head of the concerned department. Permits shall be backed by a time‑bound programme specifying the start date, duration, and completion date of the work. The road shall be restored or resurfaced by the permit holder within three days of completion. If the permit holder fails to restore the road within the stipulated period, the Corporation may restore the road at the permit holder’s cost, recoverable from a security deposit that shall be higher than the estimated cost of restoration. The security deposit shall vary according to the work and measurement. The Road Opening Permit shall expressly state that failure to reinstate the road within the stipulated time will result in the permit holder being barred from obtaining any future permission to open or dig the road. Restoration shall be monitored and certified by the Assistant City Engineer, and the department head who grants the permit shall ensure compliance., There shall be constant monitoring and supervision by higher authorities, particularly the Municipal Commissioner, of the work of the Engineering Department officers. After the present petition was filed, samples of the roads were sent to the Forensic Science Laboratory and the Gujarat Engineering Research Institute. Preliminary inquiry reports led to departmental inquiries, but no further action has been reported. The Commissioner of the Ahmedabad Municipal Corporation is hereby directed to initiate and complete departmental inquiries against erring officers and to ensure appropriate action is taken based on the merits of each case. The exercise shall be completed within three months and a report placed before the Gujarat High Court. The elected wing of the Corporation shall also see to it that these directions are complied with., Re: Traffic Problem – A proper study shall be conducted by the State Government and the Corporation on traffic congestion and bottlenecks in smooth movement of traffic. Important junctions may need to be redesigned using in‑house expertise or external experts, with an expert committee providing opinions. The Traffic Engineering Department shall extend full cooperation to the Traffic Police Department to ensure smooth movement of traffic at all important junctions in the city., The Estate Department shall ensure removal of all types of encroachments on roads and service roads that obstruct free movement of vehicles and pedestrians. Footpaths and service roads are meant for smooth movement of traffic and pedestrians; therefore, the Estate Department and the Traffic Police Department shall ensure that vehicles are not parked on roads or service roads surrounding shopping centres, restaurants, clubs, hospitals, educational institutions, commercial or office complexes, malls, religious places, parks, theatres, party‑plots, etc. Vehicles of visitors shall be parked in designated parking areas within the buildings, and roads or service roads abutting such establishments shall not be converted into permanent parking places. Notices shall be served to the management or owners of such establishments, stating that they are responsible for preventing parking on public roads or service roads., The Estate Department shall also ensure that adequate parking spaces are provided at the time of issuing Building Use Permissions as per the Gujarat Development Control Regulations. Timely inspections shall verify that the allocated parking spaces are not encroached after issuance of the permissions., Strict action shall be taken against persons who park their vehicles on public roads, particularly in No Parking zones and at crossroads or junctions. If parking is found in such areas, the police officer on duty shall be held personally responsible and may face disciplinary proceedings for dereliction of duty., Speed breakers and road bumps shall be constructed as per the design and size prescribed by the Indian Road Congress, subject to the requirements and needs of the road., The Commissioner of Police (Traffic) and the Commissioner of the Ahmedabad Municipal Corporation shall ensure that the aforesaid directions are complied with in their true spirit., A comprehensive mobility plan for Gujarat metros shall be prepared by the Government of Gujarat in accordance with the Ministry of Urban Development guidelines., To ensure safe and smooth mobility in the city, the mantra of E‑E‑E shall be followed: Engineering, Education of people and Enforcement of laws., Coordination between different departments of the Government shall be ensured, and periodical high‑level joint committee meetings shall be held once a month to provide appropriate solutions to the problems., Re: Cattle Menace – The directions issued by the Division Bench of the Gujarat High Court in Sharda Sahkari Gruh Mandali Limited and Others v. Ahmedabad Municipal Corporation and Others (supra) and the earlier directions referred to in that decision shall be fully and truly implemented. All efforts shall be made by the Corporation and the State Government to remove cattle from public roads, as stray cattle hinder smooth and safe movement of traffic, pose safety hazards and create hygienic problems., The Ahmedabad Municipal Corporation and the Commissioner of Police shall ensure that no person sells fodder or grass on public roads. Constant daily monitoring and supervision by the concerned police officers shall be undertaken, and the in‑charge of the police station shall be held personally responsible if any person is found selling fodder on a public road., The Municipal Corporation shall relocate stray cattle from the roads to gaushalas or institutions that provide shelter to stray cattle., For removal and relocation of stray cattle, the Municipal Corporation shall press into service a sufficient number of persons and vehicles for impounding and transporting the animals., Vehicles used for carrying impounded cattle and animals shall be fitted with ramps to avoid injury to the animals., The transit and handling of stray cattle and animals shall conform to the laws providing for their safety and prevention of injuries, including the Prevention of Cruelty to Animals Act, 1960., Cattle located in the city shall have a tag number tied around their necks indicating the name and address of the owner, so that tracing the owners is easy. This direction shall be carried out by the owners of the cattle, and enforcement shall be undertaken by the civic authorities., Prosecution shall be launched under the various penal provisions against owners of cattle found unattended on streets and roads., The Municipal Corporation shall employ a sufficient number of persons to catch stray cattle and animals found on roads and streets. Once caught, the animals shall be impounded and may be released to the owners upon payment of a fine and subject to other directions herein., The State Government shall assist the Ahmedabad Municipal Corporation in implementing the aforesaid directions, including providing financial assistance required to carry out the directions effectively., The Commissioner of the Ahmedabad Municipal Corporation shall nominate two officers, in addition to the Head of the Cattle Nuisance Control Department, who shall be responsible for carrying out the directions issued by this Court., As observed in the earlier order, the State Government shall find a permanent solution to the cattle menace, possibly by enacting an appropriate law on the lines of the State of Maharashtra., The above directions are over and above those already issued in earlier orders, including the direction to set up a permanent grievance redressal cell, registration of online complaints and toll‑free numbers, with periodical publicity so that citizens are aware of these facilities and can have their grievances attended to by the concerned department at the earliest., Before parting with the present order, the Gujarat High Court observes that citizens and residents of the city also have a duty to make their city a smart city or metro city. They must follow the law and traffic regulations. Government authorities alone cannot tackle such large issues; cooperation of citizens is essential. Citizens and residents are required to educate themselves and enforce laws and regulations. Media, both electronic and print, is an effective medium for educating people, and all must collectively make efforts to solve the issues and make Ahmedabad a smart city in its true sense., The concerned respondents and departments shall submit periodical compliance reports on the aforesaid directions bi‑monthly on the record of the present case, to be placed before the Gujarat High Court., The present petitions were heard on 7 August 2018. Shri Kamal Trivedi, learned Senior Advocate appearing for the Ahmedabad Municipal Corporation, submitted that after the earlier detailed directions were issued by this Court to tackle the problem of stray cattle on public roads, the Corporation has taken the following steps: (i) cattle impounding operation has been intensified by increasing the number of teams and decentralising operations; (ii) work is now being done 24 × 8; (iii) daily 110‑115 cattle are being impounded compared to 50‑60 earlier; (iv) Rs 10 lakh has been sanctioned for minor repairs at the panjrapole; (v) Rs 35 lakh has been sanctioned for building sheds at the Behrampura Cattle Pound to shelter the increased intake; (vi) more teams have been put in place; (vii) a penalty increase proposal has been approved by the Standing Committee and implemented (Rs 1,000 to Rs 3,000); (viii) daily upkeep charges have been doubled from Rs 500 to Rs 1,000., It is submitted that compulsory registration shall also begin within this week. The Cattle Nuisance Controlling Department is undertaking the activity of removing stray cattle from public roads with utmost zeal and sincerity. The penalty has been raised up to 200 percent by the Standing Committee of the Ahmedabad Municipal Corporation, and the Corporation has decided to apply a tag to stray cattle that are captured; if the same stray cattle is captured again, the fine against the owner shall increase.
id_1730	3	It is submitted that the above referred decision would result into deterrent effect against the owner of stray cattle and then they would not indulge into activity of keeping their cattle on road. Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of Ahmedabad Municipal Corporation has further submitted and stated at the Bar that the penalty amount recovered on account of cattle impounding shall be kept and maintained separately and shall be utilized for the purpose of betterment of the purpose of cattle at Panjrapole area as well as for creating awareness to reduce cattle nuisance on public streets. It is further submitted that the Ahmedabad Municipal Corporation shall provide for more amount to carry out the repairs, to provide for better facilities at Panjrapole and to increase the intake capacity. It is further submitted that the Ahmedabad Municipal Corporation shall declare certain roads as zero tolerant cattle nuisance road to begin with. It is further submitted that the Ahmedabad Municipal Corporation in consultation with the State Government shall identify the land or lands on the outskirt of the city for rehabilitating the cattle and the cattle owners. He has also stated at the Bar that all the action or necessary steps shall be taken to deal with or tackle the stray cattle problem on the public roads or streets., Ms Manisha Lavkumar, learned Government Pleader appearing on behalf of the State has stated at the Bar that all assistance shall be provided by the Police Department as and when required to remove the stray cattle from the public road or streets., Concerned respondents are directed to act as stated or submitted hereinabove and are also directed to comply with our earlier order or directions issued in our earlier order dated 11/05/2018, more particularly, the directions contained in paragraph numbers 29(19) to 29(3) so that the people or citizens may not have to suffer due to stray cattle on the public roads or streets. It is observed and directed that if anybody tries to interfere with any of the action taken by Ahmedabad Municipal Corporation and or its Officers in performing their duties, they shall be dealt with strictly. Nobody can be permitted to take the law in their own hands and nobody can be permitted to interfere with any public Officer in performing their duties as a public Officer., Now so far as the parking issues are concerned, Shri Kamal Trivedi, learned Senior Advocate has submitted that on an extremely busy road with heavy traffic and lack of space, multilevel parking on pay and use basis is an ideal solution and in fact it is the need of the day. It is submitted that at present there are three such multilevel parkings, Makrand Desai Parking at Relief Road; Kankariya Multilevel Parking at Kankariya, Maninagar and Navrangpura Complex at Navrangpura, which at present have total capacity of 1080 for two wheelers and 700 for four wheelers. It is submitted that upon survey it is found that the multilevel parking would also be necessary in other heavy traffic zones and areas having less open space., It is submitted that five such multilevel parking plots are proposed in such areas: 1. New West opposite Prahladnagar Garden, area 7189 sq. m; 2. New West near Arista Complex, Shindhubhavan Road, Bodakdev, area 9116 sq. m; 3. West Silver Star Cross Road, Chandlodiya, area 3964 sq. m; 4. South Shell Petrol Pump, near Hirabai Tower, Maninagar, area 7289 sq. m; 5. West Panjrapol Cross Road, Gulbai Tekra, Ahmedabad, area 7196 sq. m. Total area 34,754 sq. m., It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the Ahmedabad Municipal Corporation that in the fairly high traffic areas with open spaces available, the Corporation has identified 25 parking plots with total capacity of 11,792 two wheelers and 2,020 four wheelers. It is further submitted that these parking plots are already available for parking at token fees. It is further submitted that the Corporation has identified 48 more such parking plots all over the city of Ahmedabad with total parking capacity of 20,984 for two wheelers and 3,171 for four wheelers. It is submitted that the list of such 25 operational parking plots and 48 proposed parking plots are at Item Nos.2 and 3 with the written submissions. It is submitted that such parking plots shall be made operational within a period of 10 days of the order by recovering token parking charges., It is further submitted that the Corporation has also identified 21 parking spaces available under the flyovers in the city of Ahmedabad and the Corporation has to frame proper policy in administering the aforementioned parking spaces with uniformity so as to put the parking spaces to its maximum utilization, for which the Corporation as well as the Traffic Police shall give wide publicity with the use of print or electronic media, social media, radio programme and, if necessary, by providing special application to cater to the specific need of parking of an individual., It is submitted by Ms Manisha Lavkumar, learned Government Pleader appearing on behalf of the respondent State that on 06/08/2018, a joint meeting was convened between higher Officers of the Police Department and the higher Officers of the Ahmedabad Municipal Corporation to discuss the parking issue in the city. It is submitted that the authorities are also seriously considering to provide on‑road parking, after having proper study and consultation with the traffic department, however depending upon the width of the road., Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the respondent Ahmedabad Municipal Corporation as well as Ms Manisha Lavkumar, learned Government Pleader appearing on behalf of the respondent State and the Traffic Department has submitted that nobody shall be permitted to park any vehicles on the public roads and even nobody shall be permitted to sell anything on the public roads or streets and no encroachment on the public roads or streets shall be permitted and all effective steps shall be taken to remove the encroachment from the public roads or streets., It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of Ahmedabad Municipal Corporation that wherever in the old buildings, commercial or residential, any parking space is regularized on certain terms and conditions and if it is found that there is breach of such terms and conditions, appropriate steps shall be taken. He has stated at the Bar that there shall not be any regularization of the encroachment on the parking space or spaces reserved for parking, henceforth. It is submitted that there shall be strict implementation of parking space on the upcoming constructions. It is submitted that wherever breach of plan is found insofar as parking space is concerned, forthwith recall of the sanctioned plan after following the procedure as required or after following the principles of natural justice shall be done., It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of Ahmedabad Municipal Corporation that to reduce traffic at S.G. Highway, the Ahmedabad Municipal Corporation, AMTS has started Route No.501 (Vaishnodevi Express) and in view of such facility, citizens would be getting the facility of bus transport frequently at every ten minutes between Vaishnodevi Temple and Ujala Circle and total distance of the route is about 18.3 km. It is submitted that the cost of the ticket is very nominal i.e. that is Rs. 5, Rs. 10 and Rs. 15 and about almost 7,200 passengers are using such facility on daily basis., It is further submitted that as per the present strength, there are total 700 AMTS buses over and above BRTS buses plying on the road providing public transport to the citizen of Ahmedabad and the existing strength includes 450 mini buses, 08 mini buses and 200 regular buses. It is submitted that the Corporation has introduced mini buses by considering the traffic situation of Ahmedabad so that small size buses can be used for public transport which would ultimately reduce traffic problem to a great extent. It is submitted that AMTS has proposed to purchase 50 new AC electric mini buses, plus 10 mini CNG buses, plus 100 mini CNG buses (Non AC) and 100 regular AC buses. It is submitted that the Corporation is in the process of strengthening the public transportation so as to reduce traffic problem within the city limits of Ahmedabad. He has stated at the Bar that the Ahmedabad Municipal Corporation would initiate programme to the drivers of the BRTS and AMTS buses and if need be concerned expert authorities would be consulted for the purpose of training. It is submitted that the drivers of BRTS and AMTS buses who are found to be not parking the buses at the bus stand properly, show cause notice shall be issued to them and in fact are already issued., Ms Manisha Lavkumar, learned Government Pleader appearing on behalf of the respondent State and the Traffic Department has submitted that to tackle with drivers, State Government is committed to take necessary steps. It is submitted that for the aforesaid 47 Police Stations were consulted so that specific pick up points for auto rickshaw can be made. It is submitted that after such consultation 25,000 points are earmarked as pick up points for auto rickshaw. It is submitted that such parking points should be under constant monitoring of the Traffic Department as well as Ahmedabad Municipal Corporation so as to restrict the auto rickshaw within the area provided. It is submitted that the Traffic Police as well as the Ahmedabad Municipal Corporation shall ensure that such allotted pick up spots are kept open and freely available for the very purpose and shall be kept free from any encroachment by temporary or permanent structures., It is further submitted by Ms Manisha Lavkumar, learned Government Pleader appearing on behalf of the State that the State Government has decided to undertake training to auto rickshaw drivers, who are 1 lakh in numbers, and to BRTS as well as AMTS drivers through trained persons with the help of latest technology and specific audio video modules. It is submitted that badges and uniforms shall be provided to the auto rickshaw drivers. It is submitted that after completion of the training course, proper certificate would be provided to auto rickshaw drivers. It is further submitted that to create awareness and to educate children on the traffic laws, the Traffic Department – State Government is planning to undertake activities with schools as well as NGOs for imparting traffic knowledge to students and citizens respectively. It is submitted that the Traffic Department is already having Transport Education Awareness Mobile (TEAM) for bringing traffic awareness. It is submitted that it is pursuant to such programme nearly 6.5 lakh students and 21 lakh citizens have been imparted awareness training by now. It is submitted that there is already a special number i.e. that is 1095 for making complaints with regards to the traffic issues and whatever complaint is received on such number with respect to any traffic problem or congestion of traffic in a particular area or road, on receipt of such information, concerned respondents are directed to act as above as well as shall comply with our earlier directions contained in our earlier order dated 11/05/2018 in Writ Petition No.170/2017 and various orders passed in the present proceedings from time to time., It is reported that by taking further steps, after the detailed directions were issued by the Gujarat High Court, there is lot of improvement because of the teamwork and the work done jointly by the traffic department as well as the Officers of the Ahmedabad Municipal Corporation. It is submitted that there is awareness created in the minds of the common people and they have started understanding or realizing the value of time. It is reported that because of various steps taken to deal with the traffic issue and the encroachments are removed, approximately 30 to 40 percent time of the common people or citizen is saved. As observed in the earlier order, under the able leadership of the Commissioner of Police, Ahmedabad as well as the Commissioner, Ahmedabad Municipal Corporation and the collective steps taken by the Officers of the concerned Department and the constant guidance and support from the State Government, things have improved. Concerned respondents are directed to continue to take steps. Every citizen must appreciate and understand that on one hand they were right and on the other hand they have certain duties also, and therefore, now the citizens also have to play an important role and fully cooperate with the concerned Department while taking the steps to deal with the traffic issue. All must consider the city of Ahmedabad as their own city., In view of the above and for the reasons stated in the earlier order dated 11/05/2018, Writ Petition No.170/2017 stands disposed of with the following directions: Problem of Public Roads or Service Roads (1) The Ahmedabad Municipal Corporation, its officers, agents, as well as the State Government and its concerned authorities shall strictly and scrupulously follow and comply with the directions issued by the Division Bench of the Gujarat High Court in the case of Sharda Sahkari Gruh Mandali Ltd. and Ors. v. Ahmedabad Municipal Corporation and Ors., more particularly, in Paragraphs 35 to 41 of the said decision. (2) There shall be proper and effective supervision and monitoring of the construction, resurfacing, restoration of roads by the concerned officers of the concerned Departments of the Corporation as per the relevant Rules and Regulations, Circulars, Notifications, etc. issued from time to time with respect to entrustment and delegation of powers, more particularly, for maintenance of roads as per Manual‑II, Regulation and Delegation of Powers of the Corporation, namely: It will be the duty of the Engineering Department of the Corporation to see that roads are reconstructed, resurfaced, restored as per the specifications and quality and that the Assistant City Engineer of the concerned area shall certify, after construction, resurfacing, restoration of the road that the road is constructed, resurfaced, restored as per the specifications and as per the quality, which shall be counter‑signed by his superior and then only after the same is certified by the Accounts Department, and audit, payment to the concerned Contractor shall be made. If any Certificate is found to be incorrect or inaccurate or false, the concerned Officer of the Engineering Department shall be held personally responsible and, over and above disciplinary action, he or she may be made liable for the related offences punishable under the Indian Penal Code also. The Municipal Corporation shall see to it that in each contract or tender notice, there shall be specification of the quality of the road and if there is any deviation found, the Contractor concerned shall reconstruct the same within the Defect Liability Period which shall not be less than two to three years. That the Security Deposit and Performance Security Deposit or Bank Guarantee shall be higher so that ultimately, if the Contractor does not restore the road or reconstruct the road as per the specifications, then in that case, same can be restored or reconstructed at the cost of the Contractor which can be recovered from the Security Deposit or Performance Security Deposit or Bank Guarantee. In such an eventuality, the Contractor shall also be saddled with heavy penalty. Payments to the Contractors shall be made only after the Assistant City Engineer of the concerned area certifies, after construction, resurfacing, restoration of the road, that the road is constructed, resurfaced, restored as per the specifications and as per the prescribed quality, and only after the proper verification of the claim which shall be on the basis of the measurement noted in the Measurement Book and after the same is counter‑signed by his superior and certified by the Accounts Department and thereafter by the Audit Department. (3) There shall be overall constant supervision and monitoring by the Commissioner, Deputy Commissioner and the City Engineer of the Corporation as ultimately, being the Heads of the Corporation or Departments, they shall be responsible. (4) So far as non‑finalisation of the Town Planning Schemes with respect to the areas included in the Ahmedabad Municipal Corporation, more particularly, those included after the year 2006, is concerned, the State Government Urban Development and Urban Housing Department, the Chief Town Planner, the Town Planning Department of the Ahmedabad Municipal Corporation and the Commissioner, Ahmedabad Municipal Corporation, are hereby directed to see that the Schemes are finalised at the earliest so that the residents of those areas may get the required infrastructural facilities such as roads, electricity, drainage, etc. The Appropriate Authority or Competent Authority shall exercise powers under Section 48A of the Gujarat Town Planning and Urban Development Act, 1976, pending finalisation of the Town Planning Schemes. However, all endeavour shall be made to finalise the Town Planning Schemes at the earliest, but not later than one year from today, as it is reported that because of non‑finalisation of the Town Planning Schemes, roads are not constructed and infrastructural facilities are not provided to such areas. (5) That there shall be proper survey, analysis and design so that there shall be a detailed technical analysis and design of existing road surveys, etc. Therefore, it is suggested to appoint a Project Management Consultant for road work to improve the qualitative and quantitative progress of road work as empanelment of Project Management Consultancy Services may help the Road Project Division as well as zonal works for the purpose of carrying out day‑to‑day monitoring, quality testing, quantity checking, record keeping and allied works in road construction. The AMC engineers shall ensure that the execution of works by the Contractors and Project Management Consultancy are carried out as per the tender specifications, terms and conditions and, as observed hereinabove, the bills shall be processed after verification of the quality parameters, measurements and on satisfying the tender requirements and the roles and responsibilities of the Engineers shall be as per the Engineering Manual. (6) The Corporation may also consider exploring the possibility of making use of plastic waste in certain proportion compulsory in case of construction of roads of a particular length to have more durability. However, for the same, the Corporation may consider the Circulars or Notifications of the Ministry of Road Transport and Highways regarding the same. (7) The Standing Committee and the concerned Committee shall consider the aforesaid proposal at the earliest as it is the duty of the elected body also to resolve the problems of citizens as ultimately, they also will be responsible. Members of the various Committees, including the Standing Committee, shall perform a proactive role in the larger public interest. (8) That the Road Opening Permits henceforth shall have stringent terms and conditions regarding proper safety barricading, immediate reinstatement and timely maintenance till the end of the Defect Liability Period. That no Road Opening Permit or Road Digging Permit shall be granted firstly in the monsoon season unless the same is required for emergent situation for which the head of the concerned Department of the Corporation shall certify such emergent need. Further, no Road Opening Permits or Road Digging Permits shall be granted unless the same are backed by a time‑bound programme, namely the date on which the digging work will start, the number of days for which the same will continue, the specific date on which the work for which the Road Opening Permit is granted will be over, and that immediately but not later than three days, the road shall be restored or resurfaced by such permit holders who have been granted Road Opening Permits for their own projects or work. The roads must be restored or resurfaced in a proper condition by such permit holders only and if the roads are not restored or resurfaced by the concerned Road Opening Permit holders within the time stipulated in the application, in that case only, the Corporation may reinstate, resurface, restore the road at the cost of such Road Opening Permit holders which shall be recovered by the Corporation from the Security Deposit which shall always be higher than the proposed cost for resurfacing or restoration. Therefore, the Security Deposit or Deposit shall vary from work to work and looking to the measurement or area. In the Road Opening Permit itself, it shall be specifically mentioned that if the road is not reinstated and or restored and is not made motorable within the stipulated period of time, then in that case, in future, the concerned permit holder shall not be granted any permission to open the road or to dig the road. As regards whether the road for which the permission to dig is granted is restored and or reinstated, or not, the same shall be monitored and supervised by the Head of the Department who grants such Road Opening Permit and that it shall be so certified by the Assistant City Engineer. It shall be the duty of the concerned Officers of the Department of the Corporation to see that after digging, roads are reinstated or resurfaced or restored appropriately so that in future, there shall not be possibilities of potholes or holes. (9) There shall be constant monitoring or supervision by the higher authorities, more particularly, the Municipal Commissioner on the work of the concerned officers of the Engineering Department. After the present petition was filed, the samples of the roads were sent to the FSL and the laboratory, namely the Gujarat Engineering Research Institute, and it is reported that on the basis of the preliminary inquiry reports, departmental inquiries have been initiated. However, thereafter, nothing further is reported to have been done. Under the circumstances, the Commissioner, Ahmedabad Municipal Corporation, is hereby directed to initiate and complete the departmental inquiries against such erring officers and to see that appropriate action is taken against such concerned erring officers based on the merits of each case, as but for their negligence or connivance, the conditions of roads would not have been in such a poor or damaged state. The aforesaid exercise shall be completed within a period of three months and report on the same shall be placed before the Gujarat High Court in the present proceedings. The elected wing of the Corporation also to see to it that the aforesaid directions are complied with. Re: Traffic Problem (10) Now so far as traffic problem faced by the citizens or residents of the city is concerned, it is directed that there shall be a proper study conducted by the State Government and the Corporation. There shall be an in‑depth study of the traffic problem, more particularly, congestion of traffic and the bottlenecks in smooth movement of traffic is required to be studied and found out so that further corrective measures can be taken. In many cases, important junctions are required to be redesigned using in‑house expertise or with the help of external experts to bring out the solution relating to the problem of traffic. The Traffic Engineering Department of the Corporation therefore shall extend complete cooperation to the Traffic Police Department to ensure smooth movement of traffic at all important junctions in the city. If required, important junctions shall be redesigned using in‑house expertise or with the help of external experts to bring out the solutions of the problems related to traffic and for which there shall be an expert opinion of the Committee consisting of experts. (11) That the teams of the Estate Department shall ensure removal of all types of encroachment on roads which are obstructing free movement of vehicles as well as pedestrian movement. Footpaths and service roads are meant for smooth movement of traffic and pedestrians. Therefore, the Estate Department of the Corporation and the Traffic Police Department are hereby directed to ensure removal of all types of encroachments on roads or service roads which are obstructing free movement of vehicular traffic. The concerned Departments of the State Government as well as the Corporation, more particularly, the Traffic Police Department and the Estate Department and the Commissioner of Police, Ahmedabad City, are directed to see that the vehicles are not parked on roads or service roads surrounding the shopping centres, restaurants, clubs, hospitals, educational institutions, commercial or office complexes, malls, religious places, parks, theatres, Party‑Plots etc. and they shall see to it that the vehicles of people visiting such places are parked in the parking place in such buildings itself and that the roads or service roads situated in front of or abutting such shopping centres, restaurants, clubs, hospitals, educational institutions, commercial or office complexes, malls, religious places, parks, theatres, Party‑Plots etc. are not converted into their permanent parking place. Therefore, the concerned Departments shall first serve notice or notices upon the management or owners or proprietors or trust etc. of the concerned shopping centres, restaurants, clubs, hospitals, educational institutions, commercial or office complexes, malls, religious places, parks, theatres, Party‑Plots etc. which are having their buildings abutting the roads or service roads with a specific mention that if any of the visitors to such places park their vehicles on road, it will be the responsibility of the concerned management or owners or proprietors or trust etc. to see to it that vehicles are not parked on public roads or service roads. (12) The teams of the Estate Department of the Corporation shall also ensure that adequate parking spaces are provided at the time of issuing Building Use Permissions as per the GDCR. Correspondingly, it shall be ensured by timely inspections that the allocated parking spaces in the structures are not encroached after the issuance of Building Use Permissions. (13) Strict action shall be taken against those who park their vehicles on public roads, more particularly, in No Parking Zone. No parking shall be allowed, at least on crossroads or junctions. If ultimately, the parking is found on crossroads and No Parking Zones, the concerned Police Officer on duty at the particular point shall be held personally responsible for allowing such parking for which such officer shall be liable for disciplinary proceedings for dereliction in duty, etc. (14) The speed breakers or bumps on the roads shall be constructed as per the design and size as per the rules and regulations of the Indian Road Congress as far as possible however, subject to the requirements and need. (15) The Commissioner of Police (Traffic) and the Commissioner, Ahmedabad Municipal Corporation are directed to see that the aforesaid directions are complied with in its true spirit. (16) Comprehensive Mobility Plan for Gujarat metros shall have to be prepared by the Government of Gujarat as per Ministry of Urban Development Guidelines. (17) To ensure safe and smooth mobility in the city, the mantra of E‑E‑E, that is: Engineering, Education of People and Enforcement of laws, has to be followed. (18) There shall be coordination between different Departments of the Government and there shall be periodical high level joint committee meetings once in a month to ensure appropriate solutions to the problems. Re: Cattle Menace (19) Now, so far as the stray cattle menace and the problem of cattle on public roads is concerned, the directions issued by the Division Bench of the Gujarat High Court in the case of Sharda Sahkari Gruh Mandali Ltd. and Ors. v. Ahmedabad Municipal Corporation and Ors. and the earlier directions referred to in the said decision shall be fully and truly implemented. All efforts shall be made by the Corporation and the State Government to remove cattle from public roads because stray cattle on the roads are not only hindering the smooth and safe movement of traffic but are also very dangerous and sometimes fatal and are likely to create hygienic problems also. (20) The Ahmedabad Municipal Corporation as well as the Commissioner of Police are hereby directed to see that no person sells fodder or grass on public road and they shall see to it that there shall be constant daily monitoring and supervision by the concerned Police Officers of the concerned area and if at all it is found that any person is selling grass or fodder on public road, the in‑charge of the concerned Police Station shall be held personally responsible. (21) Municipal Corporation shall relocate stray cattle from the roads to Gaushalas or institutions made for providing shelter to stray cattle. (22) For removal of stray cattle from roads and for the relocation to the Gaushalas etc., the Municipal Corporation shall press into service sufficient number of persons and vehicles for impounding and relocating animals. (23) The vehicles which are used for carrying impounded cattle and animals shall be fitted with ramps in order to avoid the chances of injury to them. (24) The transit and handling of the stray cattle and animals will be in conformity with the laws providing for their safety and prevention of injuries to them including the Prevention of Cruelty to Animals Act, 1960. (25) The cattle located in the city shall have a tag number tied around their necks and the tag number should be indicative of the name and address of the person to whom the animal belongs so that there will be no difficulty in tracing their owners. This direction shall be carried out by the person or persons owning the cattle. The enforcement of this condition shall be made by the civic authorities. (26) Prosecution should be launched under the various penal provisions against the owners of such cattle which are found on streets and roads unattended. (27) The Municipal Corporation shall employ sufficient number of persons to catch stray cattle and animals found on roads and streets. Once they are caught, they shall be impounded and may be released to owners on payment of fine and subject to other directions mentioned herein. (28) The State Government shall assist the Municipal Corporation, Ahmedabad, in securing the implementation of the aforesaid directions. This may include financial assistance which would be required by the Municipal Corporation of Ahmedabad to carry out the directions contained in this order effectively. (29) The Commissioner of Ahmedabad Municipal Corporation shall nominate two officers, over and above the Head of the Cattle Nuisance Control Department who shall be responsible for carrying out the directions issued by the Gujarat High Court. (30) As observed in the earlier order, the State Government to find out a permanent solution of cattle menace, may be by enacting appropriate law on the lines of State of Maharashtra. Therefore, the State Government may consider the same.
id_1730	4	Over and above the above directions, it is further directed that the Commissioner, Ahmedabad Municipal Corporation, Ahmedabad shall see to it that the quality of roads is maintained and that payment to the contractors is made only after considering the measurement books and the directions issued hereinabove. Considering that the amount paid for the purpose of construction of roads etc. is public money, the Commissioner may also place information with respect to spending the amount, including the measurement of roads, in the public domain, as Ahmedabad Municipal Corporation is the custodian of the public money and the people whose money is being spent have a right to know where their amount is being spent., We are of the opinion that the fine or penalty collected while impounding stray cattle should be used for the betterment of the panjrapole and/or for rehabilitating the concerned owners of the cattle., To ease the traffic problem, the State Government and Ahmedabad Municipal Corporation shall increase public parking places and see to it that more public parking places are made available. The State Government and/or Ahmedabad Municipal Corporation may also consider, after following due procedure of law, the decisions regarding regularisation of parking places in commercial buildings and whether such regularisation is permissible under law. The State Government and Ahmedabad Municipal Corporation shall also increase public transport facilities to ease the traffic problem in the city of Ahmedabad and other cities. The State Government may also consider implementing the present directions in other cities of the State that are reported to have the same problems and where citizens are facing similar difficulties., It is further observed that the State Government and Ahmedabad Municipal Corporation may seriously consider utilising the amount of penalty or fine collected for traffic violation rules for better facilities such as public transportation, public parking places and other similar facilities., Shri Anand Yagnik, learned Advocate, has made a grievance that approximately 7,500 vendors would be affected and therefore the Street Vendors (Protection of Livelihood and Regulation of Street Vending) policy, which has been in force for many years, is required to be implemented. Their grievance may be looked into and considered subject to availability of space or lot. However, it is made clear, and as observed by the Honourable Supreme Court of India in the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Others reported in (1997) 11 SCC 121, that unauthorized encroachment of pavement dwellers affects pedestrians’ right to free passage and also creates unhygienic ecology, traffic hazards and risk to lives of pedestrians. The Municipal Corporation is entitled to remove the encroachments without any delay, for if it allows the encroachers to remain in settled possession for a long period, they may claim a semblance of right. Accordingly, the Corporation may also take into consideration the decision of the Honourable Supreme Court of India in the case of Nawab Khan Gulab Khan and Others (supra)., In view of the above and for the reasons stated hereinabove, Writ Petition No. 170/2017 stands disposed of in terms of the various directions issued by the Gujarat High Court from time to time, more particularly the directions contained in the earlier interim order dated 11/05/2018., Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of Ahmedabad Municipal Corporation, and Ms Manisha Lavkumar, learned Government Pleader appearing on behalf of the respondent State as well as the Traffic Department, have stated at the Bar that they have assured the Gujarat High Court that the directions issued by the Gujarat High Court from time to time, more particularly the directions issued in the earlier order dated 11/05/2018 and the directions issued today, shall be complied with in their true spirit and that the steps taken are not temporary but shall continue till the ultimate goal of smooth traffic on public roads and streets is achieved, which is in the larger public interest. Both of them have stated that all efforts shall be made by the concerned Department and the officers of the State Government to make the city of Ahmedabad a smart city in the real sense and in line with its status as a heritage city. With the hope and trust that all will perform their duties earnestly to make Ahmedabad a smart, clean and heritage city, Writ Petition No. 170/2017 stands disposed of, however, with a direction that periodically bi‑monthly action‑taken reports shall be placed on record of the present proceedings before the Bench of which one of us is a party., Before parting with the present order, we once again appreciate the steps taken by the State Government, the Corporation and all its officers, including the Commissioner of Police, Ahmedabad City, and the Commissioner, Ahmedabad Municipal Corporation, for taking necessary steps considering the interest of the citizens of Ahmedabad to make the city a smart, clean and heritage city. In view of the disposal of Writ Petition No. 170/2017, Civil Application Nos. 1/2017, 2/2018, 3/2017, 6/2018, 7/2018, Writ Petition No. 230/2016 and Writ Petition No. 199/2017 also stand disposed of., With respect to Civil Application No. 3/2018, it is reported that Ahmedabad Municipal Corporation has already issued a notice for change of user in the cellar. Ahmedabad Municipal Corporation is hereby directed to take appropriate steps on such notice at the earliest but not later than four weeks from today, after following due procedure as required. With this, Civil Application No. 3/2018 stands disposed of., With respect to Civil Application No. 5/2018, as departmental inquiries are pending, we refrain from passing any further order and the application stands disposed of., With respect to Letters Patent Appeal No. 541/2017, Shri Japee, learned advocate appearing on behalf of the appellants, seeks permission to withdraw the present appeal with liberty to pursue the representation. Without expressing anything on the merits of the representation, the Letters Patent Appeal stands dismissed as withdrawn. It will be open for the appellants to pursue the representation for which the Gujarat High Court has not expressed any opinion on the merits.
id_1730	5	Parking Policy for Surat City shows that parking lines up on most of the corridors, creating congestion, chaos and pollution, which impacts the mobility and livability in the city and saturates the central area. Double‑lined parking along the streets is a common sight with clogged up unorganized parking at intersections. As per the survey, Central Surat (with the exception of ring road and railway station) has street parking facility for 56 vehicles whereas the parking demand reaches to about vehicles. This leads to encroachment of access paths, traffic disruption and an unsafe condition. While on‑street parking is fully occupied, the off‑street parking is underused. There are 16 off‑street parking facilities (including below flyover) accommodating around 3,014 vehicles, however most are unoccupied. It is estimated that about 47.5 % of the road space is lost to parking. In terms of value, land worth Rs 14.39 crore is used for parking. The parking surveys show that maximum parking demand in the central area is for a short stay of less than an hour. Mostly two‑wheelers are parked randomly along the road. In terms of percentage, 47 % of the parked vehicles were two‑wheelers and 28 % were cars followed by 23 % three‑wheelers. Trucks and light commercial vehicles are commonly observed for freight and goods supply. The worst impacted areas due to high parking demand are commercial areas like Bombay Market, Ghod‑Dhod Road, Ring Road, Varacha Road, Lambe Hanuman, Athwa Gate, Bahumali, Chowk area, Rander Road, Anan Road etc. Schools, hospitals, temples, stadiums and other areas experience high parking demand as well. Most of this parking is free or nominally charged., As per the legal provisions specified in the Gujarat Provincial Municipal Corporation Act of 1949, the Surat Municipal Corporation (SMC) owns the public street and is responsible for providing and maintaining parking facilities. Parking enforcement, however, is done by the Traffic Police, who fine and/or tow away illegally parked vehicles. Often they cannot enforce due to lack of adequate traffic policemen or lack of equipment to tow away vehicles. In most cases, traffic police are stationed at major intersections on the roads and streets. This leads to situations where parking violations occur frequently, leading to traffic congestion, safety issues for all users and a general sense of chaos and disorder on streets. It has been found that traffic police departments should partner with local bodies to enforce parking policy for efficient management. Thus it is recommended that for parking management efficiency, enforcement responsibilities should be shared with the municipal corporation., There has been extensive research in the area of parking policy and management around the world. Paul Barter identified three clear approaches as shown in Figure 2.1: the conventional approach, the management approach and the market approach. The conventional approach aims to provide supply to meet demand, treating parking as infrastructure that needs to be provided by government conveniently located. Within this approach, some cities adopt a pure demand‑supply model, while others estimate demand after considering land use, activities and public transport demand. The management approach treats parking policy as demand management, creating programs that may pursue multiple objectives such as urban regeneration, mobility and conflict reduction, or a single objective of constraining parking demand. The market approach considers parking equivalent to other market commodities; spillover is not viewed as negative but as an indicator of price sensitivity. Pricing is used to achieve equilibrium between demand and supply – too high a price leaves spaces vacant, too low a price causes queuing and cruising. Donald Curran Shoup is regarded as an expert in the economics of parking and advocates the market approach., Cities set parking requirements which specify the minimum amount of parking that has to be provided, commonly known as parking minimums, through building by‑laws. The requirements can be expressed as Equivalent Car Space (ECS) per unit area or as ECS for a number of seats in an auditorium, students in a school, etc. The figure below compares trends in ECS for commercial car parking in different Indian and foreign cities. Most Indian cities, including Surat, have increased parking minimums over the years, whereas cities such as Singapore and Hong Kong have reduced minimums to prevent congestion. Building by‑laws that mandate high parking minimums can lead to under‑utilized parking supply, an economically valuable asset, because they do not take into account factors such as proximity to transit or the potential for parking sharing., The old paradigm viewed parking problems as inadequate supply and advocated abundant parking provision, rigid parking requirements and the belief that parking management is a last resort. The new paradigm is based on a management and market‑based approach, recognizing that both too much and too little supply can be harmful. Parking requirements should be applied flexibly to reflect each particular situation. Parking management programs should be used to prevent congestion, and the market should respond to demand. Subsidies in parking are discouraged as they may subsidize the rich; instead, parking charges should reflect the true value of land occupied., The National Urban Transport Policy (NUTP) of 2006 states that parking can be used as a demand‑management tool. It recommends that parking price should truly represent the value of land occupied and be used to make public transport more attractive. The policy advises giving preference in allocation of parking spaces to public transit vehicles and non‑motorized transport, and adopting a graded scale of parking fees. Multi‑level parking complexes should be made mandatory in city centres with high‑rise commercial complexes, and such complexes would be given priority under the Jawaharlal Nehru National Urban Renewal Mission (JNURM) funding scheme. The NUTP also calls for integrating parking policies with broader urban transport objectives rather than using parking infrastructure solely as a source of revenue., The last Comprehensive Mobility Plan (CMP) for Surat was prepared in 2008 and was the first CMP prepared in India. The plan identified a parking policy and a demand‑management system as key strategies to achieve its objectives. A draft parking policy suggested a sustainable parking management system for Surat, including elimination of parking on all arterial roads, on‑street parking restrictions on local streets, and provision of separate short‑stay parking facilities for business users, entertainment and tourist visitors, office visitors and residents. It recommended protecting short‑stay parking from long‑stay use through appropriate pricing structures, discouraging overnight parking of heavy vehicles, and mandating areas for high‑mobility vehicles and transport hubs or truck terminals. The policy also emphasized that parking pricing should be judiciously devised to manage demand and encourage use of public transport, and that control of on‑street parking should improve traffic flow and safety.
id_1730	6	A draft parking policy for Surat proposes a sustainable parking management system. Parking facilities may be required for business users and entertainment venues and should be regulated by time restrictions or by preventing or discouraging parking of vehicles owned by owners and employees of establishments such as short‑haul buses, trucks, omnibuses, tourist buses, vans, water tankers and container lorries. The policy mandates provision of areas for heavy motor vehicles and creation of transport hubs. All street parking shall be licensed by the competent authority, the Surat Municipal Corporation. Parking pricing shall be judiciously devised to manage demand, improve traffic flow and safety, and minimise stay‑parking sites for all types of vehicles operated in the city. The system shall support short‑term parking on arterial roads, be supported by appropriate technology, and include charging for parking., Private vehicles require enormous terminal capacity and typically stay parked for long periods. A private vehicle usually remains parked for 20‑22 hours a day (80‑92 % of the time). A car parked on the street consumes about 15 sq m, while off‑street parking requires about 23 sq m. If each car requires three parking spaces per day, the total area needed per car ranges between 45 and 70 sq m. These figures demonstrate that providing additional parking is not a sustainable solution., The absence of a comprehensive parking policy in Surat has led to independent dealing of parking issues by multiple stakeholders, resulting in contradictory projects that often require high investment and address only short‑term problems. Surat needs a holistic vision with strategic objectives that are in sync with Surat’s overall transport policy, the statutory Development Plan, and the Development Control Regulations. The strategic intent of the policy is to manage demand through pricing and other means, to reduce private vehicle usage and dependency through Travel Demand Management, and to support public transport use wherever possible., The overarching principle for parking in Surat is to progressively reduce the demand for parking and to facilitate organised parking for all vehicle types. Surat shall pursue demand‑management rather than capacity augmentation, promote high‑quality public and non‑motorised transport, and apply parking pricing and time limits as key management mechanisms to enhance turnover of parking bays and ensure access in high‑demand areas. Charges shall be differentiated based on demand, with premium areas—identified as zones with high land value or rentals—subject to higher rates, as recommended by Barter and Litman (2013)., Time‑based parking charges shall apply to all categories of vehicles. Roads less than 12 m in width shall be prohibited from on‑street parking. On 12 m roads, parallel parking shall be allowed on one side of the road, the side being decided by the day of the week (e.g., Mondays, Wednesdays and Fridays on one side; other days on the opposite side). Differential pricing shall be based on vehicle size and duration of parking; bicycles shall be exempt from charges. A base rate shall be fixed for two‑wheelers, auto‑rickshaws (passenger and commercial), Light Commercial Vehicles and Heavy Commercial Vehicles, with charges proportional to the on‑street space occupied. Off‑street parking shall be priced lower than on‑street parking, with a reduced rate for the first three hours to encourage use of off‑street facilities. Parking revenue shall not be treated as profit‑making but shall be used for local road‑improvement schemes in consultation with stakeholders. The Surat Municipal Corporation’s traffic cell shall manage the revenue, with revisions every three years. The approach is similar to Mexico City’s EcoParq initiative, which allocates 30 % of parking revenue to public‑space improvements., The Surat Municipal Corporation is empowered to enforce parking management under Section 36 of Section 458 of the Gujarat Provincial Municipal Corporation Act, 1949. A Traffic Cell, headed by a Director (Traffic) of the rank of Executive Engineer or above, shall be formed, with Traffic Enforcement Officers responsible for monitoring violations, towing and clamping offending vehicles, and imposing fines. Private agencies may be appointed through transparent competitive bidding for collection of fees, penalties, towing and management of parking areas, including parking lots under bridges, flyovers and municipal plots. All on‑street parking spaces shall be designed in accordance with Indian Roads Congress (IRC) SP 12 2015, marked with white lines, and signed as per IRC 67 2001. At least 10 % of parking spaces shall be reserved for persons with disabilities. No‑parking zones shall be established at least 75 m from junctions and 10 m from zebra crossings. Demarcation shall commence on roads with Right‑of‑Way greater than 24 m, followed by those with 12‑24 m., Currently, parking is free or inexpensive, which does not influence vehicle‑purchase decisions. The Central and State Governments have indicated the intention to make it mandatory for new vehicle owners to provide proof of available parking within a 250 m radius of the address at the time of purchase. Surat shall adopt these rules and revise its minimum parking standards. Minimum parking requirements shall be linked to land use, proximity to transit, availability of off‑street parking facilities, and shared‑parking arrangements. The city shall encourage sharing of parking spaces among schools, hospitals, factories, banks, parks and malls to improve efficiency. Minimum standards shall be progressively reduced, with reductions of up to 25 % near transit corridors, following examples from Paris, Strasbourg and the Netherlands’ ABC policy (1 space per 10 employees near transit, 1 per 5 at moderate distance, 1 per 2 where transit is scarce). The Surat Municipal Corporation shall publish an updated map of revised parking minimums, amend the Development Control Regulations accordingly, and issue parking permits to authorize vehicle owners to park in designated zones near their homes or workplaces.
id_1730	7	The Surat Municipal Corporation (SMC) shall issue a residential parking permit in the following cases: the applicant's residence is situated in a section of the road where parking is regulated by time and price; the applicant's residence does not have access to adequate off‑street parking facilities; the applicant's residence is in an area hosting an event such as a stadium or any facility where there might be frequent cordoning off of vehicles., The SMC may issue a work zone parking permit to an applicant whose workplace is adjacent to or nearby the parking space in consideration. The applicant shall display the permit on the windshield while the vehicle is parked in the space. Work zone permits shall be valid for a specified duration on specific days of the week., The traffic cell within the Surat Municipal Corporation shall issue parking permits to users on an annual basis. Car owners shall furnish either a residential or workplace address against which the SMC shall issue permits. Permit holders shall display their permits on the windshield; failure to do so shall render them liable for appropriate action. A residential parking permit shall also serve as proof of parking., The Surat Municipal Corporation shall designate on‑street spots for parking Inter‑State Passenger Transport Service (IPTS) vehicles and city taxis, which shall be specifically demarcated. Charges shall be recovered from IPTS for using these spaces. IPTS shall not be allowed to park in spaces designated for other vehicles. Higher priority shall be given to IPTS parking within 300 metres of transit stations. No IPTS parking shall be provided near junctions, and any IPTS parking in an undesignated area shall be liable for appropriate parking charges., Freight vehicle parking shall be allowed only in demarcated zones as described by the SMC. To ensure efficient utilization of street capacity, freight parking shall be limited to specific hours of the day, which shall be decided by the SMC. For the first phase, the SMC shall outline streets on which movement of heavy freight vehicles is completely restricted. Subsequently, a detailed freight management plan shall be prepared, including a system for providing vehicle‑parking certificates and managing all registered freight vehicles., The Surat Municipal Corporation is upgrading its public transport through Bus Rapid Transit System (BRTS), city buses and the proposed metro. To facilitate transit users, the SMC shall plan a city‑wide Public Bicycle Sharing (PBS) system and provide free bicycle parking at all planned parking facilities within 300 metres of transit stations. In congested areas, especially around the old city, the SMC shall promote bicycle parking facilities to enable visitors to park their bicycles and use public transport., The Surat Municipal Corporation shall implement Intelligent Transportation Systems (ITS) strategies to charge users of parking facilities while also incentivising those who reduce their parking time. Smart parking facilities shall enable a citizen of Surat to (1) find a free parking spot in the city centre; (2) be advised of the probability that the spot will be available upon arrival; and (3) decide on reserving and pre‑paying for the spot. Dynamic information on parking availability shall be displayed at decision points such as malls, commercial centres and shared parking facilities. Parking meters shall display dynamic prices varying with time of day and shall accept cash, online payments and smart cards. In the long run, the SMC may consider seamless integration of a public transport travel card to pay parking charges. Parking Guidance and Information (PGI) systems shall use message signs to direct drivers to vacant parking spaces., On‑street and off‑street parking charges are as follows: On‑street parking (all areas) – 0 to 3 hours: 3‑wheelers INR 20, cars INR 25; 3 to 6 hours: 3‑wheelers INR 15, cars INR 20. Off‑street parking (all areas) – 0 to 6 hours: 3‑wheelers INR 20, cars INR 25. On‑street premium areas and off‑street premium areas have higher rates as per the schedule. For more than 24 hours, parking charges shall be computed based on the additional duration of parking. Bicycles and handicapped modified vehicles shall not be charged for parking., Parking permit charges are as follows: Residential Permit (RP) – INR 22,400 per year; Work Permit (WP) – INR 34,07 per year. Subsidy scenarios are available: 90 % subsidy and 95 % subsidy. Under the 95 % subsidy, the cost per year for a residential permit is INR 1,120 and for a work permit is INR 2,240.
id_1731	0	Government of India Ministry of Law and Justice Department of Justice (Appointments Division) Jaisalmer House, 26, Man Singh Road, New Delhi-110011. Dated: 1st November 2023. In exercise of the power conferred by Article 223 of the Constitution of India, the President is pleased to appoint Shri Justice Hamarsan Singh Thangkhiew, Judge of the Meghalaya High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from 02 November 2023 consequent upon the retirement of Shri Justice Sanjib Banerjee, Chief Justice, Meghalaya High Court on 01 November 2023. 014011A23 (Rajinder I. Cashyap) Special Secretary to the Government of India Telephone: 2338 3037., To The Manager, Government of India Press, Mint Road, New Delhi. No. K-11019/32/2023-US.I/II (iii) Dated: 01 November 2023., Copy to: Shri Justice Hamarsan Singh Thangkhiew, Judge of Meghalaya High Court through the Registrar General, Meghalaya High Court, Shillong; the Secretary to the Governor, Meghalaya, Shillong; the Secretary to the Chief Minister, Meghalaya, Shillong; the Secretary to the Chief Justice, Meghalaya High Court, Shillong; the Chief Secretary, Government of Meghalaya, Shillong; the Registrar General, Meghalaya High Court, Shillong; the Accountant General, Meghalaya, Shillong; the President's Secretariat, CA II Section, Rashtrapati Bhawan, New Delhi; the Principal Secretary to the Prime Minister, Prime Minister's Office, South Block, New Delhi; the Registrar (Confidential), Office of the Chief Justice of India, 07 Krishna Menon Marg, New Delhi; the Technical Director, MC, Department of Justice, with a request to upload on the website of the Department.
id_1732	0	Criminal Original Petition Nos. 20088, 2013-5 & 20406 of 2022. Petitioners: Kiruthika Jayaraj, L. Haripriya (in Criminal Original Petition No. 20088 of 2022); E. C. Ravikumar, R. S. Shanthi (in Criminal Original Petition No. 20135 of 2022); Sivasankaran (in Criminal Original Petition No. 20406 of 2022). Respondents: State represented by the Inspector of Police, Chinnaselam Police Station, Kallakurichi (Crime No. 235 of 2022); State represented by the Inspector of Police, CBCID – North, Villupuram (Crime No. 01 of 2022)., Prayer in Criminal Original Petitions Nos. 20088 & 20135 of 2022: The criminal original petitions are filed under Section 439 of the Criminal Procedure Code, praying to enlarge the petitioners on bail pending investigation in Crime No. 235 of 2022 on the file of the first respondent police and later transferred and registered as Crime No. 01 of 2022 on the file of the second respondent police. Prayer in Criminal Original Petition No. 20406 of 2022: The criminal original petition is filed under Section 439 of the Criminal Procedure Code, praying to enlarge the petitioner on bail in a case registered as FIR No. 01 of 2022 on the file of CBCID Villupuram Police Station., For petitioners in Criminal Original Petitions Nos. 20088 & 20135 of 2022: Mr. S. Prabakaran, Senior Counsel. For respondent: Mr. Hassan Mohammed Jinnah, State Public Prosecutor, assisted by A. Damodaran, Additional Public Prosecutor. For intervenor: Mr. Sankarasubbu. For petitioner in Criminal Original Petition No. 20406 of 2022: Mr. S. Thankasivan. For respondent: Mr. Hassan Mohammed Jinnah, State Public Prosecutor, assisted by A. Damodaran, Additional Public Prosecutor., The petitioners in all the criminal original petitions were arrested and remanded to judicial custody on 18 July 2022 for offences punishable under Section 174(1) of the Criminal Procedure Code, and later altered to offences under Section 305 of the Indian Penal Code, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2002 and Section 4(B)(ii) of the Tamil Nadu Prohibition of Harassment of Women Act, 2002, seeking bail., The deceased victim studied the 12th standard at Sakthi Higher Secondary School, Kallakurichi district, as a day scholar and was later boarded in the school hostel. On 13 July 2022, the parents received a phone call from the school informing that the victim had jumped from the third floor of the school hostel. After about thirty minutes, they received another call stating that their daughter had died and her body was kept in the Government Hospital at Kallakurichi. On reaching the hospital, they observed injuries on the deceased's neck. Doctors found that the deceased was brought dead to the hospital. The parents verified the place of occurrence at the school and found no evidence of a jump from the third floor and no blood stains on the floor, leading them to suspect the school authorities and lodge a complaint before the first respondent., The first respondent, on receipt of the complaint, registered FIR in Crime No. 235 of 2022 under Section 174 of the Criminal Procedure Code and sent the body for postmortem. The investigation was later transferred to the second respondent, who, on receipt of the case diary, registered another FIR in Crime No. 01 of 2022 under Section 174(1) of the Criminal Procedure Code. While investigation was pending, the second respondent altered the FIR to offences under Section 305 of the Indian Penal Code, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2002 and Section 4(B)(ii) of the Tamil Nadu Prohibition of Harassment of Women Act, 2002 against five accused persons., The learned Senior Counsel appearing for petitioners A1 to A4 and the counsel for petitioner A5 submitted that this is a case of suicide. The deceased, a hostel student, faced difficulties in studies, wrote a suicidal note and committed suicide by jumping from the third floor of the hostel. The first accused is the Mathematics Teacher, the second accused is the Chemistry Teacher, the third accused is the Correspondent of the school, the fourth accused is the wife of the third accused who is the Secretary of the school, and the fifth accused is the Principal., According to the suicidal note, the deceased felt difficulties in solving chemistry equations. The Chemistry Teacher (A2) put pressure on her to study well and scolded her, also complaining to other staff members. The Mathematics Teacher (A1) also put pressure on her and complained to staff. On the date of occurrence, the Chemistry Teacher, who had taken the class, inquired about her performance and compelled other students to study well, leading the deceased to feel further difficulty and decide to commit suicide. She requested the Correspondent and Secretary (A3 and A4) in the note to return the tuition fees and book fees to her parents. The petitioners argue there is no evidence that they instigated the deceased to commit suicide., The defacto complainant filed writ petitions before this Court for change of investigation and re‑postmortem of the deceased in Writ Petition No. 18455 of 2022. While the writ petition was pending, the investigation was transferred to the second respondent. This Court ordered an interim direction to conduct a re‑postmortem consisting of three doctors from different hospitals. The re‑postmortem reiterated the opinion of the first postmortem except for a few injuries omitted earlier. The complainant, dissatisfied with the second postmortem, asked for a third postmortem with other doctors. The Court sent both postmortem reports to the Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER) Forensic Experts for opinion., After perusing both postmortem reports, the JIPMER experts gave an opinion and accepted the reports submitted by the earlier two teams. Therefore, there is absolutely no evidence to attract any offence against the petitioners. The suicidal note implicates only the Mathematics Teacher and the Chemistry Teacher; there are no allegations against the Correspondent, Secretary or Principal., The learned counsel for the intervenor, appearing on behalf of the defacto complainant, submitted that this is a clear case of rape and murder of the minor victim. The deceased was a day scholar who was admitted to the school hostel. The alleged occurrence took place on 12 July 2022 at about 12.00 a.m. inside the hostel. The complainant received a phone call that the daughter had jumped from the third floor, and later another call stating she died by suicide. On examination, injuries on the neck and other findings led the complainant to suspect foul play. He contended that the first postmortem left out various injuries found in the second postmortem, and that there is a bite mark and fingerprints on the right breast, blood stain in the inner wear, and contusions inconsistent with a suicidal fall. He also suspected involvement of the sons of A3 and A4 due to blood stain on the staircase, suggesting possible rape and murder. He argued that bail should not be granted., The learned Public Prosecutor for the State submitted that the original FIR was registered for an offence under Section 174 of the Criminal Procedure Code and has now been altered to offences under Section 305 of the Indian Penal Code, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2002 and Section 4(B)(ii) of the Tamil Nadu Prohibition of Harassment of Women Act, 2002 against the petitioners. He further submitted that the correspondent has been involved in a murder case and a suicide case of another student in 2004 and 2007. According to the postmortem reports and JIPMER expert opinion, there is no evidence to attract offences of rape or murder. All the accused abetted the deceased to commit suicide, as shown by the suicidal note, which attracts offence under Section 305 of the Indian Penal Code. The FIR was altered accordingly, and the petitioners were arrested and remanded to judicial custody. Injuries on the body are consistent with a fall from the third floor of the hostel, approximately 40 feet, where she was hit by a tree and sustained grievous injuries leading to death. Investigation is still pending, and the State opposes bail, fearing tampering of evidence or witnesses., There are five accused, namely A1 to A5. A1 is the Mathematics Teacher, A2 is the Chemistry Teacher, A3 is the Correspondent of Sakthi Higher Secondary School, Kaniyamoor Village, Kallakurichi, A4 is the wife of A3 who is the Secretary of the school, and A5 is the Principal. The deceased studied the 12th standard in the school and was a hostel resident. On 12 July 2022, she committed suicide by jumping from the third floor of the hostel, hitting a tree and falling down. She was taken to the Government Hospital at Kallakurichi, where she was declared dead on arrival. The Accident Register of the Government Medical College and Hospital, dated 13 July 2022, records that the body was brought dead by school staff. The first respondent registered FIR under Section 174 of the Criminal Procedure Code in Crime No. 235 of 2022. The first autopsy was conducted on 14 July 2022., On dissection, fractures of ribs along with a paravertebral line and extravasation of blood into surrounding paravertebral muscles were found, with left side ribs intact. Additional injuries included dark red abrasions on the root of the nose; abrasions on the right shoulder, right arm, lower right arm, right elbow, upper and middle right forearm, back of right palm, right breast, right chest, right abdomen, lower right leg, right ankle, left chest, and a scalp laceration on the left parietal region. The autopsy report was submitted to the Court., Without satisfying the autopsy conducted by Government Medical College & Hospital, Kallakurichi, the defacto complainant filed Writ Petition No. 18455 of 2022 before this Court seeking transfer of investigation in Crime No. 235 of 2022 from the first respondent and re‑postmortem of the deceased. While the writ petition was pending, the investigation was transferred to the second respondent, which registered another FIR in Crime No. 01 of 2022 under Section 174 of the Criminal Procedure Code., By an interim order dated 18 July 2022, this Court ordered a re‑postmortem consisting of the following doctors: Dr. Geethanjali, Professor, Villupuram Medical College; Dr. Julianan Jayanthi, Professor, Trichy Medical College; Dr. Gokulakrishnan, Professor, Salem Medical College. The second autopsy was conducted on 19 July 2022., The second autopsy found that the other injuries are all ante‑mortem and there is no evidence of rape or murder. The Court directed expert opinion on both autopsy reports. The expert team comprised Dr. Kumar Kumar Shaha, Dr. Siddhartha Das, and Dr. Ambika Prasad Patra of JIPMER Hospital, Pondicherry. After thorough analysis, the experts concluded that the findings in both autopsy reports, videographs and ancillary documents corroborate the cause of death as mentioned in the postmortem reports, and the musculoskeletal findings are consistent with radiology findings., In view of the above, it is confirmed that there is no evidence to attract the offence of rape or murder. Although the intervenor counsel raised contradictions between the autopsy reports, they do not attract the offence. The suicidal note clearly shows the deceased faced difficulties in chemistry equations, and the teachers advised her to study well. The note was written in Tamil using English words and reads: \Naa Nalladha padipen. Chemistry la neraya equation ah iruku enaku equation padikavae varala. Adhanala chemistry miss romba pressure panraga Oru naal avanga maths miss kitta naa padikavae maatrannu sollita nga. Avangalu enna pressure panranga hostle la padikama enna panra nu romba thititanga. Enaku romba kastama iruku. Naa padika maatran nu ivangu rendu per la yaro oruthanga ella staff kittayum poyi olungavae padika maatren nu sollitan ga. Innaki kaalaila morning class ku vandhs staff enna padikavae maatriy amae vilayatu thanamavae irukiyamae kekuranga Maths missum chemistr y missum enna romba pressure panranga. Ennala mudiyala. Maths miss enna mattum illa inga iruka ellarayumae torcher panranga. Shanthi Madam ungaluku naa oru request vakira enaku indha varushathuku katna school fees mattum enga amma kittae thiru pi kuduthudunga. Book fees hostel feesum kooda kuduthudunga yenna naa irundhadhae konja naal dhan Pls mam.\ Therefore, it is a clear case of suicide., The mark found on the right breast is explained as a gravel injury sustained when she fell from the third floor and touched the floor. The blood stain in the inner garments is due to extravasation of blood into surrounding paravertebral muscles, leading to ooze onto the garments. No injuries were found on private parts. The red colour mark near the staircase is not blood but red paint, as analyzed by experts., The first FIR was registered under Section 174 of the Criminal Procedure Code on 12 July 2022. After transfer of investigation to the second respondent, the FIR was altered to offences under Section 305 of the Indian Penal Code, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2002 and Section 4(B)(ii) of the Tamil Nadu Prohibition of Harassment of Women Act, 2002 against five accused persons, and all were arrested on 18 July 2022 as per the suicidal note., It is unfortunate that teachers are facing threats from students and parents, and that the petitioners have been arrested for advising students to study well. The suicidal note shows no evidence that the petitioners instigated the deceased to commit suicide. Directing students to study well is part of teaching and does not amount to abetment of suicide. Therefore, the offence under Section 305 of the Indian Penal Code is not attracted against the petitioners. The Court regrets the death of the student., Considering the facts, circumstances and period of incarceration, this Court is inclined to grant bail to the petitioners. Accordingly, each of the petitioners in Criminal Original Petitions Nos. 20088 and 20135 of 2022 is ordered to be released on bail upon executing a separate bond of Rs.10,000 (Rupees ten thousand only) with two sureties of equal amount, to the satisfaction of the learned Chief Judicial Magistrate, Villupuram. The petitioner in Criminal Original Petition No. 20406 of 2022 is ordered to be released on bail upon executing a bond of Rs.10,000 with two sureties, to the satisfaction of the learned District and Sessions Judge (Mahalir Neethi Mandram, Villupuram), subject to the following conditions: (a) the sureties shall affix their photographs and left thumb impression in the surety bond and the Magistrate may obtain a copy of their Aadhaar card or bank passbook to ensure identity; (b) the petitioners in Criminal Original Petitions Nos. 20135 and 20406 of 2022 shall stay at Madurai and report before the Inspector of Police, Thallakulam Police Station, Madurai daily at 10:30 a.m. and 5:30 p.m. for four weeks and thereafter as required for interrogation; the petitioners in Criminal Original Petition No. 20088 of 2022 shall stay at Salem and report before the Inspector of Police, Sevvapet Police Station, Salem daily at 10:30 a.m. and 5:30 p.m. for four weeks and thereafter as required; (c) the petitioners shall not abscond during investigation or trial; (d) the petitioners shall not tamper with evidence or witnesses; (e) on breach of any condition, the learned Magistrate/Trial Court may take appropriate action as per law, in accordance with the Supreme Court decision in P. K. Shaji vs. State of Kerala (2005) AIR SCW 5560; (f) if the accused thereafter absconds, a fresh FIR may be registered under Section 229A of the Indian Penal Code.
id_1733	0	Bombay Lawyers Association, a body registered under the Societies Registration Act, 1860, having its office at 4th Floor, Onlooker Building, Sir P.M. Road, Fort, Mumbai 400001, through its President Advocate Ahmad M. Abdi, email abdiandco@gmail.com, telephone 9820073915, is the petitioner. The respondents are: Jagdeep Dhankar, Vice President of India and Ex‑Officio Chairman of the Council of States, Office of the Vice President of India, Vice President Secretariat, 6, Maulana Azad Road, New Delhi 110011; Kiran Rijiju, Law Minister, Government of India, 4th Floor, A‑Wing, Shastri Bhawan, New Delhi 110001; the Secretary General, Rajya Sabha, Room No. 29, Parliament House, New Delhi 110001; and the Union of India, through the Cabinet Secretary, Cabinet Secretariat, Rashtrapati Bhawan, New Delhi 110004., The present Public Interest Litigation seeks the following reliefs: (a) that this Honourable Court declare that the conduct of Respondent No. 1 and Respondent No. 2 has disqualified them from holding any constitutional posts of Vice President of India and Minister of the Union Cabinet respectively, by expressing lack of faith in the Constitution of India and the law through their behaviour and public utterances; (b) that this Honourable Court restrain Respondent No. 1 from discharging his duties as Vice President of India; and (c) that this Honourable Court restrain Respondent No. 2 from discharging his duties as a Cabinet Minister of the Union of India., The petitioner claims to be a body registered under the Societies Registration Act, 1860, established by a group of advocates practicing at Bombay High Court with the primary purpose of undertaking activities to uphold the rule of law, promote high values in the legal profession, and protect the independence of the judiciary., The learned counsel for the petitioner submits that Respondents No. 1 and No. 2 have disqualified themselves from holding constitutional posts by showing lack of faith in the Constitution of India through their conduct and public utterances, by attacking its institutions including the Honourable Supreme Court of India, and by showing scant regard for the law laid down by the Supreme Court. Their conduct has shaken public faith in the Supreme Court and the Constitution. Although they have taken an oath to bear true faith and allegiance to the Constitution, their actions constitute a frontal attack on the judiciary, particularly the Supreme Court, in highly derogatory language, without resorting to the constitutional mechanisms available to change the status quo. They are also attacking the collegium system and the basic structure on public platforms, thereby lowering the majesty of the Supreme Court in the eyes of the public., The learned counsel further submits that Article 51A of the Constitution of India enjoins every citizen to abide by the Constitution and respect its ideals, institutions, the National Flag and the National Anthem. Respondents No. 1 and No. 2 have failed to fulfil their fundamental duties and have not shown respect to the constitutional institution of the Supreme Court of India. They are also guilty of contempt of Court by lowering the authority of the Supreme Court. The authorities responsible for taking action against them have failed in their duty; therefore, this Court, under Article 226 of the Constitution of India, may exercise its powers. The counsel relies on the judgment of the Calcutta High Court in Babul Supriyo v. State of West Bengal & Anr. (dated 14 October 2020), which held that a representative of the people must be courteous in behaviour, dignified in manners and cautious in words. The counsel also relies on the judgment of the Supreme Court in A.I.I.M.S. Students Union v. A.I.I.M.S. & Ors. (Appeal (Civil) No. 7366 of 1996), which states that fundamental duties, though not enforceable by a writ, provide valuable guidance and aid to the interpretation of constitutional and legal issues., The learned Additional Solicitor General submits that the present Public Interest Litigation is filed for publicity purposes, is false and frivolous. Respondents No. 1 and No. 2 have complete faith in the Constitution. The petitioner has annexed a statement of Respondent No. 2 indicating that the Central Government, under the Prime Minister, has never undermined the authority of the judiciary and that its independence will always remain untouched and promoted. Respondent No. 1 has also stated that he has the highest respect for the judiciary and is committed to the Constitution. The Vice President cannot be removed by orders under Article 226 of the Constitution. The Additional Solicitor General relies on the judgment of the Supreme Court in Dattaraj Nathuji Thaware v. State of Maharashtra & Ors., which holds that Public Interest Litigations must be admitted with great care and cannot be used for redressal of publicity‑oriented or political disputes., We have considered the submissions., Juridically, the expression Public Interest Litigation means a legal action initiated in a Court of Law for the enforcement of public interest. The PIL is a power given to the public by the courts through judicial activism. It is a litigation filed in a Court of law for the protection of public interest and can be used for redressal of a genuine public wrong or public injury, but it cannot be publicity‑oriented. The parameters of PIL have been indicated by the Supreme Court of India in a series of judgments., In the present matter, the petitioner claims to be established by a group of advocates practicing at Bombay High Court with the primary object of undertaking activities to uphold the rule of law, promote high values in the legal profession and protect the independence of the judiciary. The petitioner seeks disqualification of Respondents No. 1 and No. 2 from holding constitutional posts on the ground that their utterances have shaken public faith in the Supreme Court of India and the Constitution., The credibility of the Supreme Court of India is extremely high and cannot be eroded or impinged by the statements of individuals. The Constitution of India is supreme and sacrosanct. Every citizen of India is bound by the Constitution and is expected to abide by its values. Constitutional institutions are to be respected by all, including constitutional authorities and persons holding constitutional posts., The statements made by Respondents No. 1 and No. 2 are annexed with the petition. The Additional Solicitor General has referred to some of those statements, wherein it is said that the Government has never undermined the authority of the judiciary and its independence will always remain untouched and promoted, and that they respect the ideals of the Constitution. Respondent No. 1 has also stated that he has the highest respect for the judiciary and is committed to the Constitution of India. Constitutional authorities cannot be removed in the manner suggested by the petitioner. Fair criticism of judgments is permissible. It is, without doubt, the fundamental duty of every citizen to abide by the Constitution, and the majesty of law must be respected., Considering the totality of the factual matrix, we do not find it a fit case to invoke our writ jurisdiction under Article 226 of the Constitution of India in entertaining the Public Interest Litigation.
id_1734	0	Reserved on 09.12.2022 Date of Decision: 19.12.2022 Sandeep Tomar No. SS433024A Appellant versus State of Punjab Respondent. Present: Mr. Suvir Sidhu, Advocate, Mr. G. S. Badal, Advocate, and Mr. G. S. Dhillon, Advocate, for the appellant; Mr. J. S. Mehndiratta, Additional Advocate General, Punjab; Mr. Sumeet Goel, Senior Advocate with Mr. Viraj Gandhi, Advocate, and Mr. Adarsh Dubey, Advocate, for the complainant., This appeal has been filed against the order dated 14 August 2015 of the learned Additional Sessions Judge, Fazilka, whereby the Stridhan, i.e., gold ornaments and other articles given in the marriage of the deceased Shweta Singh with the accused-appellant Sandeep Tomar, were ordered to be released on behalf of Ram Naresh Singh, the complainant and father of the deceased., The brief relevant facts are that on 10 July 2013 the Investigating Officer, together with other police officials, was present at Civil Hospital, Abohar, when Ram Naresh Singh, father of the deceased Shweta Singh, gave his statement to the Investigating Officer. He stated that he had solemnised the marriage of his daughter Shweta Singh with Sandeep Tomar on 12 February 2013. He had given a draft of Rs 10 lakh at the time of marriage to Sandeep Tomar and a draft of Rs 10 lakh at the time of the tilak ceremony, gold ornaments valued at Rs 5 lakh to his parents and, besides that, he had given household articles consisting of a television, refrigerator, air‑conditioner, bed and furniture and had spent Rs 5 lakh on the meals at the time of marriage., He further stated that after a few days of marriage, the parents‑in‑law of his daughter, i.e., mother‑in‑law Padma Tomar, father‑in‑law Mangal Singh and husband Sandeep Tomar, started taunting his daughter for bringing less dowry and for not bringing any vehicle in dowry and demanded that she bring Rs 10 lakh in cash and a Duster car from her parents, otherwise they would eliminate her. When these demands were not fulfilled, they started asking his daughter to transfer the plot in their name which was originally in the name of her parents. His daughter used to tell about it to his wife Rani on the phone, but had firmly asked her not to disclose anything to the complainant (her father)., On 8 July 2013 at about 4.45 p.m., he talked to his daughter on the phone, who told him that Sandeep Tomar had been beating her and had been asking her frequently why she had not brought Rs 10,00,000 and the vehicle and why the plot had not been transferred in his name. Afterwards at about 9.30 p.m. on the same day, his wife also talked to his daughter on the phone and his daughter apprised his wife of the same facts and his wife then told him about the same. He was of the firm belief that her husband Sandeep Tomar, father‑in‑law and mother‑in‑law were responsible for the death of his daughter Shweta Singh and action should be taken against them. From the statement of the complainant, prima facie offence under Section 304‑B of the Indian Penal Code was found to have been committed, which resulted in the registration of the present FIR No. 126 dated 10 July 2013, under Sections 304‑B/34 of the Indian Penal Code, Police Station City‑1, Abohar, against the accused., After trial, the learned Additional Sessions Judge, Fazilka, vide judgment dated 21 July 2014 convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to rigorous imprisonment for life along with a fine of Rs 10,000., Against the judgment dated 21 July 2014, the appellant filed Appeal No. CRA‑D‑1339‑DB‑2014 before this High Court of Punjab and Haryana and the appeal was admitted by this High Court of Punjab and Haryana vide impugned order dated 27 August 2014., Thereafter, on 20 October 2014, the complainant Ram Naresh Singh filed an application for releasing the dowry articles given by him in the marriage of his daughter Shweta Singh, which was allowed by the learned Additional Sessions Judge, Fazilka, vide impugned order dated 14 August 2015., We have heard learned counsel for the appellant‑accused and learned State counsel and have also gone through the record minutely., It has been contended by learned counsel for the appellant that the impugned order dated 14 August 2015 is patently illegal, erroneous in law, and contrary to the facts and evidence on record. The trial Court erred in passing the impugned order because the term Stridhan literally means a woman's property and is constituted of property which she receives by way of gifts from her relatives, which includes mostly movable property such as ornaments, jewellery and dresses. He has argued that the trial Court has not appreciated that as per Section 15(1) of the Hindu Succession Act, 1956, after the death of a wife, her belongings shall devolve upon her children and husband. He has also contended that he is the owner of the ornaments/articles which were recovered by the police from his house and that the same cannot be released in favour of the complainant and that the impugned order dated 14 August 2015 is liable to be set aside., On the other hand, it has been contended by learned counsel for the State that these ornaments/articles were given by the complainant at the time of marriage of his daughter Shweta Singh with the appellant. Relying upon the judgment in Balbir Singh v. State of Haryana, 2010 (2) RCR (Criminal) 371, and State by Belakavadi Police v. Mallesha, 2002 (3) RCR (Criminal) 157, he has contended that the complainant, being the father of the deceased Shweta Singh, was entitled to receive the same and that the impugned order does not call for any interference., A perusal of the record reveals that the complainant Ram Naresh Singh, father of the deceased Shweta Singh, in his statement recorded by the Investigating Officer and while appearing as PW‑2, has categorically stated that he had given a draft of Rs 10 lakh to Mangal Singh, father of the appellant Sandeep Tomar, Rs 10 lakh were given in cash to Sandeep Tomar at the time of the tilak ceremony and gold ornaments worth Rs 5 lakh were also given at the time of the tilak ceremony., PW‑3 Rani Singh, mother of the deceased Shweta Singh, has also deposed to the same effect and has categorically stated that gold ornaments valuing Rs 5 lakh were given at the time of the tilak ceremony, which were approximately 200 grams in weight, and the dowry articles consisting of television, refrigerator, air‑conditioner, bed, almirah, dressing table and sofa etc. were also given. She has also stated that at the tilak ceremony they had given Rs 10 lakh in cash and Rs 10 lakh were handed over to Mangal Singh in the form of a draft as demanded by Mangal Singh. Exhibit PA is the recovery memo of ornaments recovered from the house of appellant Sandeep Tomar. Exhibit PC is the memo regarding identification of these gold and silver ornaments by complainant Ram Naresh Singh and his wife Rani Singh and both of them identified these ornaments to be those given by them in dowry to their daughter Shweta Singh at the time of her marriage with Sandeep Tomar. Exhibit PF is the recovery memo of dowry articles, which were received through consignment (bill of lading), which had been sent by Mangal Singh, the father of the appellant, from Kanpur. PW‑6 SI Raj Kumar has also stated that he had collected bills of dowry articles in the name of Ram Naresh Singh which are exhibited as PAE to PAH., Though the accused/appellant has claimed that he is the owner of these dowry articles, no material worth the name has been produced on record by him to prove his ownership. A perusal of the grounds of appeal reveals that the specific ground taken is that the trial Court had not appreciated that as per Section 15(1) of the Hindu Succession Act, 1956, after the death of a wife, her belongings shall devolve upon her children and husband., Thus it is quite contrary to the arguments now raised by the learned counsel for the appellant, wherein now he is claiming the appellant to be owner of these articles. So once the appellant has taken the plea that provisions of Section 15(1) of the Hindu Succession Act were to be applied, it amounts to an implied admission on his part that he was not owner of these articles. In his statement recorded under Section 313 of the Code of Criminal Procedure, nothing has been stated by him about his ownership of these articles., The dispute in this case is with regard to custody of dowry articles which were meant for the use of the deceased Shweta Singh. The position with regard to custody of dowry articles is quite different from the position of other property in the hands of the deceased. In this context, it is appropriate to reproduce Section 6(3) of the Dowry Prohibition Act, 1961, which reads as follows: 'Section 6(3): Where the woman entitled to any property under sub‑section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being: Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall (a) if she has no children, be transferred to her parents; or (b) if she has children, be transferred to such children and pending such transfer be held in trust for such children.', In the case at hand, the deceased Shweta Singh died within seven years of her marriage. There was no issue of illegitimate offspring. The record reveals that she died an unnatural death other than in normal circumstances. Thus, the case of the appellant squarely falls within Clause (b) of Section 6 of the Dowry Prohibition Act, 1961, so as to maintain the custody of dowry articles with the complainant. The provisions of the Dowry Prohibition Act, 1961, cannot be overlooked by invoking the provisions of Hindu law relating to succession., In the present case, the record indicates that dowry articles changed hands at the time of marriage. The trial Court has rightly placed reliance upon Balbir Singh's case, wherein it was held that the husband was not entitled to retain dowry even if he was acquitted and dowry articles will remain with the father of the deceased. Reliance can further be placed upon Mallesha's case, wherein it was held that under the Dowry Prohibition Act, 1961, Section 6, dowry articles which changed hands at the time of marriage are to be restored to the family of the deceased, preventing unjust enrichment of the accused and being in consonance with Section 6 of the Dowry Prohibition Act., In the cases above, the dowry articles were ordered to be given to the father of the deceased wife, even though the accused husband had been acquitted by giving benefit of doubt after the trial. But in the instant case the accused husband has been convicted by the trial Court under Section 302 of the Indian Penal Code for committing murder of his wife Shweta Singh. So, keeping in view the ratio of law laid down in the cases above also, the impugned order is a legal and valid order., As no illegality or irregularity has been found in the impugned order passed by the learned trial Court, it does not call for any interference and is upheld., For the aforesaid reasons, the appeal being devoid of any merits, stands dismissed.
id_1735	0	Versus Appearance: Suo Motu for the Petitioner(s) Number 1 Mister HS Munshaw (495) for the Respondent(s) Number 10, 11, 12, 13 Mister Pranav G. Desai (290) for the Respondent(s) Number 7, 9. Notice served for the Respondent(s) Number 14 and Date: 06/02/2024., By order dated 15.12.2022, taking note of the directions contained in the order of the Supreme Court of India dated 16.2.2010 in Special Leave to Appeal (Civil) No. 12037 of 2006 connected with other matters and Special Leave to Appeal (Civil) No. 8519 of 2006, the direction was issued to the State to file their response through the Secretary, Home Department indicating the steps taken by them in furtherance to the communications dated 2.1.2020 and 7.1.2020, Annexure‑R1 and Annexure‑R2 annexed to the affidavit dated 16.1.2020, so as to enable the Court to pass a suitable direction. It is provided that the affidavit shall disclose not only the number of religious structures which have been constructed over the public place in the eight Corporations limits, but also in the entire State, and the steps that have been taken for removal of such unauthorized religious places constructed over the open public spaces. We may note that in compliance of the said order, an affidavit dated 9.1.2023 has been filed by the Secretary, Home Department, bringing a list of constructions of unauthorized religious structures identified in the State of Gujarat as on 31.12.2010 and further the remaining unauthorized religious places as on 30.9.2022. The list appended as Annexure‑A to the affidavit contains the action contemplated against the unauthorized religious structures/ encroachments between 31.12.2010 to 30.9.2022. From the said list, we may note that out of total unauthorized constructions mentioned therein as identified until 30.9.2022, the action had been taken with respect to only 23.33 percent, that too there is no clarity as to whether the action was contemplated or taken against them as the column‑5 of the table has been constructed in the manner that it included both kinds of the structures against which the action was contemplated or taken. Further, we may note a strong exception to the manner in which the affidavit has been filed by the Secretary, Home Department without giving any detail in the affidavit itself with regard to the nature of action taken in the matter of removal of unauthorized constructions in compliance of the directions issued by the Supreme Court of India. The statement in the said affidavit that the petition be disposed of by this Court as the action plan which has been conceived by the State Government will take care of any further encroachment, is wholly uncalled for. The policy decision issued by the Government Resolution dated 16.7.2022 though has been appended with the affidavit but the compliance of the said resolution has not been brought on record., For the aforesaid, we direct the learned Assistant Government Pleader to file a further affidavit of the Secretary, Home Department in strict compliance of the directions contained in the judgment and order dated 15.12.2022 which has been issued in view of the directions contained in the order of the Supreme Court of India dated 16.2.2010 passed in the aforesaid matters where respective High Courts have been directed to ensure implementation of the directions issued by the Supreme Court of India., As prayed by the learned Assistant Government Pleader, the matter is posted on 27.2.2024.
id_1736	0	Miss Gouri Abhay Bhide, age 38 years, C/o Shrinath, Apartment 306, Veer Savarkar Marg, Dadar, Mumbai 400028. Abhay Bhide, age 73 years, C/o Shrinath, Apartment 306, Veer Savarkar Marg, Dadar, Mumbai 400028. Petitioners versus Union of India through Secretary, Ministry of Home Affairs and Secretary, Ministry of Finance; Central Bureau of Investigation through its Director; Enforcement Directorate through its Director; State of Maharashtra through the Police Commissioner, Mumbai; Shri Uddhav Thackeray, age approximately 60; Shri Aditya Thackeray, age approximately 28; Mrs Rashmi U. Thackeray, age approximately 55; Tejas Uddhav Thackeray, age approximately 25; all residing at Matoshri, 25 Kalanagar, Bandra (East), Mumbai 400051., The petition is filed by Ms Gouri Abhay Bhide (Petitioner No.1 in person) and Mr Abhay Bhide (Petitioner No.2 in person). Ms A. S. Pai, Public Prosecutor, assisted by Ms M. H. Mhatre, appears for the Respondent State. Mr Aspi Chinoy, Senior Advocate, assisted by Mr Joel Carlos, appears for Respondents No.5 and 6. Mr Ashok Mundargi, Senior Advocate, assisted by Mr Joel Carlos, appears for Respondents No.7 and 8. The present petition seeks a writ of mandamus, inter alia, to the Central Bureau of Investigation and the Enforcement Directorate for taking cognizance of the complaint filed by the petitioners with the Mumbai Police and for directing investigation to be undertaken by those agencies., The complaint was sent by the petitioners through email to the Commissioner of Police, Mumbai, and to the Deputy Commissioner of Police, Economic Offences Wing, on 11 July 2022, against Respondents No.5, 6 and 7. Respondents No.5 and 6 are alleged to be office bearers of the political party Shiv Sena. Respondent No.5 is also alleged to have been the Chief Minister of Maharashtra for a period of 30/31 months, and Respondent No.6 is alleged to have been a minister in his cabinet. It is alleged that although the complaint was forwarded on the same date to the Economic Offences Wing, no investigation was undertaken., The petitioners allege that the respondents have committed serious economic offences and offences of corruption, and that the Police Commissioner of Mumbai avoided taking legal action on account of heavy political pressure. The petition further alleges that Respondents No.5, 6 and 7 possess assets disproportionate to their known sources of income, described as benami transactions. It is alleged that the respondents run periodicals named Marmik and Saamna, which are not audited by the Audit Bureau of Circulation, and that during the COVID-19 period, while the print media sector faced heavy losses, the company Prabodhan Prakashan Private Limited, practically owned by the Thackeray family, showed a turnover of Rs. 42 crores and a profit of Rs. 11.5 crores., In the backdrop of the aforementioned facts, the petition prays that cognizance be taken on the complaint and that the matter be monitored by the Supreme Court of India. Reliance was placed upon the judgment of the Supreme Court of India in Param Bir Singh versus State of Maharashtra to support the proposition that the Court had exercised writ jurisdiction and referred the matter to the Central Bureau of Investigation., Mr Aspi Chinoy, learned Senior Counsel for the private respondents, urged that if the petitioners have any grievance that no action is being taken on the complaint by the concerned agencies, the appropriate remedy is to approach the Magistrate under the provisions of the Code of Criminal Procedure. He relied on the judgment in Sakiri Vasu versus State of Uttar Pradesh and others (2008) 2 SCC 409. He further contended that while courts have exercised extraordinary writ jurisdiction relating to investigations in criminal cases, courts do not order initiation of an investigation. He referred to Kunga Nima Lepcha and others versus State of Sikkim and others (2021) 6 SCC 771, which was subsequently followed in the case of State of Jharkhand versus Shiv Shankar Sharma and others (1999) 6 SCC 667., We have heard Petitioner No.1 appearing in person as well as learned counsel for the respondents. After hearing the matter and reserving it for judgment, Ms A. S. Pai, learned Public Prosecutor, informed the Supreme Court of India that a preliminary inquiry had been initiated by the Economic Offences Wing on the forwarded complaint. This statement was made in the presence of the petitioners, who did not express any desire to withdraw the petition; therefore, we must proceed to decide the issues raised., In Sakiri Vasu versus State of Uttar Pradesh and others, it was held that if a person has a grievance that his First Information Report has not been registered, his first remedy is to approach the Superintendent of Police under Section 154(3) of the Code of Criminal Procedure or the officer referred to in Section 36. If that remedy fails, the person may approach a Magistrate under Section 156(3) before resorting to a writ petition under Article 226 or Section 482. The Court emphasized that alternative remedies exist and writ petitions should not be entertained when they are available., The relief sought by the petitioner is a mandamus to the Central Bureau of Investigation for investigating the case based upon the petitioners’ complaint. Such a direction cannot be given by a Magistrate in view of the judgment of the Supreme Court of India in Central Bureau of Investigation versus State of Rajasthan. However, an aggrieved person may claim that the offences he alleges be investigated properly, but he has no right to direct that a particular agency, such as the CBI, conduct the investigation (Rajesh Gandhi versus Central Bureau of Investigation). The choice of investigating agency does not determine the maintainability of the petition. The writ remedy is discretionary and, except in cases involving enforcement of fundamental rights, violation of natural justice, or challenge to the vires of an Act, parties may be relegated to alternate remedies. This principle has been described as a matter of self‑imposed limitation, policy and convenience rather than a rule of law, with reference to M/S Radha Krishan Industries versus State of Himachal Pradesh and others., Assuming that a writ court were to exercise jurisdiction under Article 226 of the Constitution of India, numerous judgments emphasize the care and caution required when directing a central agency such as the CBI to investigate. In Common Cause, A Registered Society versus Union of India (2022) 2022 SCC OnLine SC 1541, the Supreme Court held that a direction to the CBI to investigate any offence is wholly erroneous and contrary to the concept of life and liberty guaranteed under Article 21, unless a prima facie case is established. The Court observed that a direction for investigation can be given only if an offence is prima facie found to have been committed or a person’s involvement is prima facie established., The ratio of that decision was followed in Secretary, Minor Irrigation, Rural Engineering Services, Uttar Pradesh and Others versus Sahngoo Ram Arya and Another (2021) 6 SCC 771. In that case, the Supreme Court held that even when a High Court has power under Article 226 to direct an inquiry by the CBI, such power can be exercised only where sufficient material exists to reach a prima facie conclusion that an inquiry is needed. The material must be sufficient on record; mere allegations or ‘ifs’ and ‘buts’ are inadequate., In State of West Bengal and Others versus Committee for Protection of Democratic Rights, West Bengal and Others (2022) SCC OnLine SC 1541, the Supreme Court held that while powers under Articles 32 and 226 are wide, they must be exercised with great caution. A direction to the CBI should not be passed as a matter of routine or merely because allegations are levelled; it must be exercised sparingly, in exceptional situations where credibility of investigation, national or international ramifications, or complete justice require it., In Kalyaneshwari versus Union of India and Others, the Supreme Court underlined that public interest litigations must be entertained with care and should not become a source of abuse of process. The Court warned against private malice, vested interest, or publicity motives behind such petitions., In Kunga Nima Lepcha and Others versus State of Sikkim and Others, the Supreme Court dealt with a public interest litigation under Article 32 alleging that the Chief Minister of Sikkim misused his public office to amass assets disproportionate to his known sources of income. The petition sought a writ of mandamus directing the Central Bureau of Investigation to investigate and register an FIR under the Prevention of Corruption Act, 1988. The Court held that the onus of launching an investigation lies with the investigating agencies and it is not proper for the Court to direct initiation of such investigation. The Court observed that writ jurisdiction may be used to monitor ongoing investigations or to transfer them, but not to order initiation of an investigation., In State of Jharkhand versus Shiv Shankar Sharma and Others, the Supreme Court considered the legality of a High Court order directing the CBI to investigate allegations of money laundering and investments in shell companies. The Court held that the petition was an abuse of process, lacking prima facie evidence, and that the petitioner had not approached the Court with clean hands. The Court reiterated that a writ court is not an appropriate forum for seeking initiation of an investigation., The petitioners relied upon the case of Param Bir Singh versus State of Maharashtra and Others, wherein the Supreme Court accepted the petitioners’ plea and referred the matter to the CBI based on allegations against the then Home Minister, Shri Anil Deshmukh. In that judgment, the Court did not direct the CBI to register an FIR but only directed a preliminary inquiry into the complaint., The Supreme Court of India, while considering the ratio of the judgment in P. Sirajudding versus State of Madras, held that before a public servant is publicly charged with acts of dishonesty amounting to serious misconduct, a suitable preliminary inquiry must be conducted by a responsible officer, as baseless allegations can cause incalculable harm to the officer and the department., The complaint, addressed to the Chief Minister of Maharashtra, alleged that the then Home Minister was calling police officers to his official residence and instructing them to carry out official assignments, financial transactions and collection schemes, and that officers were given targets to collect money. The petitioner lodged a complaint with the Malabar Hill Police Station and the Director, Anti‑Corruption Bureau of the CBI, on which no action was taken, leading the petitioner to invoke writ jurisdiction before the Bombay High Court, seeking direction to the CBI and Enforcement Directorate to conduct an unbiased investigation., The Supreme Court, while granting liberty to Shri Param Bir Singh to withdraw his writ petition and approach the Bombay High Court, observed that the matter is serious and affects administration at large, and that material in the public domain has emerged due to personal differences., In the present case, however, no circumstances similar to those in Param Bir Singh versus State of Maharashtra exist. The petitioners have made vague and general allegations against Respondents No.5, 6, 7 and 8. They allege that unaccounted money gathered from the Brihanmumbai Municipal Corporation and other sources may have been dishonestly routed into the accounts of Prabodhan Prakashan Private Limited, with fictitious figures of profit shown. They claim that the petitioners gain nothing and that the assets of the respondents are far disproportionate to their disclosed sources of income., The petitioners state that since childhood they visited their family printing press, Shree Rajmudra, in Prabhadevi Industrial Estate, where they observed interactions between Late Shrikant Thackeray and Late Waman Bhide. They learned that Shrikant Thackeray was the younger brother of Late Balasaheb Thackeray and looked after printing and circulation of the weekly Marmik. The petitioners investigated the economics, circulation and advertisement relations of Marmik and Saamna and found that neither newspaper was subject to Audit Bureau of Circulation audit, and real print orders were unknown. They also noted that Prabodhan Prakashan Private Limited was appointed as the sole operating agency., The petitioners annexed Exhibit A, the email sent on 11 July 2022 to the Deputy Commissioner, West Zone, Mumbai Police, alleging that land allotted by the Maharashtra Government to Prabodhan Prakashan had been transferred to Prabodhan Prakashan Private Limited in violation of the terms of allotment. On the issue of disproportionate assets, the complaint states that the Maharashtra Economic Offences Wing is competent to enquire and take appropriate action, and that a thorough forensic audit of the accounts of Prabodhan Prakashan, Marmik, all family members of the Thackeray family and their pseudo‑holding companies would reveal the root of corruption., The petitioners further allege that the circulation of Marmik is only a few thousand copies and that Saamna’s circulation is only 35,000 to 50,000 copies. They state that their family printing press previously printed supplements for Marmik and Saamna, and that the newspapers never obtain circulation certificates from the Audit Bureau of Circulation, resulting in bogus figures of sales and advertisement revenue that need investigation., Exhibit B levels general allegations questioning the source of income of Respondents No.5 to 8. Exhibit C attempts to explain the modus operandi for fund raising from the Brihanmumbai Municipal Corporation, although no specific role is attributed to any private respondent., The petition and the complaint are bereft of any evidence that would enable the Supreme Court of India to conclude that a prima facie case exists for investigation by the Central Bureau of Investigation or any other central agency.
id_1736	1	On a reading of the complaint and the petition, it appears that the Petitioners are only speculating on the sudden rise in the prosperity index of the private Respondents from their humble beginning and, therefore, entertain a suspicion that the lifestyle maintained by the said private Respondents could only be attributed to the corrupt practices in the Brihanmumbai Municipal Corporation. In any case there is absolutely no evidence or live link between the alleged malpractices in the Brihanmumbai Municipal Corporation and private Respondents herein. The Petitioners thus are attempting to seek a roving probe, monitored by the High Court, into the suspicions so entertained by the Petitioners based on nothing but bald allegations. This is certainly not a case warranting the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India., For the reasons mentioned hereinabove, we hold that the present petition is nothing but an abuse of the process of law which is, accordingly, dismissed, with costs of Rupees 25,000 to be deposited by the Petitioners in the Advocates Welfare Fund within a period of two months. R.V. Patil.
id_1738	0	Date of decision: 7 October 2020. Through: Petitioner in person versus Through: Mr. Rajiv Nayyar, Senior Advocate with Mr. Satyakam, Assistant Solicitor Counsel for Mr. Kailash Vasdev and Mr. Ramesh Gupta Khanna, Senior Advocates with Mr. Amit P. Shahi and Mr. Yugansh Mittal, Advocates for Bar Council of Delhi along with Mr. K. C. Mittal, Former Chairman, Bar Council of Delhi, Mr. Rajiv Khosla (Chairman of Bar Council of Delhi), Mr. Ajayinder Sangwan, Honourable Secretary Bar Council of Delhi. Through: Mr. Amarjit Singh Chandiok, Senior Advocate with Mr. Ritesh Kumar, Mr. Tarranjit Singh Sawhney and Mr. Naginder Benipal, Advocates with Petitioner No.1, Petitioner No.3 and Petitioner No.5 in person. Versus Through: Mr. Rajiv Nayyar, Senior Advocate with Mr. Satyakam, Assistant Solicitor Counsel for Mr. Kailash Vasdev and Mr. Ramesh Gupta Khanna, Senior Advocates with Mr. Amit P. Shahi and Mr. Yugansh Mittal, Advocates for Bar Council of Delhi along with Mr. K. C. Mittal, Former Chairman, Bar Council of Delhi, Mr. Rajiv Khosla (Chairman of Bar Council of Delhi), Mr. Ajayinder Sangwan, Honourable Secretary Bar Council of Delhi. + W.P.(C) 3362/2020 & CM Applications 11901-02/2020, 17666/2020. Petitioner Through: Mr. Kailash Vasdev and Mr. Ramesh Gupta Khanna, Senior Advocates with Mr. Amit P. Shahi and Mr. Yugansh Mittal, Advocates for Bar Council of Delhi along with Mr. K. C. Mittal, Former Chairman, Bar Council of Delhi, Mr. Rajiv Khosla (Chairman of Bar Council of Delhi), Mr. Ajayinder Sangwan, Honourable Secretary Bar Council of Delhi. Versus Through: Mr. Rajiv Nayyar, Senior Advocate with Mr. Satyakam, Assistant Solicitor Counsel for Mr. Anil Soni, Chief Government Solicitor Counsel with Mr. Devesh Dubey, Advocate for Union of India. Mr. Sanjay Rawat and Mr. J. P. N. Shahi, Advocates for New India Assurance Company with Mr. Jitendra Mehdiratta (Mobile: 9899023885), Deputy General Manager in person. Through: Mr. Kailash Vasdev and Mr. Ramesh Gupta Khanna, Senior Advocates with Mr. Amit P. Shahi and Mr. Yugansh Mittal, Advocates for Bar Council of Delhi along with Mr. K. C. Mittal, Former Chairman, Bar Council of Delhi, Mr. Rajiv Khosla (Chairman of Bar Council of Delhi), Mr. Ajayinder Sangwan, Honourable Secretary Bar Council of Delhi. Versus Through: Mr. Rajiv Nayyar, Senior Advocate with Mr. Satyakam, Assistant Solicitor Counsel for Mr. Yudhvir Singh Chauhan, Advocate for Coordination Committee of all District Bar Associations. Petitioner Through: Mr. Kailash Vasdev and Mr. Ramesh Gupta Khanna, Senior Advocates with Mr. Amit P. Shahi and Mr. Yugansh Mittal, Advocates for Bar Council of Delhi along with Mr. K. C. Mittal, Former Chairman, Bar Council of Delhi, Mr. Rajiv Khosla (Chairman of Bar Council of Delhi), Mr. Ajayinder Sangwan, Honourable Secretary Bar Council of Delhi. Versus Through: Mr. Rajiv Nayyar, Senior Advocate with Mr. Satyakam, Assistant Solicitor Counsel for Mr. Anil Soni, Chief Government Solicitor Counsel with Mr. Devesh Dubey, Advocate for Union of India. Mr. Yudhvir Singh Chauhan, Advocate for Coordination Committee of all District Bar Associations., Prathiba M. Singh, Judge (Oral) This hearing has been held through video conferencing., The present petitions raise various issues in respect of life insurance policies and group mediclaim policies for lawyers under the Chief Minister's Advocates Welfare Scheme (hereinafter, Scheme), announced by the Delhi Government. The Scheme was initially announced in November and December 2019. Quotations were submitted by the Life Insurance Corporation of India (hereinafter, LIC) and the New India Assurance Company Limited (hereinafter, NIAC) on the basis of data given by the Bar Council of Delhi (hereinafter, BCD) at the relevant time. Thereafter, however, due to various reasons, purchase of the policies did not fructify and the COVID‑19 pandemic and consequent lockdown delayed availing of the policies even further., There are three sets of writ petitions before the Supreme Court of India: The first set relates to lawyers from the National Capital Region who seek extension of the Scheme to themselves as they are all registered with the Bar Council of Delhi. The second set of petitions has been filed by the Bar Council of Delhi, praying that insofar as the insurance policies for lawyers who are residents of Delhi are concerned, they ought to be purchased. In the third set of petitions, the prayer is for reopening of the registration for lawyers who wish to avail of these policies., Insofar as the question of the Scheme being extended to lawyers from the National Capital Region and the reopening of registration is concerned, the Supreme Court of India would have to hear all the parties concerned to adjudicate the issues that arise., Insofar as the Delhi‑based lawyers are concerned, a need was felt by the Supreme Court of India for the policies in respect of these lawyers to be finalized so that the benefit of the Scheme can be availed of by these lawyers, especially during the COVID‑19 pandemic. Towards this purpose, the Supreme Court of India has from time to time passed various orders, by which the Delhi Government has been directed to float the tender and seek bids from insurance companies., On 18 June 2020, the Government of National Capital Territory of Delhi (GNCTD) was ordered to take all steps required for the immediate procurement of insurance policies for the 29,098 advocates whose names have been verified by the Bar Council of Delhi. To this end, the GNCTD was directed to issue the Notice Inviting Tenders (NIT) seeking bids from insurance companies within one week. After being informed of the last date for submission of tender and the date for opening of Technical Bids, a timeline for opening of financial bids was given by the Supreme Court of India on 17 July 2020, which was monitored on subsequent dates., On 28 August 2020, on a perusal of the status report as per which the premium being demanded by the insurance companies had doubled since November/December 2019, meetings were directed to be held between senior officials from LIC and NIAC, members of the Technical Evaluation Committee and two representatives of the Bar Council of Delhi. Senior officials from LIC and NIAC were also directed to join the proceedings on the next date., On the last date i.e. 15 September 2020, the Supreme Court of India was informed that the Technical Evaluation Committee had held meetings with both Insurance Companies with respect to 28,774 lawyers. It was reported that while LIC had given a firm and final quotation, negotiations were still ongoing with NIAC. The Technical Evaluation Committee was directed to supply to LIC and NIAC the demographic data relating to 40,115 lawyers and obtain final quotations, in respect of 40,115 and 28,774 lawyers. A further status report was called for and the matter was listed today for further directions and for representatives of the insurance companies to appear before the Supreme Court of India., After perusing the various bids which were submitted and the meetings which were held between the Government and the Technical Evaluation Committee appointed by the Delhi Government, along with the representatives of the Bar Council of Delhi, the following two insurance companies were finalized for the purposes of issuing the policies: (1) LIC for the purpose of group term life‑insurance. (2) NIAC for the purpose of group mediclaim insurance., It was also noticed that due to passage of time and change in the demographic profile of the lawyers from the data submitted in 2019, the premium which was being demanded by the said companies was also considerably higher than what was quoted in November and December 2019. Accordingly, the said companies were requested to appear before the Supreme Court of India and parallelly, meetings were also held with various stakeholders of the companies., With the assistance of the officials of GNCTD, including the Committee constituted for this purpose, Senior Counsels who have appeared today and representatives of the Bar, including the present as well as erstwhile Chairman of the Bar Council of Delhi, the said companies have arrived at the final figures for issuance of the policies. The terms and conditions of the group term life‑insurance policies are provided in LIC's email dated 14 September 2020, which reads as under: This refers to the second video conference held in the aforesaid matter on 9 September under Chairmanship of Shri Azimul Haque, IAS, Chairman of Technical Evaluation Committee for the aforesaid matter. The draft minutes of the said video conference have been received and the same was placed before the Chairman of the Corporation for looking into the matter of granting Exclusive and Special reduction, as requested by the Government of the National Capital Territory of Delhi in the aforesaid matter, so as to enable them to proceed with covering 28,744 Advocate members of Delhi Bar Council as mentioned under the bid document floated for the said purpose. It may be noted that the Chairman of the Corporation exercising his discretionary powers, has, as a very special case, accepted the said request as preferred by the Government of NCT of Delhi through the Chairman of its Evaluation Committee for the aforesaid bid and thus, the revised annual premium for the aforesaid group of 28,774 Advocate members of Delhi Bar Council shall now be Rs 10,07,70,894/-, provided the Age Distribution of proposed members to be covered meets following Age Distribution, as shared: Age Group (Years) No of Advocate Members Total 28,774. This Exclusive and Special consideration shall only be applicable in respect of the Bid document under reference (proposing to cover 28,774 Bar Council Members, Delhi) and shall not include any other Group/Additional Members under the same Group (other than indicated vide Bid under reference). The special rate, approved without profit sharing, shall be valid for a period of one year from the date of commencement of policy and the same will be reviewed at next annual renewal date. This Special Consideration shall not form any precedence for the said Group (Delhi Bar Council) for any additional members/future renewals and/or for any other Bar Council in India, if they so desire to insure their Advocate Members. All future/further reference shall be reviewed afresh, independently. Hemant Buch, Chief/PGS (Marketing/Government Business & Compliance), LIC of India, Central Office, Mumbai. Insofar as the group term life‑insurance policies are concerned, the LIC's final quotation with respect to 28,774 lawyers is thus finalised at Rs 10,07,70,894/- as set out in the above email., Insofar as the group mediclaim insurance policies are concerned, Mr. Jitendra Mehndiratta, Deputy General Manager at NIAC has made a detailed presentation today and instead of Rs 12,000/- as earlier quoted, has agreed for a final rate of Rs 10,500/- as per family premium payable, for a total of 29,077 lawyers. However, this would be with the modification of one term of the policy i.e., co‑payment would now be 25% instead of 20%. The remaining terms as contained in letter dated 14 September 2020 and reiterated on 4 October 2020 shall remain intact. Mr. Mehndiratta has agreed to all these terms, subject to all the policies being purchased on or before 30 November 2020. The above rates have also been agreed to be extended till 40,115 lawyers by the NIAC, if this Court decides that the said lawyers are also entitled to the Scheme of the Delhi Government., In view of the above figures having now been finalised with the companies, the Delhi Government shall now proceed to purchase the insurance policies from LIC for 28,744 members and from NIAC for 29,077 lawyers who are members of the Bar Council of Delhi, whose names already stand verified. The purchase of the policies shall be effected on or before 30 November 2020. Since this is a group insurance policy, each of the lawyers to whom this benefit is given would be given a letter by the respective insurance companies specifying that the group term life‑insurance and group mediclaim insurance has been purchased for their benefit. The rates quoted above are slightly higher than which were quoted in November and December 2019, however, since the figures are within the overall approved budget of the Delhi Government at this stage, the same are being approved by the Supreme Court of India., An apprehension has been expressed by Mr. Nayar, Senior Counsel on instruction from Mr. Satyakam, Senior Counsel for the GNCTD that in case the Supreme Court of India extends the benefit of the Scheme to lawyers residing in the National Capital Region, the approved budgetary allocation can be exceeded. The said issue would be decided at the time of final hearing and at that stage, the question of budgetary allocation would also be considered., Insofar as compliance of paragraph 4 of the order dated 15 September 2020, in respect of the report being placed on record is concerned, the Principal Secretary, Department of Law, Justice and Legislative Affairs, GNCTD shall contact Mr. Rakesh Khanna, Senior Counsel and obtain a copy of the report along with all the annexures and verification reports. The same shall be filed, at least one week before the next date., List on 6 November 2020 for hearing on the remaining two issues. Parties to file their written synopsis at least three days before the next date. The earlier date of hearing in the petitions i.e., 8 October 2020 stands cancelled.
id_1740	0	Criminal Law Petition 185 of 2018 and Criminal Law Petition 257 of 2018 were reserved on 22 September 2020 and pronounced on 29 September 2020. The applications were filed by the Central Bureau of Investigation and the Directorate of Enforcement. The petitioners were represented by Mr. Sanjay Jain, Additional Solicitor General, with Ms. Sonia Mathur and Mr. Naveen Matta, Special Public Prosecutors, together with Mr. Amit Mahajan, Central Government Solicitor, Mr. Padmesh Mishra, Mr. Arkaj Kumar, Ms. Noor Rampal and Ms. Mallika Hiremath, Advocates, and Mr. Sudhir Kumar, Additional Director, Enforcement Directorate. Respondents were represented by Mr. Manu Sharma, Advocate for respondent No. 1; Mr. Vijay Aggarwal, Mr. Mudit Jain, Mr. Ashul Aggarwal, Mr. Shailesh Pandey, Ms. Barkha Rastogi and Mr. Hardik Sharma, Advocates for respondents No. 2, 3, 4, 12, 15 and 18; Mr. Mahesh Agarwal, Mr. Rishi Agrawala, Ms. Niyati Kohli and Mr. Pratham Vir Agarwal, Advocates for respondent No. 5; Mr. Sandeep Kapur, Mr. Vir Inder Pal Singh Sandhu, Mr. Abhimanshu Dhyani and Mr. Sahil Modi, Advocates for respondents No. 6 and 13; Mr. Balaji Subramanian and Ms. Ishani Banerjee, Advocates for respondent No. 7; Mr. Sudershan Rajan, Mr. Hitain Bajaj and Mr. Rohit Kumar, Advocates for respondents No. 8, 10 and 14; Ms. Tarannum Cheema and Mr. Akshay Nagarajan, Advocates for respondent No. 9; and Mr. Varun Sharma, Advocate for respondent No. 11., Additional applications, Criminal Miscellaneous Application 11718 of 2020 in Criminal Law Petition 184 of 2018 and Criminal Miscellaneous Application 11888 of 2020 in Criminal Law Petition 185 of 2018, were filed through the same counsel. These applications sought early hearing of the criminal leave petitions, which challenge the judgment dated 21 December 2017 passed by the learned Special Judge in Criminal Law Petition 185 of 2018 and Criminal Law Petition 257 of 2018, wherein all respondents were acquitted of the offences charged against them., The petitions seek leave to appeal against the judgment of 21 December 2017. The offences alleged are: (i) in Criminal Law Petition 184 of 2018, violation of Section 3 of the Prevention of Money Laundering Act, punishable under Section 4 of the same Act; (ii) in Criminal Law Petition 185 of 2018, offences under Sections 420, 409, 468, 471 and 193 of the Indian Penal Code read with Section 120B of the Indian Penal Code, and offences under Sections 7, 11, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988; and (iii) in Criminal Law Petition 257 of 2018, offence under Section 420 of the Indian Penal Code read with Section 120B., At the hearing, Mr. Sanjay Jain, the Additional Solicitor General appearing for the petitioners, submitted that the learned Special Court, while delivering the impugned judgment on 21 December 2017, failed to appreciate the clinching evidence on record and did not consider it in the correct perspective. He contended that the acquittal order adversely affects the interest of the Government of India and the public exchequer in other related proceedings. He further noted that arguments on the grant of leave to appeal had already been concluded by the petitioner, the CBI, and that the matter was now part‑heard before this Bench., The Additional Solicitor General pointed out that on 5 March 2020 this Court fixed the dates of hearing for 24, 25 and 26 March 2020, but due to the COVID‑19 pandemic physical hearings were suspended and the matter could not be heard. The matter was subsequently listed for hearing in October 2020, and since March 2020 it has not been heard at all. He therefore urged that the applications be allowed and the petitions be heard expeditiously, emphasizing the great public importance of the issues involving integrity of government functioning and the need to punish the guilty persons to maintain a deterrent effect on society., The Additional Solicitor General further submitted that this Court is scheduled to demit office on 30 November 2020 and, if arguments remain inconclusive, the petitioners will have to address the arguments afresh. Replies to the applications have been filed on behalf of respondent No. 4 in Criminal Law Petition 184 of 2018; respondents No. 3 and 11 in Criminal Law Petition 185 of 2018; and respondents No. 6 and 8 in Criminal Law Petition 257 of 2018. Lengthy arguments were addressed by learned counsels for the parties over two consecutive days., Mr. Manu Sharma, learned counsel for respondent No. 1 in Criminal Law Petition 184 of 2018 and Criminal Law Petition 185 of 2018, opposed the early hearing applications, stating that during the COVID‑19 pandemic physical hearing is not possible and that only urgent matters are being taken up through video conferencing. He argued that the petitioners had not provided any cogent reason for preferring these leave petitions over appeals where the accused are in custody. He also raised the question of whether the amendment introduced by the Prevention of Corruption (Amendment) Act, 2018 applies to these petitions, noting that the Court has limited time before demitting office., Counsel for respondents No. 2, 11, 8, 9, 12, 15, 16 and 17 submitted that the filing of the application for early hearing by the petitioner is merely a counter‑blast to applications filed by respondents seeking release of attached properties. They contended that the petitioners have failed to establish urgency and that the applications should be dismissed. Respondent No. 11 further submitted that, since March 2020, the nation has been under the grip of the COVID‑19 pandemic and the Supreme Court and this Court have taken measures to ensure safety, including a suspension of functioning up to 30 September 2020, with physical hearings resuming only for urgent matters from 1 September 2020., Mr. Siddharth Aggarwal, learned counsel for respondent No. 11, emphasized that Criminal Law Petition 185 of 2018 has a voluminous record and it is not feasible to make effective references to the record via video conferencing. He argued that hearing these leave petitions in a restricted environment would cause great prejudice to the respondents and that the three leave petitions are not related because three separate trials and judgments have taken place. He also noted that the Bench is sitting as a Division Bench and hearing these petitions may not be feasible, though he expressed readiness to assist the Court if required., Mr. Vijay Aggarwal, counsel for multiple respondents, sought dismissal of the applications on the ground that the petitioners have suppressed the fact that a similar application was filed and dismissed by a Coordinate Bench of this Court. He argued that many criminal appeals pending for years should be heard first and that the petitioners' claim of part‑heard status and the impending demitting of office are frivolous. He further highlighted that applications Crl.M.A. 1731/2020 and Crl.M.A. 1820/2020, filed by different respondents, raise the issue of the applicability of the Prevention of Corruption (Amendment) Act, 2018, which is yet to be adjudicated by a Division Bench., The Additional Solicitor General responded that references to this Court by some Single Benches do not impede hearing the leave petitions, as no decision has yet been rendered. He clarified that the pendency of applications by respondents is only part of the submissions to be made in the petitions for grant of leave. He also noted that other matters arising out of the 2G spectrum case, such as Criminal Revision Petitions 381/2017, 370/2017 and 57/2017, are pending before different Benches, and there is no reason to give priority to these particular leave petitions., The Additional Solicitor General relied upon the Supreme Court decision in State of Maharashtra v. Sujay Mangesh Poyarelar (2008) 9 SCC 475, stating that while hearing a leave to appeal under Section 378 of the Code of Criminal Procedure, the High Court must consider whether a prima facie case exists on arguable points, not whether the order of acquittal would be set aside. He quoted the relevant paragraphs: Section 378(3) provides that no appeal shall be entertained except with the leave of the High Court; the High Court must apply its mind and consider whether a prima facie case is made out; and it is not an absolute rule that every petition for leave to appeal against an acquittal must be allowed., The Court considered the rival submissions and noted that detailed part‑arguments have already been heard in Criminal Law Petition 185 of 2018. The applications were first listed on 24 October 2019, with part‑arguments addressed on several dates thereafter, but the hearing was adjourned on 5 March 2020 due to the COVID‑19 pandemic. The Court now has to decide whether to hear the leave petitions at an early date. It observed that part‑heard matters should not be left inconclusive and, if time permits, further arguments should be heard and decided as expeditiously as possible, keeping in mind the interest of justice and the pending matters involving convicts in jail.
id_1740	1	It is good on the part of the learned counsels for the respondents to apprise the Supreme Court of India that how it should proceed with the cases pending in the court but let the learned counsels be also reminded of the fact that they being the officers of this Court should assist in part‑heard cases so that these are not left undecided and need not be heard afresh by a new Bench, thus causing unnecessary loss to the public exchequer and wastage of judicial time. It is reiterated that the Supreme Court of India is conscious of its duty and welcomes the suggestions given by the learned counsels but at the same time is of the opinion that it is in the interest of administration of justice that, so far as possible, this Court should make all endeavours to conclude the part‑heard matters before it demits the office., The learned counsels for the respondents, especially Mr. Vijay Aggarwal and Mr. Siddharth Aggarwal have vehemently opposed the application for early hearing. Rest of the learned counsels have adopted their arguments. Some of the learned counsels, including learned counsel Shri Siddharth Aggarwal, have, however, submitted that if the Supreme Court of India deems it fit to hear these petitions, they will render all the assistance required in deciding the leave to appeal expeditiously., Learned counsel Shri Vijay Aggarwal has explained at length that the judgment rendered by the learned trial court runs into 105 pages in Criminal Law Petition 184/2018; 1,552 pages in Criminal Law Petition 185/2018 and 526 pages in Criminal Law Petition 257/2018. Learned counsel submitted that evidence in these matters runs into thousands of pages and the same needs to be examined in arriving at the truth and also to come to a conclusion whether the decision rendered by the learned trial court is perverse or not. According to him, because of the judgment of acquittal, presumption of innocence in favour of respondents stands fortified and the Supreme Court of India should, therefore, be slow to interfere in such kind of cases. He as well as some other learned counsels have expressed their apprehension that it will be difficult to connect with the clients and they will not be able to make effective submissions., There is no quarrel with the proposition of law that innocence of respondents stands fortified by the order of acquittal passed by the learned trial court. This principle of law will, no doubt, be kept in mind and considered when it is required to be applied at the appropriate stage. So far as the concern expressed by learned counsels for the respondents regarding hearing through video conference is concerned, it may be pointed out that the Supreme Court of India has been conducting hearings through video conference since 24 April 2020 and cases which are voluminous in nature have also been decided. This ground should not be an excuse for the Supreme Court of India or for the learned counsels for not proceeding with the arguments. Moreover, in this age of advanced technology, there are speedy and effective modes of communication through which people can easily connect, even though sitting at long distances. Since technology has advanced, it is difficult to accept the submissions that matters being voluminous in nature cannot be argued or heard by video conference., It was further argued by learned counsels for the respondents that the Supreme Court of India should not proceed with the matter as it is not urgent in nature. However, in the opinion of the Supreme Court of India, when it has heard in detail the Criminal Law Petition 185/2018, though in part, it should not leave the said case and other cases inconclusive for another Bench to hear afresh resulting in wastage of precious judicial time and putting unnecessary burden on the public exchequer and that, in essence, is the urgency in this matter. The Court should not shirk from its duty and at the same time, all the learned counsels are also expected to assist and cooperate with the Supreme Court of India in expeditious disposal of these petitions. No doubt, the documents are voluminous in nature and had the petitioners moved these applications two or three months earlier, it would have been easier to decide the petitions. However, even if it has not been done due to the pandemic and restricted functioning of the courts, as submitted by learned Additional Solicitor General, the Supreme Court of India should not make it a ground for refusing early hearing and should make all endeavours to hear the petitions undaunted by the fact that the record is voluminous and the arguments are going to be in detail., Learned counsel Mr. Vijay Aggarwal has also argued that the petitioner has suppressed the fact that it had earlier also moved a Criminal Law Petition 185/2018 and Criminal Law Petition 257/2018 application for early hearing before a Coordinate Bench of the Supreme Court of India, but the same was dismissed with the observation that the case be heard on the date fixed i.e. 24 October 2019. In the opinion of the Supreme Court of India, there is no concealment by the petitioner because the petitions were at that time at a different stage i.e. arguments had not yet started, whereas the matter now stands on a different footing i.e. arguments on behalf of the petitioner in Criminal Law Petition 185/2018 stand concluded and respondents have also addressed part arguments., The Supreme Court of India is of the opinion that with the assistance and cooperation of learned counsels, all endeavours should be made to hear the matter as early as possible. Though the Supreme Court of India has limited time, yet no one should carry an impression that he will not get a fair opportunity of hearing. The Supreme Court of India assures that everyone will be given an effective hearing. However, at the same time it goes without saying that irrelevant and repetitive arguments need to be avoided., In the end, the Supreme Court of India has only one thing to say that no doubt there may be delay in filing the applications for early hearing; no doubt the documents are voluminous in nature; no doubt the evidence runs into thousands of pages; no doubt one of the judgments also runs into 1,552 pages, but that does not mean that this should deter the Supreme Court of India in hearing the criminal leave petitions. Judicial discipline demands that the judge should do his duty and must not succumb to pessimism and it is not expected from him to sit leisurely with his pen down and say that he will not hear the cases because the record is voluminous and the time at his disposal is limited. It will be folly not to make an attempt and to sit idle abdicating one's duty. It is advisable to perform one's duty irrespective of the fact whatever conclusion the petitions reach. The Supreme Court of India, therefore, will not fail in its duty and expects all the learned counsels to cooperate and assist the Supreme Court of India in deciding the matters expeditiously., In view of the above discussion, the applications moved for early hearing of the leave petitions are allowed. Let the petitions be listed on 5 October 2020 at 02:30 P.M. for hearing on a day‑to‑day basis till further orders. These petitions shall be heard after the Supreme Court of India has finished the work of the Division Bench. It is clarified that arguments will first be heard in the part‑heard petition i.e. Criminal Law Petition 185/2018 and thereafter in other petitions., With the aforesaid observations, these applications stand disposed of. The order be uploaded on the website of the Supreme Court of India forthwith.
id_1743	0	The complainant, a Deputy Commissioner of Police, Zone IX, Mumbai, residing at Dy. Comm. of Police Zone IX Office, Hill Road, Bandra West, Mumbai 400050, files this complaint through the Public Prosecutor. The complainant is an Indian inhabitant and a 2007-batch officer of the Indian Police Service, currently serving as Deputy Commissioner of Police, Zone IX, Mumbai. The Home Department, Government of Maharashtra granted sanction for this complaint by letter dated 23 October 2020 (reference no. IPS/4120/145/pol-1). A copy of the sanction letter is annexed as Annexure‑A., The complainant is a highly distinguished law‑abiding citizen of India who has served the State of Maharashtra for over thirteen years and enjoys an excellent professional reputation. He is well known among the public for being tough on crime and has conducted investigations in numerous high‑profile cases pertaining to national security and public safety. His performance appraisal reports attest to his impeccable record as a police officer., The complainant comes from a humble background and has achieved professional success purely on account of merit, hard work and sincere effort. He enjoys an immaculate reputation in society, especially among the populace he has served for almost thirteen years, and among his caste, calling and professional circles. As Deputy Commissioner of Police, Zone IX, Mumbai, the most populous city in India, he has a distinct presence in public affairs, particularly in relation to criminal investigations carried out under his supervisory jurisdiction., The present complaint is filed by the complainant, being aggrieved by defamatory attacks made against him in the discharge of his official functions as Deputy Commissioner of Police, Zone IX, Mumbai. The attacks were intended to assassinate his official character and maliciously cause undue humiliation to the Mumbai Police Department and its personnel., Accused No. 1, Mr. Arnab Ranjan Goswami, made grossly false, malicious and defamatory statements that were telecast on his channel Republic Bharat and subsequently published on the channel’s YouTube channel on 7 August 2020. The telecast was presented as a panel discussion on the phone records of Ms. Rhea Chakraborty in connection with the death of Mr. Sushant Singh Rajput, but instead turned into a tirade of defamatory statements against the complainant. Mr. Goswami, who is the Managing Director of AGR Outlier Media Private Limited (which owns Republic TV), is also the Editor‑in‑Chief and co‑founder of Republic TV. He runs the Twitter handle @arnab5222, which has 188,200 followers, and has published several defamatory tweets reiterating the contents of the telecast. A screenshot of the Twitter account is annexed as Annexure‑B., Accused No. 2, Ms. Samyabrata Ray Goswami, is the second director of AGR Outlier Media Private Limited and the wife of Accused No. 1. She, together with Accused No. 1, conducts the day‑to‑day affairs of AGR Outlier Media Private Limited and Republic TV. Since the company has only two directors, both are executive directors and any decision regarding the affairs of the company, including Republic TV/Republic Bharat, requires the involvement, knowledge, consent, approval and concert of Ms. Ray Goswami. Consequently, the defamatory publication was made with her wilful intention, involvement, knowledge, consent, approval and concert, making her liable. The director master data of AGR Outlier Media Private Limited is annexed as Annexure‑D., Accused No. 3, AGR Outlier Media Private Limited, admittedly owns and operates Republic TV/Republic Bharat. Accused Nos. 1 and 2, who control the affairs of the company, made the defamatory telecast on Republic Bharat and posted it on YouTube on 7 August 2020 with a clear intention to harm the reputation of the complainant. Their criminality is imputed to the company as it is the alter ego of the directors., The defamatory publications that prompted this complaint are as follows: (a) Tweet dated 16 August 2020 by @arnab5222 asking whether the Deputy Commissioner of Mumbai took oath to serve India or Maharashtra politicians. (b) Tweet dated 7 August 2020 by @arnab5222 stating that Rhea Chakraborty was in touch with the Deputy Commissioner of Mumbai for more than one year and that the same officer ignored family requests to protect Sushant. (c) Tweet dated 7 August 2020 by @arnab5222 quoting Mumbai Police Commissioner Trimukhe saying he called Rhea for questioning. (d) Tweet dated 7 August 2020 by @arnab5222 questioning why Deputy Commissioner Abhishek Trimukhe was in contact with Rhea Chakraborty. (e) Tweet dated 7 August 2020 by @arnab5222 alleging that Rhea was in contact with Deputy Commissioner Abhishek Trimukhe for the past year while handling the Sushant case. (f) Tweet dated 7 August 2020 by @arnab5222 providing call details between Rhea Chakraborty and Deputy Commissioner Abhishek Trimukhe. (g) Television telecast on Republic TV Hindi channel dated 7 August 2020, uploaded on the official Republic Bharat YouTube channel (link: https://youtu.be/LaraCGClSq4). The video is reproduced on CD and marked as Annexure‑K. Collectively, these portals are referred to as the Relevant Portals and the false, malicious and defamatory publications as the Defamatory Publications., The defamatory telecast contains the following imputations: (i) Accused No. 1 alleged that the Mumbai Police were protecting the murderers of Sushant Singh Rajput and were in contact with them, portraying the police as the greatest obstacle to justice. (ii) A voice‑over claimed that the Mumbai Police had protected the perpetrators, failed to hear the pleas of Sushant’s family, and were advising Rhea Chakraborty on how to evade arrest and hide evidence. These statements are false, malicious, baseless and intended to tarnish the reputation of the Mumbai Police and the complainant., By making the above defamatory and false publications, Mr. Goswami and his accomplices sought to create the impression among the public that (a) the complainant and the Mumbai Police had made a deal with Ms. Rhea Chakraborty to protect her in the Sushant Singh Rajput death case; (b) they were trying to illicitly save the culprits from law; (c) they were leaking investigation details to Ms. Chakraborty; (d) they deliberately ignored the written complaint of the deceased’s family; (e) they were derailing the investigation to achieve a particular outcome; and (f) the complainant, as the jurisdictional Deputy Commissioner, was part of a larger conspiracy to scuttle the investigation. These imputations are completely false and contrary to the record., The Honourable Supreme Court, in its judgment dated 19 August 2020 in Transfer Petitioner (Criminal) No. 225 of 2020 (Rhea Chakraborty v. State of Bihar & Ors.), observed that the records produced before the Court do not prima facie suggest any wrongdoing by the Mumbai Police., The complainant states that the defamatory publications are not only defamatory, but also derogatory, offensive, inaccurate, baseless, misleading and have created unjustified rumours. They have caused severe prejudice to his reputation, goodwill and career, and have caused deep distress to his colleagues, juniors and family members. The complainant received numerous calls from colleagues, seniors, government officials, eminent persons, relatives and institutions demanding explanations, which aggravated his suffering., The accused persons repeatedly published malicious, baseless and false allegations against the complainant under the guise of journalism. Responsible journalism and freedom of expression require great caution; freedom of speech and press is not an absolute right and is clothed with responsibility. The accused have a history of controversial behaviour, including several First Information Reports that were later quashed by the Supreme Court and the High Court, and a prior defamation suit by Honourable Justice (Retd.) Shri P. B. Sawant for which they were ordered to pay Rs. 100 crore in damages., Television news channels are self‑regulated by the Code of Ethics and Broadcasting Standards issued by the News Broadcasters Association. Republic TV (and Republic Bharat) is bound by this code, which mandates impartiality, accuracy, neutrality and the avoidance of defamatory or libellous content. The accused persons violated these principles by publishing the defamatory material with wilful neglect of their known obligations., The complainant submits that, due to the malicious false imputations, he has suffered a colossal loss of goodwill and reputation. The accused persons made no effort to verify facts or consider the ramifications of their allegations on a dedicated public servant and his family., The accused persons are aware that the investigation into the death of the late Bollywood star Sushant Singh Rajput will attract significant public interest. Instead of acting as responsible journalists, they sensationalised the case, used the deceased’s photograph to disseminate the story, and deliberately defamed the complainant with criminal intent, exposing him to irreparable loss of reputation, shame and injury in his professional and personal life., Defamation law, as evolved through several judicial pronouncements of the Apex Court, holds that a statement made with knowledge of its falsity or with reckless disregard constitutes actual malice, evidenced by ill will, evil motive, intention to injure, hatred, enmity or spite. Reckless disregard is a statement made with a high degree of awareness of its probable falsity., The complainant alleges that the per se defamatory publications were authored, planned, published and presented by Accused Nos. 1, 2 and 3 (through Republic TV) and Accused No. 4 on Twitter, sharing a common intention and abetting the offence. Accordingly, they have committed offences under Section 500, Section 501 read with Section 109 and/or Section 34 of the Indian Penal Code, 1860., The complainant seeks compensatory as well as punitive damages under defamation law for the unwarranted character assassination inflicted upon him in his official capacity. The liability and exposure of the accused persons under such legal action should be considerable.
id_1743	1	The Honourable Court possesses the territorial jurisdiction to entertain and try the instant complaint as the complainant was defamed and continues to be defamed in Mumbai. The complainant resides and is posted in Mumbai and has his office at the address as mentioned in the cause title. He came across the circulation and publication of the above mentioned malicious, false, and defamatory content in Mumbai. Accused Nos. 1 and 3 are also residents of Mumbai., It is submitted that there is no other alternate, speedy, effective, and efficacious remedy in the aforesaid facts and circumstances. The cause of action arose on 7 August 2020 and therefore the said complaint is well within limitation., It is submitted that the relevant screenshots of the tweets of Twitter ID @arnab5222, date 7/08/2020 and 16/08/2020 and its printouts were obtained by the Stenographer of the Deputy Commissioner of Police, Zone IX, Mumbai in her office., The prosecution may kindly be permitted to add, alter and amend the contents, grounds and any other relevant documents, as and when necessary. The prosecution craves leave to tender Section 65B of the Evidence Act certificates as required and when called by this Honourable Court., It is submitted that no other criminal complaint has been filed against the accused persons named in the cause title pertaining to the offence in reference before any other court in India., It is therefore humbly prayed as under: (a) That this Honourable Court be pleased to take cognizance of the offence defined under section 499 of the Indian Penal Code and punishable under sections 500 and 501, and/or sections 500, 501 read with section 109, and/or sections 500, 501 read with section 34 of the Indian Penal Code and that a warrant be issued against the accused named in the cause title. (b) That the accused be directed to pay compensation to the complainant under Section 357 of the Criminal Procedure Code. (c) That the accused persons be directed to pay the cost of the litigation in pursuance of the present complaint as per the provisions of Section 359 of the Criminal Procedure Code., For this act of kindness and justice, the complainant shall ever remain duty bound. Dated: Public Prosecutor for Greater Mumbai Police, Zone IX, Mumbai.
id_1746	0	Reserved on: 24.02.2022 Pronounced on: 02.03.2022 Versus Argued by: Mr. U.K. Agnihotri, Advocate for the petitioners. Mr. Kanwar Sanjiv Kumar, Assistant Advocate General, Haryana., The challenge in the instant revision petition is to the judgment dated 02.12.2021 passed by the learned Additional District and Sessions Judge, Fast Track Court, Sonepat in CRA.35/2021 as well as to the judgment of conviction dated 09.03.2021 and the order of sentence dated 12.03.2021 passed by the Principal Magistrate, Juvenile Justice Board, Sonepat whereby the petitioners have been convicted for commission of offences punishable under Section 377 of the Indian Penal Code, 1860 (IPC) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act)., Vide order of sentence dated 12.03.2021, the following sentences were imposed upon the petitioners to run concurrently: Ankit, son of Sh. Manoj, resident of village Khandrai, Gohana City, Sonepat, was sentenced under Section 10 of the POCSO Act to imprisonment for a period of two years and a fine of Rs. 1,000; in default of payment of the fine he shall be further imprisoned for thirty days of simple imprisonment. He was also sentenced under Section 377 of the IPC to imprisonment for a period of two years and a fine of Rs. 500; in default of payment of the fine he shall be further imprisoned for fifteen days of simple imprisonment. Mohan, son of Sh. Moti Ram, resident of village Khandrai, Gohana City, Sonepat, was sentenced under Section 10 of the POCSO Act to imprisonment for a period of two years and a fine of Rs. 1,000; in default of payment of the fine he shall be further imprisoned for thirty days of simple imprisonment. He was also sentenced under Section 377 of the IPC to imprisonment for a period of two years and a fine of Rs. 500; in default of payment of the fine he shall be further imprisoned for fifteen days of simple imprisonment. Deepak, son of Sh. Balraj, resident of village Khandrai, Gohana City, Sonepat, was sentenced under Section 10 of the POCSO Act to imprisonment for a period of two years and a fine of Rs. 1,000; in default of payment of the fine he shall be further imprisoned for thirty days of simple imprisonment. He was also sentenced under Section 377 of the IPC to imprisonment for a period of two years and a fine of Rs. 500; in default of payment of the fine he shall be further imprisoned for fifteen days of simple imprisonment., The brief facts of the case are that the petitioners (Children in Conflict with Law, hereinafter referred to as CCL) were apprehended on the basis of a complaint submitted by Vinod Kumar stating that on 15.09.2018 his son Lakshay, aged eight years, had gone to the Primary School, Village Khandrai, at around 6:00 p.m. where Ankit, Mohan and Deepak committed sodomy and an unnatural act of carnal intercourse with his son., Pursuant to the said statement, an FIR was registered, investigation was conducted and the accused CCLs Ankit, Mohan and Deepak were apprehended. Upon completion of investigation, a final report under Section 173 of the Code of Criminal Procedure was presented before the Juvenile Justice Board, Sonepat. No dispute has been raised as to the juvenility of the CCLs., Upon compliance with the provisions of Section 307 of the Code of Criminal Procedure and finding a prima facie case, notice of accusation under Section 377 of the IPC and Section 10 of the POCSO Act was served upon the CCLs, to which they pleaded not guilty and claimed trial., After consideration of the evidence led by the respective parties and careful examination along with the arguments advanced by learned parties, the Principal Magistrate, Juvenile Justice Board, Sonepat concluded that the prosecution had successfully established the guilt of the CCLs and held Ankit, Mohan and Deepak guilty of offences under Section 377 of the IPC and Section 10 of the POCSO Act., The judgment of conviction dated 09.03.2021 and the order of sentence dated 12.03.2021 passed by the Principal Magistrate, Juvenile Justice Board, Sonepat was challenged by filing CRA/35/2021 before the Court of the learned Sessions Judge, Fast Track Court, Sonepat., Upon hearing the parties and after consideration of the submissions advanced by counsel, the learned Sessions Judge, Fast Track Court, Sonepat dismissed the appeal preferred by the CCLs by its order dated 02.12.2021. Hence, the present revision petition., Learned counsel for the petitioners argues that the finding of conviction is perverse and not substantiated by the evidence on record. The prosecution has not been able to establish occurrence of carnal intercourse and relies on the statement of PW‑3 Dr. Sachin, Medical Officer, CHC, Gohana, who examined the victim Lakshay and found no external injuries or marks, while acknowledging his signature on the medical report., A further reference is made to the statement of victim Lakshay (PW‑11). He was examined and found to be in a fit state of mind to depose. He stated that on 15.09.2018 he was going to a shop, met Mohan who invited him to a gym, was locked inside a school room where Deepak and Ankit were already present, and that all three forcibly had intercourse with him and sodomised him. He identified the three CCLs, raised an alarm, after which his father took him to the hospital, and the CCLs threatened to kill him if he disclosed the occurrence. He placed the incident at around 6:00 p.m. and went to the hospital at about 6:30 p.m. with his father and grandmother., Learned counsel submits that the victim’s statement is factually incorrect because the witness never said he was sodomised, only that the CCLs had done a \Wrong Act/Bad Act\. The counsel further argues that the same‑day medical examination showed no external injuries, no semen or spermatozoa, thereby negating the possibility of forcible intercourse or sodomy, and contends that the conviction under Section 377 of the IPC is misconceived., Learned counsel also argues that the conviction under Section 10 of the POCSO Act is unsustainable as the necessary ingredients of aggravated sexual assault are not made out. In the absence of medical evidence to corroborate penetration, the provisions of Section 3 and Section 4 are not attracted. The counsel further urges a lenient view because the petitioners were juveniles at the time of the offence and their future prospects would be gravely marred by the conviction., The petitioners relied on the judgment of the Honorable Supreme Court in Prahlad v. State of Rajasthan (2019) 5 (1) RCR (Criminal) 78, contending that without corroborative and reliable evidence to establish penetrative sexual assault, conviction under Sections 3 and 4 of the POCSO Act is unsustainable and should be set aside., The petitioners also placed reliance on the judgment of the Division Bench in Dalbir Singh v. State of Haryana (2003) (1) RCR (Criminal) 727, which held that the testimony of a child witness can form the basis of conviction even without corroboration, provided the witness is reliable, understands the questions, and gives rational answers., Controverting these arguments, Mr. Kanwar Sanjiv Kumar, Assistant Advocate General, Haryana, stated that the testimony of the child witness cannot be discarded and that the Dalbir Singh judgment actually supports the prosecution. The court had recorded satisfaction that the child witness (PW‑11) was mature enough to depose rationally, and therefore his testimony cannot be disbelieved., It was further argued that there is no rule requiring corroboration of a child’s testimony in every case; it is merely a rule of prudence. The courts below evaluated the maturity of the child witness, recorded satisfaction about his ability, and considered his statement despite the absence of external injuries., The counsel submitted that the phrase \Wrong Act/Bad Act\ as used by the child witness should be understood in the ordinary sense of a child, and it would be inappropriate to apply adult standards to assess the gravity of the offence or to demand a detailed narration to ascertain the ingredients of the offence., Learned State counsel placed reliance on the Supreme Court judgments in Ganesan v. State (2020) (10) SCC 573 and State of Himachal Pradesh v. Manga Singh (2019) (16) SCC 759, stating that when a child witness is mature, trustworthy, and has been thoroughly cross‑examined, conviction can be based on sole testimony, and corroboration is not a sine qua non unless medical evidence is required., I have heard learned counsel for the parties and have gone through the record of the case with their assistance., The question for consideration is the validity and legality of the judgment passed by the courts below. Before addressing the merits, it is essential to refer to the statutory provisions of the Protection of Children from Sexual Offences Act, 2012. Section 2 defines terms. Section 3 defines penetrative sexual assault as penetration of the penis, any object, or any part of the body into the vagina, mouth, urethra or anus of a child, or causing such penetration. Section 9 defines aggravated sexual assault. Section 10 provides punishment for aggravated sexual assault: imprisonment of not less than five years but may extend to seven years and a fine., A perusal of the provisions shows that aggravated sexual assault is a distinct offence from penetrative sexual assault. The petitioners were convicted under Section 10 of the POCSO Act, which deals with punishment for aggravated sexual assault as prescribed under Section 9. Section 9(m) states that sexual assault on a child below twelve years constitutes aggravated sexual assault. Section 7 defines sexual assault as touching the vagina, penis, anus or breast of a child with sexual intent, without penetration., A conjoint reading of the provisions shows that penetration is not essential for the penalty of sexual assault. Any act involving touching the private parts or sexual characteristics of a child with sexual intent, without penetration, amounts to sexual assault. As the victim was about eight years old, the offence falls under aggravated sexual assault punishable under Section 10., The testimony of PW‑11 establishes that the victim was over‑powered by the accused persons and was subjected to a Wrong Act/Bad Act. The witness, after cross‑examination, reiterated that he was subjected to the Wrong Act/Bad Act by the petitioners and denied any suggestion of false implication.
id_1746	1	He has also given a detailed description of the circumstances that preceded the occurrence and also the subsequent developments. Reliability and admissibility of the statement of the said witness cannot be discredited merely for want of corroboration through medical evidence especially when the charge is of a non‑penetrative sexual assault. There is thus no infirmity as far as conviction under Section 10 of the Protection of Children from Sexual Offences Act is concerned., The same now leads to the conviction for an offence under Section 377 of the Indian Penal Code, which reads as follows: Unnatural offences – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section., The argument of the learned counsel that in the absence of the medical record showing any penetration, the offence under Section 377 of the Indian Penal Code would not be attracted in view of the explanatory notes is fallacious and is liable to be rejected as the same is not the true import of the Section., The aforesaid explanation is illustrative and prescribes that an incidence of penetration would be sufficient to constitute carnal intercourse. The said explanation cannot be read to assign a meaning that penetration is necessary to constitute carnal intercourse. Section 377 cannot be restricted by use of the word ‘penetrative intercourse’ when the same has not been specified in the statutory provision. The use of the phrase ‘carnal intercourse’ as against ‘penetrative intercourse’ or ‘sexual intercourse’ is a conscious act of the legislature reflecting the clear intent of the legislature to engraft an offence under Section 377 to be separate and different from the offence contemplated under Section 375 of the Indian Penal Code, which prior to its amendment specifically used the words ‘sexual intercourse with a woman’. Hence, the legislature cannot be perceived to be ignorant of the said phrase and has consciously chosen a different phrase, i.e., ‘carnal intercourse with an object and purpose’., The word ‘intercourse’ has been defined in legal literature as follows: (i) P. Ramanatha Aiyar’s Major Law Lexicon, 4th Edition (2010) defines intercourse, in its widest connotation, as social communication between individuals. (ii) Black’s Law Dictionary, 11th Edition defines intercourse as physical sexual contact, especially involving the penetration of the vagina by the penis. (iii) In the heterosexual context, the judicial connotation given to sexual intercourse is penile‑vaginal penetration. (iv) The word ‘carnal’ is understood in P. Ramanatha Aiyar’s Major Law Lexicon to mean anything pertaining to the flesh or to the sensual., While defining ‘carnal intercourse’, a Division Bench of the Delhi High Court observed in the matter of Kamal versus State (2021 SCC Online Delhi 5396) as follows: (i) Carnal intercourse against the order of nature must have the following ingredients: (a) it must have to do with flesh and sensuality; (b) there must be intercourse between individuals, without restricting it only to human‑to‑human intercourse; (c) it must involve penetration other than penile‑vaginal penetration, such as penile‑anal penetration, digital penetration or object penetration. (ii) The Court held that attempting to define the phrase with exactitude is neither possible nor desirable, but any physical act satisfying the above ingredients committed upon a minor is per se carnal intercourse against the order of nature., Reference may be made to the judgment of the Madras High Court in Raja versus State (Criminal Appeal No. 741 of 2019, decided on 26.07.2021). The evidence of the medical doctor (PW‑15) who examined the victim stated that there was no external injury, and the doctor who examined the accused for potency test also stated that there was no external injury on the private part of the appellant. Although a suggestion was made that a male having forcible sexual contact with a seven‑year‑old child would naturally sustain injury, the Court observed that this is not a hard and fast rule; it depends on the force used and the act committed. Both doctors stated that there was no external injury on either the victim or the appellant, but this alone is not sufficient to disbelieve the prosecution case. The victim’s statement indicated that the appellant took her to a bush behind a Ganesh idol, removed her innerwear, removed his own innerwear, made her lie on the floor and lay on her. He later asked her to leave and threatened her not to reveal the incident. The victim’s clothing became wet. The Court held that the absence of injury on either party does not automatically disbelieve the victim’s testimony., In another Madras High Court case, Criminal Appeal No. 267 of 2021 (Premkumar versus State, decided on 25.10.2021), the Court observed that there was no eye‑witness except the child victim, who was ten years old at the time of occurrence. The victim’s statement recorded under Section 164 of the Criminal Procedure Code was consistent, cogent and natural. Even though the victim and other witnesses turned hostile, the victim’s cross‑examination by the prosecution clearly stated that the accused committed the sexual assault. The Court held that evidence of a hostile witness is not to be totally rejected; it must be scrutinised, and portions consistent with the prosecution case can be relied upon. The Court found no reason to disbelieve the child’s evidence and concluded that the prosecution proved its case beyond reasonable doubt, and the trial judge rightly convicted the appellant., According to the Concise Oxford Dictionary, ‘intercourse’ means sexual connection. To determine whether there is intercourse, one must consider whether the visiting organ is at least partially enveloped by the visited organism. The word ‘penetrate’ is defined as ‘find access into or through, pass through’. In State of Kerala versus Kundumkara Govindum, the Court held that even if there was no penetration into the vagina and the sexual act was committed only between the thighs, the respondents could not escape conviction under Section 377 of the Indian Penal Code. The argument that intercourse requires encirclement of the male organ by the visited organ was rejected. The Court explained that insertion or thrusting of the male organ between the thighs, which are kept together and tight, constitutes penetration and therefore an unnatural offence under Section 377., The Court noted that Section 376 of the Indian Penal Code refers to ‘sexual intercourse’, whereas Section 377 refers to ‘carnal intercourse against the order of nature’. English law decisions, such as Rex v. Samuel Jacobs (1817) and Sirkar v. Gula Mythien Pillai Chaithu Mahomathu (1908), were considered, but the Court held that the words of Section 377 are wide enough to include any carnal intercourse against the order of nature, including intercourse between the thighs., From the foregoing pronouncements, it is evident that to attract Section 377, the act must involve flesh and sensuality and penetration other than penile‑vaginal penetration. The petitioners’ contention that Section 377 can be attracted only by anal penetration is not supported by the statute., A comparative examination of Section 375 and Section 377 of the Indian Penal Code shows a significant difference. Section 375 prescribes the act to involve both male and female genders, whereas Section 377 is gender‑neutral and is attracted by any penetration other than that contemplated under Section 375. Therefore, Section 377 can be attracted even when penetration occurs on any other part of the victim’s body, provided the predominant intent is sexual. The argument that conviction is untenable for lack of external injury is rejected., Supreme Court of India, in Vijay & Chinni versus State of Madhya Pradesh (Criminal Appeal No. 660 of 2008, decided on 27.07.2010), held that the absence of injury or mark of violence on the person of the victim is inconsequential, especially when the victim is a minor who may surrender due to timidity. The Court also referred to Gurcharan Singh versus State of Haryana (AIR 1972 SC 2661), stating that the absence of injury on the private part of a minor does not affect the definition of rape., In the instant case, the victim is an eight‑year‑old child who was allegedly over‑powered by three older boys. It is unlikely that the victim could offer resistance. No prosecution claim of violent resistance was made, and the absence of external injury cannot be the sole basis to disbelieve the victim’s testimony. The submissions that offences under Section 377 of the Indian Penal Code and Section 10 of the Protection of Children from Sexual Offences Act are not made out are rejected., It is thus held that the order of conviction passed by the lower courts for offences under Section 377 of the Indian Penal Code and Section 10 of the Protection of Children from Sexual Offences Act is valid, legal and in accordance with law and does not suffer any illegality, infirmity or perversity., Regarding the petitioners’ plea for leniency, reference is made to the objects and reasons of the Protection of Children from Sexual Offences Act, as reiterated in Eera versus State (NCT Delhi) (2017) 15 SCC 133. The Act aims to protect children from sexual assault, harassment and exploitation, to safeguard their privacy, confidentiality, best interests and dignity, and to provide child‑friendly procedures., Supreme Court of India, in Nawabuddin versus State of Uttarakhand (Criminal Appeal No. 144 of 2022, decided on 08.02.2022), observed that the POCSO Act was enacted to address offences against children not adequately covered by existing laws, in line with Articles 15 and 39 of the Constitution of India, and the United Nations Convention on the Rights of the Child. The Court emphasized that any act of sexual assault or harassment of children must be dealt with stringently, with no leniency., A perusal of the object of the statute reinforces the need for courts to adopt a strict stance in matters relating to offences against children. Misplaced sympathy would defeat the statutory purpose. Considering that the victim is an eight‑year‑old child whose dignity was violated by brute force, the submission seeking leniency is rejected., Consequently, no illegality, infirmity, perversity or error is found in the judgment of the lower courts convicting the petitioners for offences punishable under Section 377 of the Indian Penal Code and Section 10 of the Protection of Children from Sexual Offences Act. Finding no merit in the petitioners’ submissions, the revision petition is dismissed.
id_1747	0	Advocate for the petitioner: Mr. N. D. Batule. Advocate for the respondent: Mr. D. R. Marked as having father Mr. G. P. Darandale. By this writ petition the petitioner, a father, intends to invoke the constitutional powers of this Court under Article 226 and Article 227 of the Constitution of India to challenge the order passed by the Additional Sessions Judge, Ahmednagar District Court, on 25-04-2019 in Criminal Revision Application No. 236 of 2017, thereby allowing the revision filed by the respondent son and setting aside the order of grant of maintenance passed by the Judicial Magistrate First Class, Shevgaon, Ahmednagar District, in Criminal Miscellaneous Application No. 153 of 2014 dated 06-10-2017, under Section 125 of the Criminal Procedure Code. The Additional Sessions Judge, Ahmednagar dismissed the application filed by the father against the son for maintenance., The relationship between the petitioner and the respondent is not disputed. The petitioner had three daughters and one son, the present respondent. The petitioner’s wife is alive but resides separately with the respondent. The petitioner had no source of income and, due to his old age, was unable to work. Consequently, he filed an application under Section 125 of the Criminal Procedure Code for maintenance. The Magistrate, after considering the evidence, concluded that the petitioner was unable to maintain himself, the respondent had refused to maintain his father, and the son was capable of maintaining the father. Accordingly, the Magistrate granted maintenance of Rupees five thousand (Rs 5,000) per month from the date of the original application., The respondent son challenged the maintenance order in Criminal Revision No. 236 of 2017. The Additional Sessions Judge, Ahmednagar, reversed all the findings of the Magistrate, set aside the maintenance order, and dismissed the original application. This writ petition is filed against that reversal., The hearing was conducted by Advocate Mr. N. D. Batule for the petitioner and Advocate Mr. D. R. Marked for the respondent, with Advocate Mr. G. P. Darandale appearing for the respondent. The respondent’s affidavit‑in‑reply and accompanying documents were perused, followed by the petitioner’s affidavit‑in‑rejoinder stating that his present age is seventy‑five years. The respondent’s surrejoinder indicated that the petitioner owned agricultural land measuring 57 R, which was sold to Sunil Chandrabhan Admane on 09-11-2015 for a consideration of Rupees three lakh (Rs 300,000). However, the respondent claimed that the actual consideration was Rupees seven lakh fifty thousand (Rs 7,50,000), but a lower amount was shown in the sale deed., The submissions reveal that the petitioner is now around seventy‑three to seventy‑five years old and that, according to the respondent’s advocate, no land remains with the petitioner. The source of income for the petitioner is therefore in question. The Magistrate had previously held that the petitioner had no source of income, a finding that was reversed by the revisional Court on the basis of the sale deed dated 09-11-2015. Even if it is accepted that the petitioner possessed a piece of land, it is uncertain whether that land provides sufficient income for his sustenance, or whether his physical ability allows him to cultivate it or have it cultivated by others. The son cannot evade his responsibility to maintain his father by imposing a condition that the petitioner must reside with him like his mother. The petitioner is now unable to maintain himself and is forced to depend on others. The son alleges that differences between the mother and father have led to their separate residence, and that the petitioner seeks money to fulfil his vices. The Court must determine whether the petitioner has a source of income sufficient to support himself and whether the son has a duty to maintain his father., The revisional Court’s finding was based solely on the fact that the petitioner received some amount in the past from the sale of land and that he earns wages of Rupees twenty (Rs 20) per day by doing labour work. Such a finding cannot be accepted in totality. At most, the revisional Court could have reduced the maintenance amount to a sustainable level for both parties, taking into account the son’s income, as the son already supports his own family and the mother. When dealing with petitions under Section 125 of the Criminal Procedure Code, the Courts should not adopt an overly technical approach. The provision is intended for immediate financial support to enable a person to survive. Accordingly, the constitutional powers of this Court should be invoked to correct the technical approach that forces a seventy‑three to seventy‑five‑year‑old petitioner to earn for his own maintenance after the dismissal of the original application under Section 125 of the Criminal Procedure Code., For the foregoing reasons, the following order is passed: (1) The writ petition is partly allowed. (2) The judgment and order passed by the Additional Sessions Judge, Ahmednagar District Court, on 25-04-2019, thereby allowing Criminal Revision No. 236 of 2017, is hereby set aside. (3) The judgment and order dated 06-10-2017 in Criminal Miscellaneous Application No. 153 of 2014, passed by the Judicial Magistrate First Class, Shevgaon, Ahmednagar District, is confirmed in its findings and modified as follows: the application stands partly allowed, and the respondent, Haribhau Jagannath Bedke, is directed to pay maintenance of Rupees three thousand (Rs 3,000) per month to the applicant father, Jagannath Bhaginath Bedke, from the date of this order, i.e., 08-07-2022.
id_1749	0	Criminal Miscellaneous Petition No. 2113 of 2018\nNishikant Dubey (Member of Parliament) Petitioner\nVersus\nState of Jharkhand Opposite Party\nFor the Petitioner: Mister Prashant Pallava, Advocate; Mister Parth Jalan, Advocate\nFor the Respondent State: Mister Pankaj Kumar, Public Prosecutor\nHeard on 16 September 2024. Mister Prashant Pallava, the learned counsel appearing on behalf of the petitioner, and Mister Pankaj Kumar, the learned Public Prosecutor appearing on behalf of the respondent State., This petition has been filed for quashing of the order dated 06 June 2018 passed by the learned Sessions Judge, Godda, in Criminal Revision No. 32 of 2017, whereby the petition was dismissed and the Jharkhand High Court affirmed the order dated 27 July 2017 passed by the learned Judicial Magistrate, First Class, Godda in connection with Poraiyahat Police Station Case No. 162 of 2009, corresponding to General Register No. 894 of 2009, pending in the court of the learned Judicial Magistrate, First Class, Godda., The First Information Report was registered as per the written report of the Assistant Sub‑Inspector dated 04 September 2009. In brief, on 04 September 2009 at about 05:00 p.m. the petitioner held a demonstration and blocked the road near the Primary Health Centre, Poraiyahat. The report alleged that the petitioner, along with his associates, did not allow the complainant's patrol vehicle to pass, thereby causing a jam on both sides of the road. It further alleged that the petitioner, together with other leaders of the Bharatiya Janata Party, ignored the complainant's requests to remove the jam, started giving speeches on the road, and even when the Sub‑Divisional Officer and Sub‑Divisional Police Officer reached the spot and requested the petitioner and his associates to remove the jam, they did not heed the requests and became aggressive. Finally, at the request of the petitioner, the jam was removed at about 11:45 p.m., Mister Prashant Pallava, the learned counsel appearing on behalf of the petitioner, submits that the police submitted a charge sheet against the petitioner and others under sections 143, 186, 283, 290, 291 and 353 of the Indian Penal Code and cognizance was taken by the Jharkhand High Court on 08 June 2013 under those sections. He submits that the First Information Report alleges that the petitioner and others were agitating in Poraiyahat Block, but there is no overt act; the petitioner himself asked the demonstrators to leave the place, as recorded in the First Information Report. He further submits that the ingredients of the aforesaid sections are not made out. Referring to the definition of unlawful assembly in section 141 of the Indian Penal Code, he states that there is no criminal force or obstruction in discharging the duty of any public servant. He notes that the penal provision corresponding to section 141 is section 143. In view of the definition of section 186, there is no voluntary obstruction in discharging the duty of any public servant, and therefore section 186 is not attracted. He also submits that there was no danger and only a peaceful demonstration was going on, so section 283 is not attracted. Sections 290 and 291, which deal with public nuisance and its continuance, are likewise not attracted. Referring to section 353, he contends that there was no criminal force to deter a public servant from discharging his duty, and therefore section 353 is not attracted., He relies on the judgment of Manik Taneja v. State of Karnataka (2015) 7 SCC 423, particularly paragraphs 12 and 14, which state that the intention to cause alarm must be present for an act to fall within the meaning of criminal intimidation. The judgment observes that mere expression of words without the intention to cause alarm is insufficient, and that in the present case there was no intention to cause alarm or obstruction in the discharge of duty. Consequently, section 353 is not attracted., The petitioner further submits that the entire allegations are based on the fact that a demonstration was being held by a Member of Parliament. He argues that a peaceful demonstration is a fundamental right under Article 19 of the Constitution of India. Relying on Anita Thakur v. State of Jammu & Kashmir (2016) 15 SCC 525, he quotes paragraphs 12 and 15, which affirm that the right to peaceful demonstration, speech, assembly and movement are guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(d) of the Constitution. Reasonable restrictions may be imposed by law, but in the absence of any unlawful act, the prosecution is bad in law., He also submits that when action is taken under section 186 of the Indian Penal Code, the procedure prescribed under section 195(1) of the Criminal Procedure Code is mandatory. In the absence of any complaint by a public servant whose order has been violated, the prosecution can be instituted only by filing a complaint petition, not by a First Information Report. He points out that there was no order from any competent authority to disperse the peaceful demonstration, and that the case has been maliciously registered because the petitioner is a member of a political party. He further notes that the only witnesses are police personnel and there is no independent witness, rendering the impugned orders bad in law., Mister Pankaj Kumar, the learned Public Prosecutor appearing on behalf of the respondent State, submits that the orders of the learned Sessions Judge, Godda and the learned Revisional Court of the Jharkhand High Court are well‑reasoned and that a prima facie case is made out. He relies on Radhe Shyam Makharia and Others v. State of Bihar and Others (2010) SCC Online Pat 1717, arguing that section 351 of the Indian Penal Code defines a gesture or preparation likely to cause a person to apprehend the use of criminal force, thereby attracting section 353. He further contends that an assembly of five or more persons likely to cause a disturbance is an unlawful assembly under section 141, and that the petitioner’s presence on the spot brings section 141 into operation. He also argues that calling a bandh violates fundamental rights and, if it infringes the rights of others, the assembly becomes unlawful, relying on Communist Party of India (Marxist) v. Bharat Kumar (1998) 1 SCC 201, paragraphs 3, 12, 17 and 18., The respondent counsel also cites State of Tamil Nadu by Inspector of Police, Vigilance, Anti‑Corruption v. N. Suresh Rajan and Others (2014) 11 SCC 702, paragraphs 29, 31.3 and 32.4, stating that at the stage of considering a discharge application, the court must assume the prosecution materials are true and determine whether a prima facie case exists, not whether the evidence warrants a conviction. He refers to R.S. Nayak v. A.R. Antulay (1986) 2 SCC 716, emphasizing that the test of a prima facie case applies at the charge‑framing stage., In view of the submissions of the learned counsel for both parties, the Jharkhand High Court has examined the materials on record, including the First Information Report and the impugned orders. The First Information Report alleges that the petitioner, a Member of Parliament, was demonstrating along with others and that a police official was prevented from passing through the site of the demonstration. It also records that, on the petitioner’s request, the crowd dispersed. There is no allegation of any overt act against any public servant. While the Deputy Commissioner was stuck in the jam, the report does not state that he ordered the crowd to disperse., The court notes that if a peaceful demonstration is taking place in a democratic country such as India, a sitting Member of Parliament and others cannot be prosecuted on the basis of the First Information Report unless an overt act is established. The protection afforded by Article 19(1)(a) (freedom of speech), Article 19(1)(b) (right to assemble), and Article 19(1)(d) (right to move freely) of the Constitution of India applies. The Supreme Court in Anita Thakur v. State of Jammu & Kashmir (2016) 15 SCC 525 has upheld this protection. Moreover, the Supreme Court in Manik Taneja v. State of Karnataka has held that section 353 of the Indian Penal Code requires an act of threatening or causing injury, which is absent in the present case; therefore, section 353 is not attracted., If action is required under section 186 of the Indian Penal Code, the procedure prescribed under section 195 of the Criminal Procedure Code must be followed. Section 195 creates an exception to the general rule of section 190, mandating that a complaint by the public servant against whom the offence is committed must be filed before a Judicial Magistrate, either orally or in writing. Consequently, it is not within the police’s domain to register a First Information Report for offences under sections 172 to 188 of the Indian Penal Code., For proceeding under section 143 of the Indian Penal Code, the test of section 141 (definition of unlawful assembly) must be satisfied. The common object of the assembly must be inferred from the facts, including membership, weapons used, injuries, and surrounding circumstances. In the present case, there is no use of weapons, no injury, and the First Information Report clearly indicates a peaceful demonstration. The Supreme Court in Tanaji Govind Misal v. State of Maharashtra (1997) 8 SCC 340 held that sudden free‑fights between groups do not automatically constitute an unlawful assembly. Hence, section 141 is not attracted., Section 283 of the Indian Penal Code, which deals with causing danger, obstruction or injury, is not attracted as the First Information Report contains no allegation of danger or injury. Similarly, sections 290 and 291, which pertain to public nuisance and its continuance, are not attracted because the facts do not disclose a public nuisance, and the right to peaceful demonstration is protected under Article 19 of the Constitution., The public representative is entitled to raise a legitimate public issue, and a peaceful demonstration is being conducted. The petitioner is not indulged in any act of violence.
id_1749	1	The judgment relied upon by Mr. Pankaj Kumar, the learned counsel for the State in the case of Radhe Shyam Makharia and Others v. State of Bihar and Others (supra), wherein the Hon'ble Patna High Court has struck down section 353 of the Indian Penal Code as far as that case is concerned, considering that no ingredient of section 353 IPC was made out. Although in that case the allegation was that one of the employees was driven away by the accused, in the case in hand even such act is not present. In light of that, the judgment relied upon by Mr. Pankaj Kumar, the learned counsel for the respondent State in the case of Radhe Shyam Makharia and Others v. State of Bihar and Others (supra) is not helping the respondent State., I am in agreement with the judgment relied upon by Mr. Pankaj Kumar, the learned counsel appearing on behalf of the respondent State in the case of Communist Party of India (Marxist) v. Bharat Kumar (supra). Certainly, if a bandh is called by any political party causing national loss, depriving other facilities, that is deprecated by the courts and was the issue dealt with by the Hon'ble Supreme Court of India in the case of Communist Party of India (Marxist) v. Bharat Kumar (supra). The facts of the present case, however, involve only a peaceful demonstration by a group of people in a particular area. Thus, that judgment also does not help the respondent State., Coming to the principle of discharge, it is well settled that the Court cannot act as a mouth‑piece of the prosecution or as a post office and must seek evidence in order to determine whether the allegations made are grounded so as to pass an order of discharge. In view of this principle, once a petition for discharge is filed before the learned court, the Court has to apply its judicial mind and is not required to act as a post office of the prosecution. That aspect of the matter has also been dealt with by the Hon'ble Supreme Court of India in the case of State of Tamil Nadu by Inspector of Police, Vigilance, Anti‑Corruption (supra), the judgment on which reliance has been placed by the respondent State. The Court is required not to make a roving enquiry for deciding a petition for discharge. Further, the Court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, would not entitle the Court to make a roving enquiry into the pros and cons, and several criteria have been laid down by the Hon'ble Supreme Court of India in the case of M.E. Shivalingamurthy v. C.B.I., (2020) 2 SCC 768., If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution. The Judge has merely to sift the evidence in order to find out whether there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross‑examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. It is open to the accused to explain away the materials giving rise to the grave suspicion. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. The Court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, would not entitle the Court to make a roving inquiry into the pros and cons., Coming to the facts of the present case, without appreciating the evidence, the contents of the First Information Report as well as the legal issues dealt with hereinabove, the petitioner's case falls within the guiding principle of discharge. In view of the facts, reasons and analysis, the Court finds that the petitioner is fit to be discharged in the case in hand., Accordingly, the order dated 06‑06‑2018 passed by the learned Sessions Judge, Godda, in Criminal Revision No. 32 of 2017, whereby the petition was dismissed and the learned court affirmed the order dated 27‑07‑2017 passed by the learned Judicial Magistrate, First Class, Godda in connection with Poraiahat Police Station Case No. 162 of 2009, corresponding to G.R. No. 894 of 2009, pending in the court of the learned Judicial Magistrate, First Class, Godda, are set aside., The petitioner is hereby discharged from the case in connection with Poraiahat Police Station Case No. 162 of 2009, corresponding to G.R. No. 894 of 2009, pending in the court of the learned Judicial Magistrate, First Class, Godda. (Justice Sanjay Kumar Dwivedi).
id_175	0	W.P.(C) No. 12508 of 2021 (S) Dated the 22nd day of June, 2021 S. Manikumar, Chief Justice Seeking to quash Exhibit-P2, order dated 21.05.2021 issued by the Director, Department of Animal Husbandry, Lakshadweep Administration, Lakshadweep, respondent No.4, and Exhibit-P4, minutes of the meeting of Union Territory Level Steering Cum Monitoring Committee and District Task Force on Mid Day Meal held on 27.01.2021, Mister Ajmal Ahmed R., a practising lawyer and an Executive Member of Lakshadweep Bar Association, has filed the instant public interest writ petition for the following reliefs: To call for the entire records leading to Exhibits-P2 and P4, and quash the same by issuing a writ of certiorari or any other writ, order, or direction. To issue a writ of mandamus or any other appropriate writ, order, or direction and thereby command respondents 1 and 3, not to implement any reforms infringing the ethnic culture, heritage, food habit, and affecting the serene and calm atmosphere in the Lakshadweep Islands and also infringing the constitutional right guaranteed under Articles 19 and 300A of the Constitution of India. To issue a writ of mandamus or any other appropriate writ, order, or direction and thereby command the respondents 1 and 3, not to implement the draft regulations named Prevention of Anti Social Activities Act, 2021 (PASA, 2021), Lakshadweep Animal Preservation Regulation, 2021, Lakshadweep Panchayath Regulation, 2021, Lakshadweep Development Authority Regulation, 2021, etc., introduced by the 3rd respondent, without publishing such draft regulations in the local language that is Malayalam and Mahal in local vernacular having circulation in the Lakshadweep for facilitating the islanders to understand the prose and consequences and to submit their objections against implementing such regulations. Grand such other reliefs which are just and necessary in the interest of justice., According to the petitioner, the Union Territory of Lakshadweep has ten islands, mostly inhabited by Scheduled Castes and Scheduled Tribes. He also stated that these people are engaged mostly in Government activities, to eke out their livelihood., On the averments made in the statement of facts and inviting the attention of the High Court to Exhibit-P2, a message through email dated 21.05.2021, issued by the 2nd respondent, Mister Peeyus A. Kottam, learned counsel for the petitioner, submitted that without assigning reasons, the Administrator, Union Territory of Lakshadweep, has directed to close down all the dairy farms run by the Department of Animal Husbandry, including bulls, calves, heifers, and ducks, etc., immediately. The Veterinary Assistant Surgeons of all the Veterinary Units were directed to dispose of the available animals in the presence of Auction Committee Members, by giving wide publicity and observing other formalities as per GFR, including SOP formalities., Learned counsel for the petitioner further submitted that subsequently, Exhibit-P3 letter dated 28.05.2021 has been issued by the Veterinary Assistant Surgeon, Animal Husbandry Complex, Kavaratti, to the Director of Animal Husbandry Department, respondent No.2, requesting to take further necessary action for disposal of animals by public auction., He further added that an auction was notified for the disposal of all kinds of animals under the dairy farms, but it did not take place, for want of bidders., Inviting our attention to Exhibit-P4, minutes of the Union Territory Steering Cum Monitoring Committee Meeting and District Task Force on Mid Day Meal Programme, held on 27.01.2021, learned counsel for the petitioner submitted that from time immemorial, since Mid Day Meal Scheme was introduced, a menu was implemented in all the schools, and as per the guidelines, meat and chicken were served, and that there is no defect or irregularity noticed by the stakeholders. While that be so, there is a change in the menu, and in that context, reference is made to paragraph (4) of Exhibit-P4 minutes dated 27.01.2021, which reads as follows: \Details of new menu suggested by the members as follows: No. Days Food Items 1 Monday Rice, Dhal, fish, green gram, fruits 2 Tuesday Rice, Dhal, Egg, green gram 3 Wednesday Rice, Dhal, green gram, fish, fruits 4 Thursday Rice, Dhal, green gram, Egg / fish 5 Saturday Rice, Dhal, green gram, egg, fruits / Dry fruits 6 Sunday Rice, Dhal, green gram, Egg / Fish Note: Fruits and Non Veg are provided according to the availability of items in the local market. (Action: Director of Education)\, Learned counsel for the petitioner further submitted that contrary to the National Programme of Mid Day Meal in Schools (MDMS) Annual Work Plan and Budget 2020-21 (Exhibit-P7), wherein there is a provision to provide meat and chicken in the menu to the children of the schools of Union Territory of Lakshadweep, suddenly a decision has been taken not to provide chicken and meat to the children. He also submitted that there is no reason as to why the Union Territory of Lakshadweep has taken a different decision, contrary to Exhibit-P7. At this juncture, reference was made to clauses 2.3.1, 2.3.2 and 2.3.3 of the National Programme of Mid Day Meal in Schools (MDMS) scheme, extracted below. \2.3 Details about the weekly menu. 2.3.1 Weekly menu Day wise The weekly menu under MDM scheme is given below. S. No. Days Food Items 1 Monday Rice / Dhal / fish / green gram 2 Tuesday Rice / Dhal / Egg / green gram 3 Wednesday Rice / Dhal / green gram / meat 4 Thursday Rice / Dhal / green gram / chicken 5 Saturday Rice / Dhal / green gram / meat 6 Sunday Rice / Dhal / green gram / Egg Note: Above items are served according to the availability of items in the local market. 2.3.2 Additional Food items provided (fruits / milk / any other items), if any from State/UT resources. Frequency of their serving along with per unit cost per day. Egg, fish, chicken, fruits etc. are served as additional items in Mid Day Meal according to the availability of items in the local market. 2.3.3 Usage of Double Fortified Salt, Double fortified iodized salt is used for the preparation of Mid Day Meal in Schools and direction to use Double fortified salt is issued time to time.\, Learned counsel for the petitioner further submitted that only after assumption of office by the present Administrator, decisions are taken affecting the interest of people, in particular the children., He also submitted that all along, food for the children to be served was prepared and distributed by the stakeholders, within the island, using the manpower of islanders, which is one of the sources of employment. Now, the Administrator, Union Territory of Lakshadweep, has taken a decision to entrust the work relating to preparation of food for Mid Day Meal to a non‑governmental organisation, viz., Akshayapatra having office at Bangalore, which decision, according to the petitioner, is uncalled for., He further submitted that there are no objections from any of the stakeholders, within the Union Territory of Lakshadweep., Per contra, inviting our attention to the reliefs sought for, Mister S. Manu, learned standing counsel for Lakshadweep Administration, raised a preliminary objection as to the maintainability of the writ petition on the ground that the averments made are bereft of details required to be furnished in a public interest litigation., Notwithstanding the objections, Mister S. Manu further submitted that the reliefs 3 and 4, sought for by the petitioner, no longer survive, in the light of the Honorable Division Bench judgments dated 31st May, 2021 in W.P.(C) No.11591 of 2021 and 17th June, 2021 in W.P.(C) No.11519 of 2021 respectively., Mister S. Manu, learned standing counsel further submitted that in the absence of any materials indicating that it was the decision of the Administrator, Union Territory of Lakshadweep, the instant public interest writ petition has been filed., According to the learned standing counsel, there are two dairy farms in the Union Territory of Lakshadweep and there are 69 animals, out of which 47 are only milking. The total quantity of milk milched is 140 litres per day. Maintenance of two farms, with production of very less quantity, is not financially viable. Hence, he submitted that a policy decision was taken to prevent revenue loss and, therefore, such a decision cannot be said to be arbitrary., However, referring to Exhibit-P4 minutes of the Meeting of Union Territory Level Steering Cum Monitoring Committee and District Task Force on Mid Day Meal held on 27.01.2021, learned standing counsel for Lakshadweep Administration submitted that it is a meeting conducted in the presence of nearly 18 members, including the Chairman and Collector of Lakshadweep Administration and others, and that any decision taken by the Committee cannot be attributed to the action of the Administrator, Union Territory of Lakshadweep., He further added that there is no proposal from the Director of Education to allocate the work of preparation and distribution of food by the non‑governmental organisation, viz., Akshayapatra. Even in Exhibit-P4 minutes, it was decided only to have an informal talk with Akshayapatra, having office at Bangalore, regarding the implementation of Mid Day Meal in the Union Territory of Lakshadweep., After hearing the matter at length, for passing interim orders, we posted the matter in the afternoon session., Then, Mister S. Manu, learned standing counsel for Lakshadweep Administration, submitted that Exhibit-P7 National Programme of Mid Day Meal in Schools has no relevance, for the reason that it relates to Annual Work Plan and Budget for the academic year 2020-2021. He also submitted that for children up to Standard VIII, Union Territory of Lakshadweep has made a budgetary allocation and for children from Standards IX to XII, expenditure is derived from the Annual Work Plan and Budget for the academic year 2020-2021., He further submitted that the Union Territory Level Steering Cum Monitoring Committee and District Task Force conduct periodical meetings on the implementation of Mid Day Meals Programme. Such a meeting was conducted on 11.10.2020 and an action taken report regarding the same was also submitted and considered in the meeting held on 27.01.2021. Finally, he submitted that due to the second phase of the COVID-19 pandemic situation and difficulty in procurement of certain items, a decision was taken to change the menu of food items., Heard the learned counsel appearing on both sides and perused the pleadings and material on record., At the outset, we place on record the submission of Mister S. Manu, learned standing counsel for Lakshadweep Administration, that there is no proposal by the Director of School Education regarding preparation and supply of Mid Day Meal by Akshayapatra, Bangalore. Therefore, at this juncture, we are of the view that there is no need to address the said issue., However, the question to be considered is whether the Union Territory Level Steering Cum Monitoring Committee and District Task Force on Mid Day Meal can change the menu of food supplied to the children of the schools in Union Territory of Lakshadweep without adhering to Exhibit-P7 National Programme of Mid Day Meal in Schools. Submission of the learned counsel for the petitioner, that the menu fixed and followed for several years, ever since the Mid Day Meal Scheme was introduced, remained the same, has not been disputed and thus requires to be taken note of., Perusal of Exhibit-P7 National Programme of Mid Day Meal in Schools indicates that food has to be served to the children, including meat, chicken, fish and egg, apart from other items. There cannot be a dispute that the National Programme of Mid Day Meal in Schools, Annual Work Plan and Budget 2020-21 has to be implemented by Union Territory of Lakshadweep and, viewed in that angle, prima facie we are of the view that switching over to a different menu, with the exclusion of chicken and meat, would run contrary to Exhibit-P7, especially when it is constituted with the avowed object of ensuring the physical and mental health of the children., Though Mister S. Manu, learned standing counsel for Lakshadweep Administration, submitted that Exhibit-P7 has been issued for the academic year 2020-2021 and therefore has no relevance for the academic year 2021-22, we are unable to understand how there could be a change in the menu of food items given to the children, prepared taking into account the vital aspect of health factor, and how such a distinction can be drawn merely by saying that it was prepared for a different academic year., Perusal of Exhibit-P4 minutes dated 27.01.2021 also shows that even a physician who attended the meeting had opined that non‑vegetarian foods (fish, chicken, and egg) are essential for the growth of children and that children need a healthy balanced diet containing foods from each group (veg along with non‑veg) so that they get a wide range of nutrients to help them stay healthy. There is no reason why the opinion of the physician, as mentioned above, is not taken note of, but the Committee seemed to have suggested food with the exclusion of meat and chicken. When the physician gave an opinion, appropriate reason should have been assigned in the minutes to differ with the same., Prima facie, we find no reason for the change of food items with the exclusion of meat and chicken. Therefore, we are inclined to pass an interim order directing the respondents to provide food, as done before, by including meat and chicken, to the children of the schools in Lakshadweep., As regards the auction of animals, submission of both learned counsel for the parties is that auction did not take place. Dairy farms have been running quite for some time. Though Mister S. Manu, learned standing counsel for Lakshadweep Administration, submitted that it is not financially viable and the continuation of the farms would result in financial loss to the Lakshadweep Administration, and therefore a policy decision was taken, email message does not indicate any such decision and, in the above‑said circumstances, the farms should be allowed to continue. As regards the allocation of work of preparation and supply of food to the school‑going children of Lakshadweep by Akshayapatra, Bangalore, we have already recorded the submission of Mister S. Manu, learned standing counsel for Lakshadweep Administration that there is no proposal to entrust the work relating to preparation of Mid Day Meals., Giving due consideration to the submissions of learned counsel appearing for the parties and the material on record, we issue the following interim directions: (i) Functioning of the dairy farms should be continued until further orders. (ii) Food, including meat, chicken, fish and egg, and other items, prepared and served to the school‑going children of Lakshadweep as done in the past, should be continued until further orders. To make it clear, the earlier system should continue. (iii) Respondents are directed to file their counter along with supporting documents.
id_1750	0	Miscellaneous Application No. 665/2021 in SMW(C) No. 3/2020 Respondent(s) Date: 27-04-2021. This application was called on for hearing today., For the parties: Applicant Mr. Shivaji M. Jadhav, Advocate; Mr. Manoj K. Mishra, Advocate; Dr. Joseph S. Aristotle, Advocate; Ms. Diksha Rai, Advocate; Mr. Nikhil Jain, Advocate; Mr. Atulesh Kumar, Advocate; Dr. Aman Hingorani, Advocate; Ms. Anzu Varkey, Advocate; Mr. Sachin Sharma, Advocate; Mr. Aljo Joseph, Advocate; Mr. Varinder Kumar Sharma, Advocate; Mr. Abhinav Ramkrishna, Advocate on Record for Union of India; Mr. K. K. Venugopal, Attorney General, India; Mr. Tushar Mehta, Solicitor General; Mr. Rajat Nair, Advocate; Mr. Kanu Agrawal, Advocate; Mr. Siddhant Kohli, Advocate; Ms. Chinmayee Chandra, Advocate; for Respondent No. 4 Mr. Divyakant Lahoti, Advocate on Record in SMWP 3/20; Mr. Parikshit Ahuja, Advocate; Ms. Praveena Bisht, Advocate; Ms. Madhur Jhavar, Advocate; Ms. Vindhya Mehra, Advocate; Mr. Kartik Lahoti, Advocate; Mr. Rahul Maheshwari, Advocate; Mr. Abhimanyu Tewari, Advocate; Ms. Eliza Barr, Advocate., UPON hearing the counsel the Supreme Court of India made the following. The Supreme Court of India is convened through video conferencing., The Supreme Court of India took suo motu cognizance of the situation arising out of the challenge faced by the country on account of the COVID-19 virus and resultant difficulties that could be faced by litigants across the country. Consequently, it was directed by order dated 23 March 2020 that the period of limitation in filing petitions, applications, suits, appeals and all other proceedings, irrespective of the period of limitation prescribed under the general or special laws, shall stand extended with effect from 15 March 2020 till further orders., Thereafter, on 8 March 2021 it was noticed that the country was returning to normalcy and since all the courts and tribunals had started functioning either physically or by virtual mode, the extension of limitation was regulated and brought to an end. The suo motu proceedings were thus disposed of issuing the following directions., In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15 March 2020 till 14 March 2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15 March 2020, if any, shall become available with effect from 15 March 2021., In cases where the limitation would have expired during the period between 15 March 2020 and 14 March 2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15 March 2021. In the event the actual balance period of limitation remaining, with effect from 15 March 2021, is greater than 90 days, that longer period shall apply., The period from 15 March 2020 till 14 March 2021 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws which prescribe periods of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings., The Government of India shall amend the guidelines for containment zones to state that regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions such as time‑bound applications, including for legal purposes, and educational and job‑related requirements., The Supreme Court Advocate on Record Association, through this interlocutory application, highlighted the daily surge in COVID‑19 cases in Delhi and how difficult it has become for the advocates‑on‑record and the litigants to institute cases in the Supreme Court and other courts in Delhi. Consequently, restoration of the order dated 23 March 2020 has been prayed for., We have heard Mr. Shivaji M. Jadhav, President of the Supreme Court Advocate on Record Association, in support of the prayer made in this application. The learned Attorney General and the learned Solicitor General have also given their valuable suggestions. We also take judicial notice of the fact that the steep rise in COVID‑19 cases is not limited to Delhi alone but has engulfed the entire nation., The extraordinary situation caused by the sudden and second outburst of the COVID‑19 virus thus requires extraordinary measures to minimise the hardship of litigants in all the states. We, therefore, restore the order dated 23 March 2020 and, in continuation of the order dated 8 March 2021, direct that the periods of limitation, as prescribed under any general or special laws in respect of all judicial or quasi‑judicial proceedings, whether condonable or not, shall stand extended till further orders., It is further clarified that the period from 14 March 2021 till further orders shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws which prescribe periods of limitation for instituting proceedings, outer limits and termination of proceedings., We have passed this order in exercise of our powers under Article 142 read with Article 141 of the Constitution of India. Hence it shall be a binding order within the meaning of Article 141 on all courts, tribunals and authorities., This order may be brought to the notice of all High Courts for being communicated to all subordinate courts and tribunals within their respective jurisdictions., Issue notice to all the Registrars General of the High Courts, returnable in six weeks. List the miscellaneous application on 19 July 2021.
id_1751	0	Kunal Kamra versus Union of India and Connected Matters. Shephali Kunal Kamra, Indian inhabitant, aged 34 years, residing at C‑33, Kataria Colony, Cadel Road, Mahim, Mumbai 400016. Petitioner versus Union of India, represented by the Secretary, Ministry of Electronics and Information Technology, having its office at Electronics Niketan, 6 CGO Complex, Pragati Vihar Lodhi Road, New Delhi 110003. Respondent Editors Guild of India, having its registered office at B‑62, Gulmohur Park, first floor, New Delhi 110049., Union of India, Ministry of Electronics and Information Technology, having its office at Electronics Niketan, 6 CGO Complex, Pragati Vihar Lodhi Road, New Delhi 110003. Respondents: News Broadcasters and Digital Association, through its Secretary General, Mistress Annie Joseph, aged 67 years, registered office at FF‑42, Omaxe Square, Commercial Centre, Jasola, New Delhi 110025; Bennett, Coleman and Company Limited, through its authorized signatory, Mister Sanjay K. Agarwal, aged 54 years, office at Trade House, Ground Floor, Kamala Mills Compound, Senapati Bapat Marg, Lower Parel West, Mumbai 400013; TV 18 Broadcast Limited, through its authorized signatory, Mister Satyajit Sahoo, aged 39 years, office at Empire Complex, 414, Senapati Bapat Marg, Lower Parel West, Mumbai 400013., In the matter between Editors Guild of India, having its registered office at B‑62, Gulmohur Park, first floor, New Delhi 110049, petitioner versus Union of India, Ministry of Electronics and Information Technology, having its office at Electronics Niketan, 6 CGO Complex, Pragati Vihar Lodhi Road, New Delhi 110003, respondent Association of Indian Magazines, registered office at E‑3 Jhandealan Estate, New Delhi 110055, through its President Srinivasan B., residing at Gemini House, Old No. 58, New No. 36, 3rd Main Road, Gandhinagar, Adyar, Chennai 600020., Union of India, through the Secretary, Ministry of Electronics and Information Technology, having its office at Electronics Niketan, 6 CGO Complex, Lodhi Road, New Delhi 110003, respondent. For the petitioner in WPL/9792/2023: Kunal Kamra, represented by Senior Advocates Mister Navroz Seervai and Mister Darius Khambata, with Arti Raghavan, Vrinda Bhandari, Gayatri Malhotra, Abhinav Sekhri and Tanmay Singh on behalf of Meenaz Kakalia. For the petitioner in WPL/14955/2023: Editors Guild, represented by Mister Shadan Farasat, with Hrishika Jha and Natasha Maheshwari on behalf of Bimal Rajsekhar. For the petitioner in IAL/17704/2023: News Broadcasters and Digital Association, represented by Mister Arvind Datar, Senior Advocate, with Nisha Bhambani, Rahul Unnikrishnan and Bharat Manghani on behalf of Gautam Jain. For the petitioner in WP/7953/2023: Association of Indian Magazines, represented by Mister Gautam Bhatia, with Radhika Roy on behalf of Aditi Saxena. For the Union of India in all three petitions: Solicitor General Mister Tushar Mehta and Additional Solicitor General Mister Devang Vyas, with Rajat Nair, Gaurang Bhushan, Aman Mehta, D. P. Singh, Savita Ganoo, Anush Amin and Vaishnavi. Present for the respondents: Bhuvnesh Kumar, Additional Secretary; Vikram Sahay, Director; and Ritesh Kumar Sahu, Scientist., Supreme Court of India, Justice Neela Gokhale, Judges. Reserved on 29th September 2023 and pronounced on 31st January 2024. Sections of the judgment: Social Media: Users and Intermediaries; The Information Technology Act 2000; A Closer Look at the Impugned Rule; Article 19(1)(a) and Article 19(2): The Fundamental Right to Free Speech; The Chilling Effect and the Marketplace of Ideas; Fake, False or Misleading: the Faux True/False Binary; Contemporary Culture and Events; Can the impugned Rule be saved; Does the impugned Rule survive., These cases represent an issue of significant immediacy in our times. On the one hand, the seemingly limitless reach and expansion of modes of communication over the internet, especially through social media. On the other, digital technology, the very one that powers the internet, now also allows, in a manner and to an extent never known before, the manipulation of information—text, graphics, videography—to generate almost undetectable false information; information often revealed after the event to be fake. This is far beyond mere forgery; it is an entire chunk of information manipulated to produce something wholly false. The voice of a famous politician is replicated with words he never spoke. The face of an actor is superimposed on a body and nobody can tell. This is not parody. This is not a prank. Because these fakes, especially deep fakes where entire videos are conjured up, have such verisimilitude and are capable of instant global propagation via the internet, their influence is profound. The boundaries between truth and falsehood are blurred, and with that comes the blurring of the dividing line between the constitutional guarantee of freedom of speech and expression and state‑imposed limits on it. After all, who is to decide what is fake or false and what is authentic?, The several petitioners and the applicant, different voices from different quarters, are united in their complaint about the Central Government's 2023 amendment to a particular rule under the Information Technology Act. This amendment, they say, has one purpose: to muzzle criticism and questioning of the Central Government as it goes about its business, to stifle dissent from what the Central Government puts out in regard to affairs of the state. Through this amendment, the Central Government has anointed itself as the sole arbiter of what is or is not fake, false or misleading. It alone will decide this, including the entirely ambiguous term misleading; and when it does, any intermediary that allows such information to continue to be hosted on a social media platform immediately risks losing statutory protection. The entire amendment is overbroad, vague and without controlling guidelines. It does not even provide an opportunity for the propounder of any information to defend its correctness, and the government becomes a judge in its own cause, thereby violating principles of natural justice., The impugned rule is ultra vires the governing parent Act, the submission states. It purports to do that which the Act itself cannot. No rule by executive action, made under any rule‑making power, can either go beyond the statute or do what the statute cannot., Therefore, the amendment in question is, the petitioners say, violative of constitutional freedoms; specifically, those guaranteed under Article 19(1)(a) of the Constitution of India, the right to free speech. At least one petitioner has an argument positioned under Article 19(1)(g), saying that the amendment infringes his right to carry on a legitimate profession., For different reasons, the petitioners claim the amendment is arbitrary and ultra vires Article 14. To say that the amendment is limited to the business of the government is, the petitioners say, nothing but smoke and mirrors. Nobody knows where the business of government begins or where it ends. When it comes to the mainstream press and media, as a submission from Mr Seervai and Mr Farasat would have it, the government's business is our business. No government can tell the press to mind its own business, for the function of the press is precisely the opposite: at every stage to mind the government as it goes about whatever it believes is its business., At least one fully government‑controlled entity, the Press Information Bureau, already has a significant social media presence and is active on it. Therefore, there is no need for any other fact‑check unit to be created. The sinister and insidious facet of the impugned amendment is that this new agency has far more than a loud bark: it has fangs and claws, for its unilateral view of what is or is not the truth is accompanied by a requirement of removal of what it has so determined to be fake, false or misleading; and an intermediary can refuse it only on pain of losing statutory protection or safe harbour. Taken together, this has what they describe as a chilling effect on the right to free speech and freedom of the press., There is also a submission that no such amendment could be effected by executive action or delegated legislation. Even a statutory amendment by Parliament was impermissible, for that would violate not just Article 19(1)(a) but also Article 141 of the Constitution., Not so, says Mister Tushar Mehta, Solicitor General for the Union of India. He points to the widely reported perils of allowing fake news and information to proliferate on social media. Doing nothing is not an option. Indeed, it is the very intermediaries who asked for Central Government intervention. What the Central Government has done, he maintains, is walk a tightrope, treading very carefully within the boundaries of Article 19(2), the permissible limitations on Article 19(1)(a). Far from being in the slightest manner arbitrary, the amendment strikes an appropriate balance. It is therefore neither vulnerable on the principle of Wednesbury unreasonableness nor does it violate the doctrine of proportionality. The 2023 amendment is nothing but a minor adjustment to a previous amendment to which no one raised the slightest objection. There is a much wider public and social interest that must be served. There is far too much fakery abounding; someone has to be charged with the responsibility of detecting and identifying it. That task is not one to be lightly undertaken: fakery cannot be met with or set against fakery. It is a responsibility of the highest order. The government is possibly, if not in loco parentis, at least parens patriae, an authority regarded and accepted as the legal protector of citizens otherwise unable to protect themselves. This is not condescension; it is not an assertion that the citizens of this country are irresponsible or weak. It is simply that the power of internet dissemination, social media and technology have blurred the boundaries between truth and falsehood in a manner never before known to mankind. What the amendment seeks to do, therefore, is to establish an agency as objective as possible, in whom trust can be reposed because it is backed by legal authority, to detect, not decide, not arbitrate, but to detect that which is fake, false and misleading. The amendment further circumscribes even this authority by limiting it only to the business of government; not the statements or public assertions of individuals, whether politicians or bureaucrats, but only the business of government. He maintains that what constitutes the business of government is well‑defined and well‑known to all. At no time has the government proposed to arrogate to itself the sole power to detect everything that is or may be fake, false or misleading. Lastly, even if some information about the business of government is found to be fake, false or misleading by the fact‑check unit, the intermediary is only required to take reasonable efforts not to host it. Even if it does not, there is no immediate consequence. It only loses immediate and instant immunity, akin to losing an indemnity. It may then have to face a lawsuit; but in that lawsuit, all its defences are open to it, including inviting a judicial pronouncement that would have the effect of restoring that immunity, of returning the intermediary to safe harbour. In any case, he concludes, this is a question of interpretation of a statute. This court would be well within its remit to limit the ambit of any clause or word if that would save the amendment, for the first effort of any writ court vested with the power to decide on the validity of a statute must be, it is well settled, to find a way to uphold it. Striking it down is the exception, not the rule., I have attempted the preceding summary of the contesting position in the broadest terms to more accurately focus on the issues before us. For, too often, the central issue is occluded by a direct plunge into the deep end of the pool. Does the 2023 amendment violate the right to free speech? Is it unconstitutional as being manifestly arbitrary? Is its framing beyond executive authority? These are the questions we are to decide., We heard Mister Navroz Seervai, Mister Darius Khambata, Mister Arvind Datar, Mister Shadan Farasat and Mister Gautam Bhatia for the petitioners, and Mister Tushar Mehta for the Union of India at great length. Much learning and authority was cited before us, including from American jurisprudence. Mister Mehta was at pains to highlight startling instances of fake information and deep fakes., Having considered all this material and weighed the rival submissions carefully, I am not persuaded that I can accept Mister Mehta's formulation or submissions. In my view, the rule would have to be made absolute. I would strike down the 2023 amendment. My reasons follow., A description of the parties is not usually necessary, except to identify their concerns or the issues they raise. But in this case, the concerns of all the petitioners and the applicant are one. The issue they raise is one. Yet they come to this from disparate quarters. In itself, that lends some colour to the canvas., Kunal Kamra is the lone individual in this group of cases. He is by profession a stand‑up comedian, but that word is not to be read in any disparaging sense. It is what he does. He makes jokes about things and people, highlights and parodies the absurdities in daily life. This is known as observational comedy. His entire oeuvre is rooted in some facet of life, politics, art and more. Of course there is parody and exaggeration; that is the whole point, after all, and he does not pretend to be a replicator, narrator or a conveyor of unvarnished truth or facts. In more colloquial terms, he puts his spin on things. Of him, more than others, there may well be substance to the adage in joco veritas: in jest, there is truth. Conceptually, this is not very different from the print cartoons we see in our daily press each day. How is he affected by this amendment? He says that his work is essential to him and is therefore not only a matter of free speech but also one of his fundamental right to carry on his chosen profession., The Editors Guild and the Association of Indian Magazines are joined by the News Broadcasters and Digital Association. All are coalitions constituted in varying degrees of formality, but joined in their challenge. They say that whether their publications, channels or media are in print, television or purely internet‑based, each relies for greater reach and readership on social media platforms. They all have internet‑based versions or editions which may take different forms. The publications, and individual reporters or journalists who work for them, all have social media accounts. The impugned amendment affects them directly if their work is to be subjected to fact‑checking by an agency entirely controlled by the very government on which they report and about which they publish., The News Broadcasters and Digital Association was a late entrant. We did not formally permit the intervention. Doing so would have disrupted an already tight schedule. But we allowed Mister Arvind Datar for the News Broadcasters to address us on the distinct legal issue he raised., The prayers in Kamra's petition are: (a) that this Honorable Court be pleased to declare that Rules 3(i)(II)(A) and (C) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which amend Rule 3(1)(b)(v) of the Information Technology Rules, 2021, are unconstitutional, being ultra vires Article 14, Article 19(1)(a) and Article 19(1)(g), Sections 79 and Sections 87(2)(z) and (z)(g) of the Information Technology Act, and are void ab initio; (b) that this Honorable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction against the respondent restraining the respondent, its servants, agents, officers and subordinates or any other persons acting by, through or under them from in any manner whatsoever acting upon or implementing or enforcing Rules 3(i)(II)(A) and (C) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (that amend Rule 3(1)(b)(v) of the IT Rules, 2021)., Since the petitioners' submissions ranged over many issues, from the beginning we required that they divide these between themselves. Mister Navroz Seervai and Mister Darius Khambata addressed us on the questions under Article 19(1)(a), the question of discrimination under Article 14 and the case on violation of the rules of natural justice. Mister Shadan Farasat, very capably standing in for Mister Sibal, addressed us on the questions raised under Article 19(1)(g) and the matter of manifest arbitrariness. Mister Gautam Bhatia's submissions centred around the questions of the impugned amendment being ultra vires. Mister Arvind Datar's submissions were related to the illegitimacy of exercising a rule‑making power for such an amendment., Some of the arguments by the petitioners drew heavily on American jurisprudence in relation to the right to free speech. I do not believe it is necessary, or even prudent, to examine those dimensions in any detail. Our jurisprudence in India regarding Part III and especially the remit of Article 19 and Article 14 is now firmly established. My summary of the rival submissions attempted to show what these cases are about. But it is equally important to understand what these cases are not about. We are not tasked with expanding or enlarging (nor shrinking or limiting) the ambit of Articles 19 or 14 per se. We are asked to assess whether the impugned rule can be fairly said to be correctly positioned within the existing jurisprudence. Is it within the guardrails or does it fall outside them?, For instance, Mister Navroz Seervai in particular took us through American law to suggest that the right to free speech includes a known falsehood. That is to say, the fundamental right to free speech includes the right to knowingly lie, but this is subject only to such civil remedies as might otherwise exist. Mister Mehta was considerably exercised by the breadth of this submission and, from his perspective, perhaps understandably so., But I need not venture into that territory. The reason seems plain. It is best explained by the rival first amendments to the two constitutions, the American and the Indian. The First Amendment to the United States Constitution did not limit the right to free speech; it constrained the power of Congress to curtail that right., Our First Amendment did the opposite (and there is a historical and jurisprudential context possibly best left for discussion elsewhere): it expanded the state's powers to curtail fundamental rights. Article 19(2) was substantially amended. Originally it said: (2) Nothing in sub‑clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. The First Amendment substituted Article 19(2) to read: (2) Nothing in sub‑clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub‑clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence., The effect of this amendment need not detain us, for it has fallen for interpretation many times. The general principles governing Article 19(1)(a) and Article 19(2) are firmly established. Indeed, Mister Mehta has no quarrel with the generality of the propositions regarding the scope and ambit of Articles 19(1)(a) and 19(2) at all., Consequently, the scope of the discourse is automatically narrowed. As I said, I must see if the impugned amendment is within the boundaries of Article 19(2)., With that in mind, I proceed to set out the broadest principles that emerge from the discussions before us. (i) Articles 19(1)(a) and 19(1)(g) are expansive. They have no specified limits. The restrictions on those rights come under Articles 19(2) and 19(6). It is Articles 19(2) and 19(6) that are strictly confined, i.e., it is the power of curtailment of fundamental rights that is restricted. (ii) Consequently, any curtailment of a fundamental right guaranteed under Article 19(1)(a) or 19(1)(g) must be demonstrated to fall within the permissible limits of Article 19(2) and Article 19(6). (iii) The curtailment power under Articles 19(2) and 19(6) is not expansive or expandable. The fundamental rights are (for instance, the constant expansion of Article 21). (iv) Any law must survive the test of Article 14, and specifically both parts of it: equality before the law and equal protection of law. Settled jurisprudence tells us that this means there cannot be (i) invidious discrimination; (ii) impermissible classification; (iii) the classification must bear a rational nexus to the object sought to be achieved; (iv) a violation of principles of natural justice; (v) a conferment of unbridled and unchannelled discretionary power; (vi) uneven and arbitrary or pick‑and‑choose dealing. (v) The mere possibility of misuse or abuse of a statute is not a reason to strike it down. The direct potential for wanton abuse may have different implications. (vi) The lack or want of an underlying determining principle constitutes manifest arbitrariness sufficient to invalidate a statute; but that lack of a principle must be manifest, self‑evident, apparent and facial. If there is no determining principle, the statute is manifestly arbitrary., Petitioners' counsel would have it that the impugned amendment fails every single one of these well‑established tests. Mister Mehta maintains the contrary, and it is his submission that every single petition points only to the mere possibility of misuse or abuse., With this, I turn to the impugned amendment and the relevant statutory provisions. Social media is what lawyers call a term of art; it has no definition in statute, and its everyday meaning is accepted. It refers to various internet‑based services such as Facebook, X (the social media service formerly known as Twitter), YouTube and many others. These are digital platforms. At least in theory, they provide no content themselves, unlike the websites of news organisations or broadcasters, which have their bespoke content hosted on their websites. Social media services also have their websites, but the content here is (at least supposedly) entirely user‑driven. Individual users accept the terms of service, sign up, create online social media accounts, and then with their chosen online names (which may have no relation at all to their true identities), share content. Where users get their content is uncontrolled and often unknown. Some of it may be self‑developed (for instance, if Kamra has a video made of one of his performances), but this is not a requirement. Users control access to their content. An entirely open access user account allows everyone to access all content of that user. A user may choose to restrict his or her content to the extent the social media allows it. Nobody blocks all user access; that would be pointless, rather like talking to oneself., The entity that owns, operates and manages the social media service is, in our law, the intermediary. It hosts the service. The service lets users share content. The intermediary does not upload or share content. Intermediaries have in‑house rules of conduct. Transgressions can result in suspension or even cancellation of the user account., But because the content is uploaded to, accessible on and from, and therefore resides on the social media service provider's computer networks and systems, the intermediary assumes limited responsibility for this content; typically, a best‑efforts provision not to permit content that violates its terms of service or law, including intellectual property infringement. As long as an intermediary does this, it enjoys safe harbour: it cannot be held responsible in law for the content itself., Because social media is so easily accessible on any internet‑enabled device it has a reach beyond any form of communication previously known to humankind. All one needs is a connection to the internet. The sheer power this represents can be frightening, and few are more alarmed by it than those whose power over individuals is threatened by its inherent subversiveness. Recent history in the twentieth and twenty‑first century tells us enough about the power of social media., The contestation before us is, therefore, not about social media generally or the technology. It is a battle for control or some level of control over digital content., The Information Technology Act 2000 is the parent statute. We need to look at some of its definitions and the provisions regarding intermediaries., Section 2(w) of the Information Technology Act, added by the 2009 amendment, defines 'intermediary' with respect to any particular electronic record as any person who, on behalf of another person, receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web‑hosting service providers, search engines, online payment sites, online auction sites, online marketplaces and cyber cafés.
id_1751	1	Other definitions in Section 2 of the Information Technology Act are more than somewhat confusing and intertwined. ‘Data’ means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form including computer printouts, magnetic or optical storage media, punched cards, punched tapes or stored internally in the memory of the computer. ‘Electronic record’ means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer‑generated microfiche. ‘Information’ includes data, message, text, images, sound, voice, codes, computer programmes, software and databases or microfilm or computer‑generated microfiche., Intermediaries are the subject of Chapter XII of the Information Technology Act, added by the 2009 amendment. The chapter has a single section, Section 79, which provides exemption from liability of an intermediary in certain cases. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub‑sections (2) and (3), an intermediary shall not be liable for any third‑party information, data, or communication link made available or hosted by it. The exemption applies if the intermediary’s function is limited to providing access to a communication system over which third‑party information is transmitted or temporarily stored, and the intermediary does not initiate the transmission, select the receiver, or select or modify the information contained in the transmission, and observes due diligence while discharging its duties and follows guidelines prescribed by the Central Government. The exemption does not apply if the intermediary has conspired, abetted, aided or induced the unlawful act, or upon receiving actual knowledge, or being notified by the appropriate Government or its agency that information residing on its computer resource is being used to commit an unlawful act, and the intermediary fails to expeditiously remove or disable access to that material without vitiating the evidence., Section 79(1) is the safe harbour provision that provides immunity, subject to Section 79(2) and, in particular, Section 79(2)(c), the duty to observe due diligence. Section 87 confers rule‑making power on the Central Government. In particular, Section 87(1)(z) allows the Central Government to make rules for the procedures and safeguards for blocking access by the public under sub‑section (3) of Section 69A, and Section 87(1)(zg) provides guidelines to be observed by intermediaries under sub‑section (2) of Section 79., Section 69A is the so‑called takedown provision. Where the Central Government or any of its officers specially authorised is satisfied that it is necessary or expedient in the interest of the sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order, or for preventing incitement to the commission of any cognizable offence, it may, subject to the provisions of sub‑section (2) and for reasons recorded in writing, direct any agency of the Government or an intermediary to block for public access any information generated, transmitted, received, stored or hosted in any computer resource. The procedure and safeguards for such blocking shall be prescribed. An intermediary who fails to comply with the direction shall be punishable with imprisonment for a term which may extend to seven years and also be liable to fine., In the celebrated Supreme Court of India decision in Shreya Singhal v Union of India, the Court upheld the validity of Sections 69A and 79 and struck down Section 66A as ultra vires Article 19(1)(a) and Article 19(2) of the Constitution. Section 66A provided for punishment for sending offensive messages through a communication service. It read: ‘Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer resource or a communication device, (a) any information that is grossly offensive or has a menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or mislead the addressee about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.’ The Court noted concepts of statutory overbreadth and vagueness., On 25 February 2021, the Union of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the Intermediary Rules). These were expressly made under Section 87(1)(z) and (zg) of the Information Technology Act., Some definitions from Rule 2(1) are as follows: ‘Digital media’ means digitised content that can be transmitted over the internet or computer networks and includes content received, stored, transmitted, edited or processed by an intermediary or a publisher of news and current affairs content or a publisher of online curated content. ‘Grievance’ includes any complaint, whether regarding any content, any duties of an intermediary or publisher under the Act, or other matters pertaining to the computer resource of an intermediary or publisher. ‘Grievance Officer’ means an officer appointed by the intermediary, the online gaming self‑regulatory body or the publisher for the purposes of these rules. ‘Grievance Appellate Committee’ means a grievance appellate committee constituted under Rule 3A. ‘News and current affairs content’ includes newly received or noteworthy content, including analysis, especially about recent socio‑political, economic or cultural events, made available over the internet or computer networks, and any digital media that is news and current affairs content. ‘Newspaper’ means a periodical of loosely folded sheets usually printed on newsprint and brought out daily or at least once a week, containing information on current events, public news or comments on public news. ‘News aggregator’ means an entity that, performing a significant role in determining the news and current affairs content being made available, makes available to users a computer resource that enables such users to access the aggregated, curated and presented content. ‘Online curated content’ means any curated catalogue of audio‑visual content, other than news and current affairs content, which is owned by, licensed to or contracted to be transmitted by a publisher of online curated content, and made available on demand, including through subscription, over the internet or computer networks, and includes films, audio‑visual programmes, documentaries, television programmes, serials, podcasts and other such content. ‘Publisher’ means a publisher of news and current affairs content or a publisher of online curated content. ‘Publisher of news and current affairs content’ means an online paper, news portal, news aggregator, news agency or any other entity functionally similar, but shall not include newspapers, replica e‑papers of the newspaper or any individual or user who is not transmitting content in the course of systematic business, professional or commercial activity. ‘Publisher of online curated content’ means a publisher who, performing a significant role in determining the online curated content being made available, makes available to users a computer resource that enables such users to access online curated content over the internet or computer networks, and shall not include any individual or user who is not transmitting online curated content in the course of systematic business, professional or commercial activity. ‘Significant social media intermediary’ means a social media intermediary having a number of registered users in India above the threshold notified by the Central Government. ‘Social media intermediary’ means an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services. ‘User’ means any person who accesses or avails any computer resource of an intermediary or a publisher for the purpose of hosting, publishing, sharing, transacting, viewing, displaying, downloading or uploading information and includes other persons jointly participating in using such computer resource. ‘User account’ means the account registration of a user with an intermediary or publisher and includes profiles, accounts, pages, handles and other similar presences by means of which a user is able to access the services offered by the intermediary or publisher.’, Rule 3 deals with due diligence by intermediaries, linking to Section 79, and also provides a grievance redressal mechanism. The opening part of Rule 3(1) states: ‘An intermediary, including a social media intermediary, a significant social media intermediary and an online gaming intermediary, shall observe the following due diligence while discharging its duties, namely:’ The clause (a) requires the intermediary to prominently publish on its website, mobile application or both, in English or any language specified in the Eighth Schedule to the Constitution, the rules and regulations, privacy policy and user agreement for access or usage of its computer resource, and to ensure compliance. Clause (b) obliges the intermediary to inform users, in the same languages, that they must not host, display, upload, modify, publish, transmit, store, update or share any information that (i) belongs to another person without right; (ii) is obscene, pornographic, paedophilic, invasive of another’s privacy, insulting or harassing on the basis of gender, racially or ethnically objectionable, relating to or encouraging money laundering or gambling, or an online game that causes user harm, or promotes enmity between groups on the grounds of religion or caste with intent to incite violence; (iii) is harmful to a child; (iv) infringes any patent, trademark, copyright or other proprietary rights; (v) deceives or misleads the addressee about the origin of the message or knowingly communicates misinformation that is patently false, untrue or misleading, or is identified as fake by a fact‑check unit of the Central Government; (vi) impersonates another person; (vii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, public order, or incites the commission of any cognisable offence, or prevents investigation of any offence, or is insulting to another nation; (viii) contains a software virus or any other computer code designed to interrupt, destroy or limit the functionality of any computer resource; (ix) is an online game that is not verified as permissible; (x) is an advertisement or surrogate advertisement or promotion of an online game that is not permissible, or of any online gaming intermediary offering such a game; (xi) violates any law in force.’, The remaining clauses of Rule 3 require that (c) an intermediary shall periodically inform its users, at least once a year, that non‑compliance with its rules, privacy policy or user agreement may lead to termination of access or removal of non‑compliant information; (d) upon receiving an order from a court of competent jurisdiction of India or a notification by the appropriate Government, the intermediary shall not host, store or publish unlawful information and shall remove or disable access to such information within thirty‑six hours; (e) temporary or transient storage of information automatically by an intermediary as an intrinsic feature of its computer resource, without human or algorithmic editorial control, shall not amount to hosting, storing or publishing; (f) the intermediary shall periodically, at least once a year, inform its users in the language of their choice of any changes to its rules, privacy policy or user agreement, with online gaming intermediaries required to inform users of changes within twenty‑four hours; (g) when information is removed or access disabled on a voluntary basis or based on grievances, the intermediary shall preserve such information and associated records for one hundred and eighty days for investigation purposes, or longer if required by a court or authorised government agency; (h) information collected for user registration shall be retained for one hundred and eighty days after cancellation or withdrawal of registration; (i) the intermediary shall take all reasonable measures to secure its computer resource and information in accordance with the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011; (j) the intermediary shall, as soon as possible and not later than seventy‑two hours (twenty‑four hours for online gaming intermediaries), provide information or assistance to a law‑authorised government agency for verification of identity or for prevention, detection, investigation or prosecution of offences; (k) the intermediary shall not knowingly deploy or modify technical configurations that circumvent any law, though it may develop or use technological means for securing its resource; (l) the intermediary shall report cyber security incidents and share related information with the Indian Computer Emergency Response Team as per the relevant rules; (m) the intermediary shall take reasonable measures to ensure accessibility of its services with due diligence, privacy and transparency; and (n) the intermediary shall respect all rights accorded to citizens under Articles 14, 19 and 21 of the Constitution., Rule 3(2) provides a grievance redressal mechanism. The intermediary shall prominently publish on its website or mobile application the name of the Grievance Officer, his contact details and the mechanism by which a user or victim may make a complaint. The Grievance Officer shall acknowledge the complaint within twenty‑four hours and resolve it within fifteen days, except for complaints seeking removal of information, which shall be acted upon as expeditiously as possible and resolved within seventy‑two hours. The intermediary shall, within twenty‑four hours of receiving a complaint concerning content that exposes a private area of an individual, shows nudity, depicts sexual acts, or is impersonation in electronic form, take all reasonable measures to remove or disable access to such content. The intermediary shall implement a mechanism for receipt of such complaints, enabling the complainant to provide necessary details. Rule 3A establishes a Grievance Appellate Committee. The Central Government shall, by notification, establish one or more Grievance Appellate Committees within three months from the commencement of the Intermediary Guidelines and Digital Media Ethics Code Amendment Rules, 2022. Each Committee shall consist of a chairperson and two whole‑time members appointed by the Central Government, one ex officio and two independent members. Any person aggrieved by a decision of the Grievance Officer or whose grievance is not resolved within the specified period may prefer an appeal to the Grievance Appellate Committee within thirty days of receipt of communication from the Grievance Officer. The Committee shall deal with the appeal expeditiously and endeavour to resolve it finally within thirty calendar days, and may seek assistance from any person having requisite qualification, experience and expertise in the subject matter.
id_1751	2	The Grievance Appellate Committee shall adopt an online dispute resolution mechanism wherein the entire appeal process, from filing of appeal to the decision thereof, shall be conducted through digital mode., We are not concerned with the rest of Rule 3 or with Rules 4A to 4C. Then come Rules 5 and 6 and, importantly, Rule 7., Additional due diligence to be observed by an intermediary in relation to news and current affairs content. In addition to adherence to Rules 3 and 4, as may be applicable, an intermediary shall publish, on an appropriate place on its website, mobile‑based application or both, a clear and concise statement informing publishers of news and current affairs content that, in addition to the common terms of service for all users, such publishers shall furnish the details of their user accounts on the services of such intermediary to the Ministry as may be required under Rule 18. Provided that an intermediary may provide such publishers who have provided information under Rule 18 with a demonstrable and visible mark of verification as being publishers, which shall be visible to all users of the service., This rule relates only to news and current affairs content and shall be administered by the Ministry of Information and Broadcasting., Notification of other intermediary. The Ministry may by order, for reasons to be recorded in writing, require any intermediary which is not a significant social media intermediary to comply with all or any of the obligations mentioned under Rule 4 if the services of that intermediary permit the publication or transmission of information in a manner that may create a material risk of harm to the sovereignty and integrity of India, security of the State, friendly relations with foreign States or public order. The assessment of material risk of harm referred to in sub‑rule (1) shall be made having regard to the nature of services of such intermediary, and if those services permit, (a) interaction between users, notwithstanding whether it is the primary purpose of that intermediary; and (b) the publication or transmission of information to a significant number of other users as would be likely to result in widespread dissemination of such information. An order under this rule may be issued in relation to a specific part of the computer resources of any website, mobile‑based application or both, if such specific part is in the nature of an intermediary. Provided that where such order is issued, an entity may be required to comply with all or any of the obligations mentioned under Rule 4 in relation to the specific part of its computer resource which is in the nature of an intermediary., Non-observance of Rules. Where an intermediary fails to observe these rules, the provisions of sub‑section (1) of Section 79 of the Information Technology Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force, including the provisions of the Act and the Indian Penal Code., This is the flow of the petitioners' arguments: the petitioners are all users. Not one of them is an intermediary. No intermediary is before us. None protests. These users say that, under the constant threat regarding the undefined business of the Central Government, their user content will be unilaterally identified by some government‑controlled Fact Check Unit as fake, false or misleading. The intermediary's due diligence obligation is not merely to host, publish, store, etc.; it covers every possible action that can be taken with digital content. Therefore, the moment this Fact Check Unit, or as we have become accustomed to calling it in the Supreme Court of India, decides that some user‑generated content is fake, false or misleading, the intermediary is bound to take it down. This operates entirely outside the control of Section 69A, the takedown provision. If the intermediary does not do this, Rule 7 operates eo ipso: the intermediary loses safe harbour and is liable to prosecution. No intermediary will ever risk this. Consequently, the 2023 amendment to Rule 3(1)(b)(v) indirectly achieves what cannot be done directly. It switches focus from the user who generates content to the intermediary, the service provider, and makes the service provider liable for user content. This is a chilling effect and a frontal assault on the marketplace of ideas. Rule 3(1)(b)(v) must be read together with the consequences in Rule 7., Mister Mehta disagrees. The controlling portion of Rule 3(1)(b) only speaks of reasonable efforts; there is no compulsion. It is the failure to make a reasonable effort that attracts Rule 7. Regarding the 2023 amendment, he asks how it is that no user complained of a violation of the fundamental right of free speech when a substantially similar provision existed in 2022 with the words “patently false or untrue or misleading,” and why the objection arises now only when a dedicated provision is sought for the business of the Central Government. He argues that it cannot be suggested that fake, false or misleading information is legitimate for the business of the Central Government but not for other matters. The government is merely identifying a specific authority, the Fact Check Unit (which may or may not be the Press Information Bureau), to identify information that pertains to the business of the government and is also fake, false or misleading. Nobody knows the business of the government better than the government itself, and fakery, falsehood and misleading information about the business of the government abound without limit. The business of the government is not merely the concern of a stand‑up comedian or a newspaper. The government encourages debate and dissent and has no problem with parody. However, the business of the government concerns every citizen and, arguably, given the reach of the medium, everyone everywhere. He asks why the government should not be allowed to set the record straight if an independent agency finds information to be fake, false or misleading. In what legal or moral universe should this be permitted? He also submits that there is now a provision for a grievance redressal mechanism; an appeal is provided under Rule 3(3A). Further, Rule 7 only operates when an intermediary fails to observe these Rules, i.e., makes no effort at all., If matters were that simple, the petitioners say, their answers would be overly simplistic, even facile. The government already has a public information agency, the Press Information Bureau, which has considerable heft and standing even on social media. It periodically puts out corrective or clarificatory content on diverse platforms, and users cite the Press Information Bureau. The petitioners argue that the issue begins with the untenable assumption that in every matter, including the business of the government, there is an absolute truth and everything else is fake, false or misleading. In the 2022 amendment, there was scope for debate whether a particular piece of digital data or user content was patently false, untrue or misleading. The 2023 amendment removes all room for debate. Regarding the business of the government—something nobody truly knows and which may change tomorrow—the government has unilaterally arrogated to itself the power to decide an absolutism: absolute truth or absolute falsehood, with no scope before the Fact Check Unit for defending user content. Mister Seervai said it could not get worse than an egregious violation of every concept of natural justice: a user need not even be given a chance to defend himself or herself. The cause is lost., A closer look at the impugned amendment and its interpretation. Rule 3(1)(b)(v) is a lengthy clause with many subordinate clauses. The 2022 amendment is challenged elsewhere and is not in issue here, but the scope of the challenge may be misunderstood, so the precise challenge is examined. Rule 3(1) provides: Due diligence by an intermediary: An intermediary, including a social media intermediary, a significant social media intermediary and an online gaming intermediary, shall observe the following due diligence while discharging its duties, namely: (b) the intermediary shall make reasonable efforts by itself, and cause the users of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that (iii) (v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature, or, in respect of any business of the Central Government, is identified as fake, false or misleading by such Fact Check Unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify., The colour coding follows the earlier extract: blue italics for the 2022 amendment and bold red for the 2023 amendment., Do the words in blue italics, or “knowingly and intentionally communicates” from the 2022 amendment, qualify or colour the 2023 amendment? In the Union’s reply of 6 June 2023, there is an assertion that the impugned Rule is restricted to cases where the Fact Check Unit has, in relation to the business of the Central Government, identified information as fake, false or misleading, but this is knowingly or intentionally communicated. In the Rejoinder, Kamra argues that the impugned Rule is unqualified by intent, knowledge or even degree (“patently”). This assertion is also found in the first notes of arguments on behalf of Kamra., The submissions on behalf of the Central Government suggest otherwise, i.e., that intent is relevant. This is evident from paragraph 34 of the written submissions dated 23 September 2023, which states: According to the Press Information Bureau Fact Check Unit website, fact‑checked content is categorised into three categories: Fake – any factually incorrect news, content, or piece of information/content related to the Central Government of India, spread intentionally or unintentionally, that can deceive or manipulate the audience, with or without the intention to cause potential harm; Misleading – any information/content presented either partially true or with selective presentation or distortion of facts or figures to deceive or mislead the recipient; True – any information/content that is found to be factually correct after investigation., This is interesting because throughout the arguments on behalf of the Union, the emphasis was on “fake” and “false,” and paragraph 34 clearly states that intention is immaterial when determining what is fake. The Union’s assertion that knowledge and intent restrict or control the operation of the impugned Rule is not supported by the dictionary definitions on which it heavily relies, nor by the later assertion in paragraph 125, which states that the impugned rules do not enter the domain of information that does not relate to the business of the Government. Where information relates to the business of the Government, the Government will be in a position to provide the facts. The Fact Check Unit, under the impugned rules, will confirm the information available on the Internet with the evidence on record with the Government and thereafter determine whether such information is factually correct or false/misleading. There is nothing more the Fact Check Unit will do., Therefore, knowledge and intention are outside the operating sphere of the impugned Rule. On a plain reading, it is incorrect to say that knowledge and intent qualify the 2023 amendment. The words “knowingly and intentionally communicates” apply only to the immediately following clause concerning any misinformation or information which is patently false and untrue or misleading in nature. They cannot control or qualify the 2023 addition in bold red, which states that, in respect of any business of the Central Government, information identified as fake, false or misleading by the Fact Check Unit of the Central Government, as specified by the Ministry in a notification published in the Official Gazette, is covered. The disjunctive “or” makes all the difference., This is why the 2023 amendment creates another class of content—and a class of user, the Central Government—namely, information which (i) relates to the business of the Central Government; (ii) is found to be fake, false or misleading; and (iii) is identified by a notified Fact Check Unit. This class separation is directly relevant to at least one facet of the Article 14 challenge before us., Any other interpretation would result in both absurdity and redundancy. On absurdity, the Union’s view that knowledge and intention restrict the impugned Rule would mean that the Fact Check Unit identifies content relating to the business of the Central Government as fake, false or misleading, yet it continues to be hosted, published, displayed or transmitted because such actions are not a knowing or intentional communication by the user. Consequently, no intermediary would ever be required to remove such Fact Check Unit‑identified content, as every user could simply claim the absence of knowledge or intent, making enforcement practically impossible., If “knowingly and intentionally communicates” qualified or restricted the 2023 amendment, the clause would read: (b) the intermediary shall make reasonable efforts by itself, and cause the users of its computer resource not to host any information that (v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which (i) is patently false and untrue or misleading in nature OR (ii), in respect of any business of the Central Government, is identified as fake, false or misleading by such Fact Check Unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify., If the clause is read in that manner, the second portion (the 2023 amendment) becomes wholly unnecessary because it is subsumed in (i). The first part deals with all information in a classless manner; the second portion is merely a subset. Applying the same knowledge and intention requirement to both would contradict the Union’s own arguments that (i) the Supreme Court of India should read in, as a matter of reading down, a disclaimer by the intermediary—no such disclaimer would be necessary if knowledge and intent were essential ingredients; and (ii) the Fact Check Unit is not the final arbiter of truth, and while loss of safe harbour and exposure to prosecution occur, it is a court that will decide truth or falsity based on a submission made on affidavit., It is not appropriate for a court to adopt an interpretation that leads to absurdity or redundancy. Correctly read, the 2023 amendment operates independently of any user knowledge or intention. Accordingly, the provision being assailed is: Rule 3(1) Due diligence by an intermediary: An intermediary, including a social media intermediary, a significant social media intermediary and an online gaming intermediary, shall observe the following due diligence while discharging its duties, namely: (b) the intermediary shall make reasonable efforts by itself, and cause the users of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that (v) in respect of any business of the Central Government, is identified as fake, false or misleading by such Fact Check Unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify., The divergence can be illustrated as follows. The loss of safe harbour and liability to prosecution under Rule 7 is triggered differently depending on whether the content concerns the business of the Central Government. If the content does not relate to the business of the Central Government, there is no loss of safe harbour or liability to prosecution unless knowledge and intent are established. For content that does relate to the business of the Central Government, no question of knowledge or intent arises., The justification is straightforward. For non‑Central Government business‑related content there is no Fact Check Unit and no arbiter of what is patently false, untrue or misleading. The requirement is that the user must be aware that the content is patently false, untrue or misleading and must, with that awareness, knowingly and intentionally publish it. Therefore: (i) For content other than business of the Central Government – knowledge, intention and no Fact Check Unit are required; (ii) For content relating to the business of the Central Government – no knowledge or intention is necessary; awareness of patent falsity, untruth or misleading nature is sufficient., This is markedly different from the other class, content that relates to the business of the Central Government. For this content, there is an arbiter: the Fact Check Unit. It decides what is fake, false or misleading. Once it makes such a determination, if the content continues to be hosted by the intermediary, irrespective of the user’s knowledge or intent, there is an automatic loss of safe harbour and liability to prosecution., Thus, in the first category, the focus is on the user’s awareness of falsity, untruth or misleading nature. In the second category, the focus is on the intermediary permitting the continuance of content that the Fact Check Unit has determined to be fake, false or misleading., Mister Seervai argues that the Affidavit in Reply proceeds from an unsubstantiated assumption through faulty reasoning to an incorrect conclusion. Paragraph 6 of the Affidavit in Reply (page 198) contains several lengthy sub‑paragraphs presenting an affirmative case. The Union of India’s position can be summarized as follows: (a) The medium, though capable of great public good, has the serious potential of creating devastating public mischief, disrupting law and order, public order, national security, and spreading chaos in the country. Mister Seervai contends that this is hyperbole and lacks material support. (b) Paragraphs 6(v) and (vi) form the core of the response. They state: (v) Knowingly and intentionally communicating patently false, untrue and misleading information or content is an anathema to the right to free speech. Knowingly and intentionally passing off patently false, untrue and misleading information or content as true through deceptive means is the biggest abuse of the free speech right and is not constitutionally protected. (vi) The right to know is implicit under Article 19(1)(a) of the Constitution, and the right to accurate and true information is also a fundamental right implicit under Article 19(1)(a). The State has a constitutional obligation to ensure that citizens receive true and correct information and are protected from deceptive, patently false, untrue and misleading information passed off as true., Misinformation leads to misinformed decisions by citizens, which can perpetrate chaos in society. Actions based on falsehoods, patently false, misleading or untrue information have a deleterious effect on society. The Government is alleged to have an obligation to balance the competing interests of freedom of speech on the internet with the fundamental right of citizens to receive accurate information., Paragraph (xv) provides certain examples of false information, which is unhelpful. Anyone can conjure up demonstrably false statements, such as the moon being a ball of cheese or the earth being flat. This illustrates the fallacy of a false premise: an incorrect proposition forming the basis of an argument. If the premise is incorrect, the conclusion may be erroneous, even if logically valid. For example: Premise: If the streets are wet, it has rained recently. Premise: The streets are wet. Conclusion: Therefore, it has rained recently. The argument is logically valid but demonstrably incorrect, as there may be many reasons for wet streets. Simple logic will not reveal the error because it assumes the correctness of each premise. In the present case, the syllogism runs: Premise: Some information on social media is fake, false or misleading. Premise: This particular information is on social media. Conclusion: Therefore, this particular information must be fake, false or misleading. Another logical fallacy, the undistributed middle, may also be at play., Regarding the business of the Central Government, the Affidavit in Reply (paragraph 85) states that there is a significant likelihood of speculation, misconception and spread of incomplete or one‑sided information on social media, with the public acting on it even in the absence of any announcement by the Central Government. In such matters, the relevant facts are authentically and readily available to the Central Government itself, enabling it to check the veracity of any information or content related to its activities. Consequently, given the rapid propagation of false or misleading information on social media and the potential harm to the public, it was felt that the best interest of the public would be served if the veracity of such information is expeditiously checked and publicly disseminated after fact‑checking by a Central Government agency., Paragraph 86 acknowledges that a Fact Check Unit already exists within the Press Information Bureau, which fact‑checks information relating to the Central Government and disseminates it for the benefit of the public. Paragraph 89 categorises fact‑checked content into: Fake – content that can deceive or manipulate the audience, where intention is immaterial; Misleading – content that is selective or partially true; True – content found to be factually correct after investigation., Paragraphs 6(xiii) and (xiv) outline the Union of India’s approach: (xiii) It is most important to note that irrespective of whether the intermediary chooses to have such a system, and even if it discovers through such a system that content knowingly and intentionally displayed, uploaded, published, transmitted, stored or shared on its platform is misleading or patently false and untrue, the intermediary is under no obligation to take it down or block access. The impugned rule merely makes the intermediary primarily responsible to check due diligence as stated, without obligating it to remove or block the content. The only statutory change is the lifting of the legal immunity (safe harbour protection) conferred upon the intermediary under Section 79 of the Information Technology Act in such circumstances.
id_1751	3	In other words, if a Creator or Sender knowingly and intentionally displays, uploads, publishes, transmits, stores or shares any information or content which is misleading or is patently false and untrue, the Recipient who is misled by it or defamed by it or harmed by it in any manner can take recourse to the Grievance redressal mechanism of the intermediary as contemplated in Rule 3(2) of the Information Technology Rules, in the first instance; appeal to the Grievance Appellate Committee(s) as contemplated in Rule 3A of the Information Technology Rules. Failing these two statutory remedies, any Recipient of the information or content who is misled by or defamed by or harmed by the information or content of the Creator or Sender would be free to avail all the remedies available before a court of law by initiating statutory or legal proceedings, and in such circumstances it would be only the Supreme Court of India which will be the final arbiter as to whether the information or content of the Creator or Sender is patently false and untrue or misleading and whether the same was communicated knowingly or intentionally., Thus, the new mechanism merely allows, permits and thereby protects the fundamental right of the Recipient to approach the competent authority and the Supreme Court of India establishing the harm caused to him or her due to some intentionally misleading and patently false or untrue information or content. When the Recipient approaches the competent court, both the intermediary and the Creator or Sender will be able to defend themselves on all available grounds, and it will be only the competent court which will decide whether (a) the information or content so displayed, uploaded, published, transmitted, stored or shared was misleading or patently false and untrue and was communicated knowingly or intentionally; and (b) such information has caused any harm to the Recipient. The only change will be that the intermediary would not be permitted to get away by using the protective shield of Section 79 despite not having exercised due diligence and continuing with such displaying, uploading, publishing, transmitting, storing or sharing of the information or content., It is clear that the Government is not supposed to be the final arbiter or decision maker as to whether any information or content is patently untrue, false or misleading. The obligation under Rule 3(1) of the Information Technology Rules is on the intermediary, at the first instance, to exercise due diligence and to come to a conclusion as to whether any information or content is patently untrue, false or misleading based on the identification of the Fact Check Unit. Failing this, the only final arbiter is the Supreme Court of India, which will adjudicate as to whether any information or content is patently untrue, false or misleading and has been knowingly and intentionally communicated, and the only consequence of non‑compliance with Rule 3 will be adjudication by the competent court without the protective shield of Section 79., I am unable to accept this interpretation of the rule in question. As we have seen, the moment any content pertaining to the business of the Central Government is identified by the Fact Check Unit as fake, false or misleading, the intermediary has no choice: it must not permit it to be hosted, published, etc., either by itself or by any user. If it does not, Rule 7 operates immediately and takes away safe harbour and exposes the intermediary to prosecution. There is little point in saying that it is the court that will ultimately determine it. The point is what does the Rule command?, The correct question is this: if the Fact Check Unit identifies some chunk of data about the business of the Central Government as fake, false or misleading, can the intermediary interpret that content and come to the opposite conclusion that it is not fake, false or misleading? Nothing in the impugned Rule even remotely suggests that the intermediary has any such authority. The disjunctive provision puts Fact Check Unit‑identified content (that which pertains to the business of the Central Government and is Fact Check Unit‑certified as fake, false or misleading) in a separate category. Loss of safe harbour is immediate if this content is not removed. This is what Mr Seervai calls the illusion of choice., This is not merely a classification challenge, but the entirety of the challenge: Article 19(1)(a), Article 19(1)(g), Article 14, and natural justice. Who is the Central Government Fact Check Unit to unilaterally decide truth or falsity about anything? How does it decide? By what process (procedural due process), and on what basis and with what guidelines (uncanalised discretionary power, vagueness, overbreadth) does it do so? If allowed, this is an impermissible expansion of Article 19(2) and Article 19(6) and a wholly unconstitutional curtailment of Articles 19(1)(a) and 19(1)(g); ultra vires Article 14, including for being manifestly arbitrary; and ultra vires Sections 69A and 79 of the Information Technology Act. That, in summary, is the Petitioners’ case on this breakdown of the impugned 2023 amendment., To be sure, this formulation is contested root and branch by Mr Mehta, whose argument is that the amendment is firstly sufficiently narrowly tailored and is very specific and targeted. Secondly, the classification is valid because the two classes are distinct. Thirdly, this classification has a direct and rational nexus to the purpose because the business of the Central Government, something well‑defined, is of disproportionate impact; therefore, anything fake, false or misleading about it has an even more pernicious effect. Fourthly, there is nothing vague about the amendment, for fake and false simply mean that which is not true, and this is being assessed only in the context of the business of the Central Government. Nobody knows better than the Central Government what is or is not true of its own business. Fifthly, the clause is capable of being read down if it must be saved, and knowingly and intentionally can also apply to that content relating to the business of the Central Government which the Fact Check Unit identifies as fake, false or misleading. Sixthly, nobody has ever attempted to shrink any fundamental right, nor to expand the permissible restrictions on the exercise of those fundamental rights. There is, he therefore submits, not the slightest shred of merit in the Petitions., Article 19(1)(a) and Article 19(2) say: 19. Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions or co‑operative societies; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (g) to practise any profession, or to carry on any occupation, trade or business. (2) Nothing in sub‑clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub‑clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence., The emphasis in Article 19(2), Mr Seervai says, and I think correctly, is on the State. This is not to be confused or conflated with the dispensation of the day. The State survives periodic changes in government. The State does not face the electorate; governments do. Throughout the second Affidavit in Reply, he says, and especially in paragraphs 79 to 81, there is precisely such a muddling of these two distinct concepts. Further, what is guaranteed is a right under Article 19(1); and in Article 19(1)(a) it is the right to freedom of speech and expression, not some right to the truth., Mr Seervai says the State in India does have a legitimate regulatory interest in addressing various forms of harmful speech. The speed, anonymity and reach of the internet generally and social media especially drives content with real‑world implications and the potentiality to do serious harm: sexual offences against children and women, torture, animal abuse, hate speech, minority targeting, aggravating social, ethnic and religious prejudices, inciting mob violence against identified communities and groups, even genocide. Their lawyers have cited many examples. But they say this case is not about those egregious harms; it is about one particular class of affairs or matters that relate to the business of the Central Government., Safe harbour, it is argued, is an important adjunct to free speech in the context of the power to cause harm via the internet. It lies at the heart of the exercise of freedom of speech and expression on the internet. It protects not just intermediaries but, through them, their users precisely those in whom the fundamental right is vested. Intermediaries themselves have no direct interest in any particular user content. Axiomatically, they cannot. It follows that if content publication carries a commercial risk (including a possible loss of safe harbour), it is inevitable that risk‑avoidance will prevail., Consequently, Mr Seervai argues, confronting intermediaries with the loss of statutory safe harbour is a form of directing or mandating censorship (or self‑interested censorship) of identified online content relating to the business of the Central Government. An intermediary will do anything to retain safe harbour. It will bend the knee to a government directive regarding content. Its business depends on safe harbour and immunity from prosecution for hosted content. Between safe harbour and users’ rights regarding content, the intermediary faces a Hobson’s choice; and no intermediary is quixotic enough to take up cudgels for free speech. Compromising one particular chunk of content is a small price to pay; better the user content is thrown under the bus than having the bus run over the entire business. The safe‑harbour provision is therefore not just intermediary‑level insulation from liability. It is an explicit recognition of a free speech right. What safe harbour does is to remove the potentiality of indirect censorship., I agree. It cannot be seen otherwise., Mr Seervai invites us to consider the Supreme Court decision in Shreya Singhal v Union of India regarding intermediaries’ safe harbour. The Supreme Court said that Section 79 is an exemption provision, i.e., an exemption from responsibility and liability for user content. Leaving aside the blocking order statutory mechanism under Section 69A of the Information Technology Act, the Supreme Court read down Section 79(3)(b) to mean that an intermediary would lose safe harbour only if it did not remove or disable access to identified material despite receiving actual knowledge of a court order (under Section 69A) directing such a removal or disabling. The Supreme Court reasoned that otherwise it would be very difficult for intermediaries to act on millions of requests. No intermediary could judge the legitimacy of such requests. If the Section 69A court order of any government notification had to hew strictly to and remain within Article 19(2), then Section 79 obviously could not travel further afield., This is also what the United States Court of Appeals for the Fourth Circuit held in Zeran v America Online. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect. If computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement from any party, concerning any message. Each notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgement concerning the information’s defamatory character, and an on‑the‑spot editorial decision whether to risk liability by allowing the continued publication of that information. Although this might be feasible for the traditional print publisher, the sheer number of postings on interactive computer services would create an impossible burden in the Internet context. Because service providers would be subject to liability only for the publication of information, and not for its removal, they would have a natural incentive simply to remove messages upon notification, whether the contents were defamatory or not. Thus, like strict liability, liability upon notice has a chilling effect on the freedom of Internet speech. Notice‑based liability would deter service providers from regulating the dissemination of offensive material over their own services. Any efforts by a service provider to investigate and screen material posted on its service would only lead to notice of potentially defamatory material more frequently and thereby create a stronger basis for liability. Instead of subjecting themselves to further possible lawsuits, service providers would likely eschew any attempts at self‑regulation., Yet, Mr Seervai says, this is precisely what the impugned Rule does. It strips the intermediary of all choice and no amount of statement‑making on affidavit can change the cold reading of a statute when, in regard to the business of the Central Government, the Fact Check Unit identifies some content as fake, false or misleading., Mr Seervai’s next port of call is the Supreme Court decision in Anuradha Bhasin v Union of India & Ors. In the backdrop of the internet shutdown in Jammu & Kashmir, the Supreme Court was squarely confronted with the free speech on the internet issue. Anuradha Bhasin provides a comprehensive review on the interplay between Article 19(1)(a), Article 19(2), the applicability of several doctrines, all in the context of internet‑based free speech. Freedom of speech and expression, the Supreme Court said, includes the right to disseminate information to as wide a section of the population as is possible. The breadth of reach is not a reason to restrict or deny the right. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. This has been long established in the case of print media. Free speech on the internet is an integral part of Article 19(1)(a). Any restriction on it must conform to Article 19(2). The restriction must be reasonable. It is controlled by the parameters or factors set out in Article 19(2). While a restriction may be a prohibition, it cannot be excessive. It must be justified by the censor. Whether or not a restriction is a prohibition is a question of fact. Importantly, a court before which a restriction is challenged must see if the imposed restriction or prohibition was the least intrusive., This introduces the doctrine of proportionality, and, implicit in it the question of testing if the right balance has been struck. It is not permissible to use a sledgehammer to crack a nut; where a paring knife suffices, a battle axe is precluded. Courts applying the balancing approach when deciding questions of fundamental rights is settled jurisprudence: Minerva Mills Ltd & Ors v Union of India; Sanjeev Coke Mfg Co v Bharat Coking Coal Ltd. Thus, the restriction cannot be arbitrary, excessive or beyond what is required: Chintaman Rao v State of Madhya Pradesh; State of Madras v V. G. Row; Mohd Faruk v State of Madhya Pradesh., In paragraphs 74 and 75 of Anuradha Bhasin, there is a reference to the opinions of Justice Sikri and Justice D. Y. Chandrachud in KS Puttaswamy (Aadhaar) v Union of India. Justice Sikri approved the four‑pronged test propounded in Modern Dental College & Research Centre v State of Madhya Pradesh and followed in KS Puttaswamy (Privacy) v Union of India. The test requires: (a) a measure restricting a right must have a legitimate goal; (b) it must be a suitable means of furthering this goal; (c) there must not be any less restrictive but equally effective alternative; and (d) the measure must not have a disproportionate impact on the right‑holder., Paragraph 75 of Anuradha Bhasin cites the opinion of Justice Chandrachud in Puttaswamy (Aadhaar), where the test of proportionality was discussed in the context of privacy violations. The test of proportionality must ensure a rational nexus between the objects and the means adopted to achieve them. A legislative measure is disproportionate in its interference with the fundamental right if a less intrusive measure could have been adopted consistent with the object of the law and if the impact of the encroachment on a fundamental right is disproportionate to the benefit claimed. The proportionality standard is a demand on both procedural and substantive law. Five principles emerged: (1) a law interfering with fundamental rights must be in pursuance of a legitimate State aim; (2) the justification for rights‑infringing measures must be based on a rational connection between those measures, the factual situation and the object sought; (3) the measures must be necessary to achieve the object and must not infringe rights to an extent greater than necessary; (4) restrictions must not only serve legitimate purposes; they must also be necessary to protect them; and (5) the State must provide sufficient safeguards relating to the storing and protection of centrally stored data, including consent, authorization by law, and the individual's right of access and ability to opt out., In paragraph 78 of Anuradha Bhasin, the Supreme Court summarised the requirements of the doctrine of proportionality which must be followed by the authorities before passing any order intending to restrict fundamental rights. First, the possible goal of such a measure must be legitimate. Second, the authorities must assess the existence of any alternative mechanism in furtherance of the goal. The appropriateness of the measure depends on its implication upon fundamental rights and the necessity of the measure. Only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Finally, since the order has serious implications on the fundamental rights of the affected parties, it should be supported by sufficient material and be amenable to judicial review., Mr Seervai maintains that the impugned Rule wholly fails the proportionality test, one that goes back to Chintaman Rao in 1950., Mr Seervai cited more law, particularly the dissent of Justice Oliver Wendell Holmes Jr, joined by Justice Brandeis, in Abrams et al v United States, but a further discussion in that direction is unnecessary. I have already said that we are not to consider whether a knowing falsehood is protected, which Mr Seervai advocates based on United States v Alvarez, 567 US 709 (2012). The Stolen Valor Act criminalised false statements about having a military medal. A 6:3 majority of the United States Supreme Court held the law to be unconstitutional and violative of the right to free speech protected under the First Amendment. There does not appear to be a common rationale: four of the justices concluded that a falsehood, even a knowingly made one, is not in itself sufficient to exclude First Amendment protection. Two other justices held that false speech was entitled to some protection, but the statute was invalid because it could have achieved its objective in a less restrictive manner. The latter proposition is tasked with discovering new frontiers of the right to freedom of speech and expression. We are only to see if the impugned Rule can fairly be said to lie within the narrowly and strictly defined limits of Article 19(2), the reasonable restrictions on the exercise of that fundamental right. For this, the decisions of our Supreme Court, discussed earlier, are surely sufficient. I need not, therefore, consider at great length authority from other jurisdictions. In particular, the First Amendment to the United States Constitution is in critical ways different from the amendment to Article 19(2) of our Constitution. For this reason, a more elaborate discussion of New York Times v Sullivan, on which Mr Seervai also relies, is not really necessary though it is undoubtedly a landmark. New York Times v Sullivan was in the context of libel and defamation. I note my agreement with the general principle that any rule that compels a critic or a commentator (in our case a social media intermediary’s user) to guarantee the truth of all factual assertions, and to do so on pain of libel, leads to a form of self‑interest censorship by the intermediary., If there was any doubt about the general applicability of the underlying principle, it is put to rest by the decision of our Supreme Court in R. Rajgopal v State of Tamil Nadu (in the context of a takedown directive in print media). The Supreme Court referenced Sullivan and then law from the United Kingdom, in particular Derbyshire County Council v Times Newspapers Ltd, where the Sullivan principle was applied, saying that these were no less valid in the United Kingdom. The Rajgopal court held: the question is how far the principles emerging from the United States and English decisions are relevant under our constitutional system. Freedom of the press flows from the freedom of speech and expression guaranteed by Article 19(1)(a). But the right is subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interests of the several matters set out therein. Decency and defamation are two of the grounds mentioned in clause (2). Law of torts providing for damages for invasion of the right to privacy and defamation and Sections 499 and 500 of the Indian Penal Code are the existing laws saved under clause (2). A proper balancing of the freedom of press and said laws consistent with the democratic way of life ordained by the Constitution is called for., We may now consider whether the State or its officials have the authority in law to impose a prior restraint upon publication of material defamatory of the State or of the officials, as the case may be. We think not. No law empowering them to do so is brought to our notice. As observed in New York Times v United States, ...
id_1751	4	[(1971) 403 United States 713 : 29 L Ed 2d 822 (1971)], popularly known as the Pentagon Papers case, any system of prior restraints of freedom of expression comes to the Supreme Court of India bearing a heavy presumption against its constitutional validity and, in such cases, the Government carries a heavy burden of showing justification for the imposition of such a restraint. We must accordingly hold that no prior restraint or prohibition of publication can be imposed by the respondents upon the proposed publication of the alleged autobiography of Auto Shankar by the petitioners. This cannot be done either by the State or by its officials. In other words, neither the Government nor officials who apprehend that they may be defamed have the right to impose a prior restraint upon the publication of the alleged autobiography of Auto Shankar. The remedy of public officials or public figures, if any, will arise only after the publication and will be governed by the principles indicated herein., Two further authorities need to be noticed at this stage. The first is the Supreme Court decision in S. Rangarajan v. P. Jagjivan Ram & Others. The case concerned film certification, or, as it is still called in India, the censor certificate. The Supreme Court cited the famous passage from Sakal Papers (P) Ltd v. Union of India by Justice Mudholkar: “The courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.”, Sakal Papers was applied in Shreya Singhal, relied on and followed in Kaushal Kishor v. State of Uttar Pradesh, and considered in Anuradha Bhasin. In S. Rangarajan, the Supreme Court also said: Alexander Meiklejohn, perhaps the foremost American philosopher of freedom of expression, in his study explains: “When men govern themselves, it is they and no one else who must pass judgment upon unwisdom, unfairness and danger. That means that unwise ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as well as safe, un‑American as well as American. If, on any occasion in the United States, it is allowable to say that the Constitution is a good document, it is equally allowable to say that the Constitution is a bad document. If a public building may be used to say, in time of war, that the war is justified, the same building may be used to say that it is not justified. If it is publicly argued that conscription for armed service is moral and necessary, it may likewise be publicly argued that it is immoral and unnecessary. If it may be said that American political institutions are superior to those of England, Russia or Germany, it may with equal freedom be said that those of England, Russia or Germany are superior to ours. These conflicting views may be expressed, must be expressed, not because they are valid, but because they are relevant. To be afraid of ideas, any idea, is to be unfit for self‑government.”, He argued, if we may say so correctly, that the guarantees of freedom of speech and of the press are measures adopted by the people as the ultimate rulers in order to retain control over the Government, the people’s legislative and executive agents. What Archibald Cox said in his article on the First Amendment is equally relevant here: “Some propositions seem true or false beyond rational debate. Some false and harmful political and religious doctrines gain wide public acceptance. Adolf Hitler’s brutal theory of a master race is a sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove true but because freedom of speech is indivisible. Liberty cannot be denied to some ideas and saved for others. No man, no committee, and surely no Government has the infinite wisdom and disinterestedness to separate what is true from what is debatable, and both from what is false. To license one to impose his truth upon dissenters is to give the same licence to all others who fear losing power. The judgment that the risks of suppression are greater than the harm done by bad ideas rests upon faith in the ultimate good sense and decency of free people.”, The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may be briefly touched upon here. There must be a compromise between the interest of freedom of expression and special interests, but we cannot simply balance the two interests as if they are of equal weight. Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far‑fetched; it should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably linked with the contemplated action, like the equivalent of a spark in a power keg., Closer to home, a learned single Judge of the Supreme Court of India (A. P. Shah, as he then was), considering a case of refusal to telecast a film on Doordarshan, said in Anand Patwardhan v. Union of India: “John Stuart Mill, a great thinker of the 19th century, in his famous treatise Utilitarianism, Liberty and Representative Government, neatly explained the importance of free speech and expression in these words: ‘But the peculiar evil of silencing the expression of an opinion is that it robs the human race—posterity as well as the existing generation—those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.’ Indeed, freedom of speech and expression has now been accepted as a natural right acquired at birth and is therefore regarded as a basic human right. The words ‘freedom of speech and expression’ appearing in Article 19(1)(a) of the Constitution have been construed by the Supreme Court to include the freedom to circulate one’s views by word of mouth, in writing, or through audio‑visual instrumentalities., Thus every citizen of this free country has the right to air his or her views through the printing and/or electronic media, subject to permissible restrictions imposed under Article 19(2) of the Constitution. The question arising in this petition is whether the refusal of Doordarshan to telecast In Memory of Friends, a documentary produced by the petitioner, violates his fundamental right of freedom of speech and expression, and it must be considered in the light of these established principles. Regarding the objections raised by the respondents, one objection is that the documentary tries to propagate a left‑ist viewpoint that only a class consciousness can prevent religious and communal massacre. One may not agree with the view of the filmmaker. But in a democracy it is not necessary that everyone should sing the same song. Freedom of expression is the rule and is generally taken for granted. The filmmaker may project his own message which others may not approve of, but he has a right to think out and put counter‑appeals to reason. It is part of a democratic give‑and‑take to which one could not complain., The State cannot prevent open discussion and open expression, however hateful to its policies. Everyone has a fundamental right to form his own opinion on any issue or general concern and may express it by any legitimate means. In this regard, the following observations of Alexander Meiklejohn, an American philosopher of freedom of expression, are worth noting: “This approach from our own jurisprudence sits uneasily with the frequent assertions that the government welcomes debate, dissent, satire, and yet maintains that the impugned rule is necessary.”, Firstly, it is not about any particular government. It is about what the State, perennial as the grass, can or cannot do. What a particular government or dispensation wants, and what the State can permissibly do, may be very different things. Secondly, on my interpretation of the rule in question, the requirement that an intermediary must block or take down any content relating to the business of the Central Government that the Fact‑Checking Unit has determined to be fake, false or misleading, or, in default, immediately lose safe harbour for precisely this targeted content, leaves no scope for any debate, dissent or satire before the material is excised from the public domain. Pointing to after‑the‑event grievance redressal mechanisms does not fulfil the purpose. Thirdly, Article 19(1)(a), the right to free speech and expression, when read with Article 19(2), clearly means that the government has an expansive right to counter any content, but an extremely restricted entitlement to abridge the fundamental right., The chilling effect and the marketplace of ideas are far too easily bandied about. I narrow their implications for these cases. The chilling effect speaks to censorship, but not direct censorship. It connotes a concatenation of factors that inevitably lead to self‑censorship; this self‑censorship may be direct (by the author) or indirect (by another who controls the author’s content). Knowing that some content will be proscribed and, if published, will entail significant adverse consequences, the author refrains, resulting in self‑censorship. In parallel, where the author depends on another agency that bears the burden of content control, the knowledge that the agency will certainly—or almost certainly—act to forbid that content prevents the author from exercising the right to free speech., The marketplace of ideas is almost literally that. Ideas left unexpressed are not the cause for concern; it is the expression of ideas of varying kinds, degrees and perspectives that the right to free speech and expression protects and guarantees. The marketplace is not to be confused with commercialization; it is a forum for exchange where ideas are traded, debated, and commented upon. The term denotes space and opportunity for discussion, dissent and debate. Consequently, there is no universal or accepted version; perceptions matter, opinions count, and dissent, disagreement and debate are essential—without them there is no right to freedom of speech and expression. The marketplace of ideas is not a forum for agreement; it is a forum for disagreement. It is not about the comfort of conformity or the tranquility of the familiar. It is a place for discomfort, unfamiliarity, and it demands a civil discourse, possibly with an agreement to disagree. As Justice D. Y. Chandrachud, as he then was, once remarked, “the discourse of law is a discourse of civility.” Nothing is achieved by name‑calling and threats., I begin this part of the discussion with a telling extract from the remarkable 2011 decision of S. Muralidhar, J. (as he then was) in Srishti School of Art, Design & Technology v. Chairperson, Central Board of Film Certification. The decision is an impassioned defence of free speech. Justice Muralidhar said: “The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and a more perfect polity, and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” (Justice Harlan in Cohen v. California, 403 United States 15 (1971)). I disapprove of what you say, but I will defend to death your right to say it., The petitioner, who has produced the documentary film Had Anhad? (Bounded‑Boundless), challenges in this petition an order dated 28 May 2010 passed by the Film Certification Appellate Tribunal (FCAT) upholding three of the four excisions ordered by the Central Board of Film Certification (CBFC) by its order dated 5 November 2009 while granting the film a V/U Certificate. The freedom of speech and expression of citizens under Article 19(1)(a) of the Constitution may not be absolute, but the restrictions under Article 19(2) must be narrowly construed. As explained in Life Insurance Corporation of India v. Prof. Manubhai D. Shah (1992 Supreme Court of India 3 SCC 637), the burden is on the State to show that the benefit from restricting the freedom is far greater than the perceived harm resulting from the speech or depiction. The State must ensure that the restrictions do not rule out legitimate speech and that the benefit to the protected interest outweighs the harm to the freedom of expression. Justice Harlan in Cohen v. California (1971 Supreme Court of the United States 403 United States 15) pertinently asked: “Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us?”, In Israel Film Studios Ltd. v. Gerry (1962 Supreme Court of Israel 15 2407 at 2416), the Israel Supreme Court examined the justification of censoring a portion of a short film showing an eviction from the Somail suburb of Tel Aviv. The reason for disallowing the portion, among other reasons, was that it did not present the problem in its entirety. The Supreme Court of Israel reversed the decision of the censors. Justice Landau, speaking for the Court, pointed out: “A sovereign arrogating for itself the power to determine what the citizen should know will ultimately determine what the citizen should think; nothing constitutes a greater contradiction of true democracy, which is not directed from above.”, This thought is echoed in an essay titled “Sense and Censoribility” by legal scholar Lawrence Liang. He points out that the law as interpreted by the Supreme Court teaches how one should see a film and creates a legal theory of spectatorship that forms a world of reception theory, which plays an important pedagogic role; it is not just about prohibiting a particular view but also about cultivating a particular view. Recognising the need to acknowledge the rights of both the citizen viewer and the speaking subject, he says: the task of censorship is to teach the viewer to become a citizen through particular spectatorial practices, and the imagined gaze of the citizen viewer determines the specific content of censorship laws., The scenes and visuals that constitute the third excision are, in one sense, a recalling of the memory of a historical event. The recall may be imperfect, may contradict the collective memory, and may revive tensions over the events being recalled; yet, that by itself does not invite censorial intervention to obliterate the scenes. In Laor v. Film and Plays Censorship Board (1987 Supreme Court of Israel 41 421), the censor Board refused to permit the staging of a play titled Ephraim Returns to the Army, which described events in the occupied territories under Israeli military rule on the ground that it presented a distorted and false image of the military administration. It feared an outburst of negative feelings against the State and severe offense to the feelings of the Jewish public by the implied and explicit comparison between the Israeli regime and the Nazi occupation. Justice Barak, speaking for the Court, rejected the ban, stating: “It is none of the Board’s business whether the play reflects reality or distorts it.” He observed that the passage in the play may offend the feelings of the Jewish public and is certainly liable to offend those with personal experience of the Holocaust. He recounted his own childhood during the Holocaust and expressed that the parallel between a German soldier arresting a child and an Israeli soldier arresting an Arab youngster breaks his heart. Nonetheless, we live in a democratic state, in which this heartbreak is the very heart of democracy., Later, in Bakri v. Film Censorship Board (2003 Supreme Court of Israel 58 249), this aspect was revisited. The documentary film Jenin, Jenin, which presented the Palestinian narrative of the battle in the Jenin refugee camp in April 2002 during Operation Defensive Wall, was censored. The filmmaker declared at the outset that he had made no attempt to present the Israeli position. The censor Board banned the film, claiming it was distorted and offensive to the public’s feelings. The Israel Supreme Court reversed the Board’s decision. Justice Procaccia, speaking for the Court, observed that the messages of Jenin, Jenin are indeed offensive to wide sections of the public in Israel, yet the film could not be banned because, although the injury is deep and real, it does not reach the high threshold required to rescind freedom of speech. The offense is not radically shocking to the point of posing a concrete threat to public order that might justify restricting freedom of expression and creativity., Commenting on this decision, legal scholar Daphne Barak‑Erez points out that the Court should perhaps acknowledge the offense to feelings caused by such films but still refuse to uphold the censor Board’s decision because of the enormous danger of turning the state into the custodian of truth., I will return to the question of truth momentarily. The discussion so far highlights the importance of divergence in perception, perspective and expression. This relates both to the marketplace of ideas, an essential component of the right to free speech and expression (for without such a marketplace the right is a nothingness), and to the pernicious chilling effect. To put this in perspective, we turn to the five‑judge Supreme Court of India decision in Kaushal Kishor v. State of Uttar Pradesh & Others. The learned Attorney‑General for India submitted that, as a matter of constitutional principle, any addition, alteration or change in the norms or criteria for imposing restrictions on any fundamental right must come through a legislative process. The restrictions already enumerated in clauses (2) and (6) of Article 19 are exhaustive., The Supreme Court of India, by majority, held that the first question before it was two‑fold. The first was whether the reasonable restrictions under Article 19(2) on the right to free speech could be said to be exhaustive. The second, possibly following from the first, was whether additional restrictions on the right to free speech can be imposed on grounds not found in Article 19(2) by invoking other fundamental rights. The Court was not concerned here with the second part. The Court said: “The restrictions under clause (2) of Article 19 are comprehensive enough to cover all possible attacks on the individual, groups or classes of people, society, the court, the country and the State. This is why the Supreme Court of India repeatedly holds that any restriction which does not fall within the four corners of Article 19(2) will be unconstitutional.”, The Court emphasized that the Executive cannot transgress its limits by imposing an additional restriction in the form of an executive or departmental instruction, as held in Bijoe Emmanuel v. State of Kerala (1986 Supreme Court of India 3 SCC 615). The Court made it clear that reasonable restrictions must be imposed through a law having statutory force and not through a mere executive or departmental instruction. The restraint on the Executive from a back‑door intrusion applies equally to courts. While courts may be entitled to interpret the law in a manner that gives expansive connotations to rights, they cannot impose additional restrictions by using tools of interpretation., The Supreme Court of India, as articulated by Justice B. Sudarshan Reddy in Ram Jethmalani v. Union of India (2011 Supreme Court of India 8 SCC 1), noted: “An argument can be made that this Court can make exceptions under the peculiar circumstances of a case wherein the State has acknowledged that it has not acted with the requisite speed and vigor in dealing with large volumes of suspected unaccounted‑for monies of certain individuals. There is an inherent danger in making exceptions to fundamental principles and rights on the fly. Those exceptions, bit by bit, would then eviscerate the content of the main right itself. Undesirable lapses in upholding fundamental rights by the legislature or the executive can be rectified by the assertion of constitutional principles by this Court. However, a decision by this Court that an exception could be carved out remains permanently part of judicial canon and becomes part of constitutional interpretation itself. It can be used in the future in a manner that may far exceed what this Court intended or what the constitutional text and values can bear. The principle is that exceptions cannot be carved out willy‑nilly and without forethought as to the damage they may cause.”, One of the chief dangers of making exceptions to principles that have become part of constitutional law through aeons of human experience is that the logic and ease of seeing exceptions become entrenched in the constitutional order. Such logic would lead to seeking exceptions from the protective walls of all fundamental rights on grounds of expediency and claims that there are no solutions to societal problems without the evisceration of fundamental rights. That same logic could then be used by the State to demand exceptions to a slew of other fundamental rights, leading to massive violations of citizens’ human rights., Again, in Ministry of Information & Broadcasting, Union of India v. Cricket Association of Bengal (1995 Supreme Court of India 2 SCC 161), the Court cautioned that restrictions on free speech can be imposed only on the basis of Article 19(2). In Ramlila Maidan Incident, In re (2012 Supreme Court of India 5 SCC 1), the Court developed a three‑pronged test: (i) the restriction can be imposed only by or under the authority of law and not by exercise of executive power; (ii) such restriction must be reasonable; and (iii) the restriction must be related to the purposes mentioned in clause (2) of Article 19., Vagueness and overbreadth. This brings me back to certain other portions of the encyclopaedic decision in Shreya Singhal, specifically the question of vagueness. Vagueness and overbreadth are both linked to the concept of the chilling effect. Justice Rohinton Fali Nariman, speaking for the Court, considered these aspects. In paragraph 55, he held that it is settled law that where no reasonable standards are prescribed to define guilt in a provision that creates an offence, and absent clear guidance, such a provision would be struck down as arbitrary and unreasonable. Shreya Singhal, paragraph 63 (citing Reno v. American Civil Liberties Union, 521 United States 844 (1997)); less restrictive alternatives equally effective in achieving a legitimate purpose are to be preferred (Shreya Singhal, paragraph 65); the doctrine of vagueness is not alien to our jurisprudence (Shreya Singhal, paragraph 68, citing K. A. Abbas v. Union of India; Harakchand Ratanchand Banthia v. Union of India; State of Madhya Pradesh v. Baldeo Prasad; and in paragraph 70, citing A. K. Roy v. Union of India)., In the context of a fundamental right, vagueness, overbreadth, and the impossibility of interpretation to provide the necessary statutory leanness and precision are all reasons to invalidate legislation. Regarding the chilling effect and overbreadth, Shreya Singhal says in paragraph 87: “Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which capture a very large amount of protected and innocent speech. A person may discuss or even advocate, by means of writing disseminated over the internet, information that may be a view or point of view pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections of society. It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. A few examples will suffice.”
id_1751	5	A certain section of a particular community may be grossly offended or annoyed by communications over the internet that promote liberal views such as the emancipation of women, the abolition of the caste system, or whether members of a non‑proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each of these things may be grossly offensive, annoying, inconvenient, or insulting. I leave aside the question of the possibility of abuse of a statute, for it seems to me settled that the mere possibility that a statute might be abused is no reason to invalidate it; see paragraphs 95 and 96 of Shreya Singhal itself. The passages in Shreya Singhal citing considerable earlier learning clearly suggest that where wanton abuse is inevitable, there may be sufficient reason to hold the statute unconstitutional, and an assurance that it will not be abused is no answer. No such submission is canvassed, at least not in these terms before us, and therefore I will not enlarge the discussion in that direction., Section 66‑A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the section, and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total., Limiting the impugned Rule to the so‑called business of the Central Government does not survive the Shreya Singhal test. I will return to a consideration of the submission on overbreadth and vagueness shortly, but I must first detour into this aspect of truth and falsity., The need for precision in definition is not just desirable, submits Mister Datar, and I think with considerable justification. It is an essential requirement, especially when the attempt tranches upon the exercise of any fundamental right. In Government of Tamil Nadu and Others v R. Thamaraiselvam and Others, the Supreme Court of India held that vague definitions and classification and conferment of unguided power (in that case by government order, not legislation) is sufficient for an invalidation., In the context of vagueness and overbreadth, there are three distinct components in the impugned Rule that demand greater scrutiny: the sweep of the expression fake, false or misleading; the meaning of the Business of the Central Government (discussed later when considering the submissions under Article 14); and the identification as fake, false or misleading by the Fact Checking Unit (discussed later while considering the submissions under Article 14)., Not one of these three words lends itself to any acceptable form of precision. The affidavit in rejoinder deals with this extensively from page 574 onwards, but even independently of that, there is an unacceptable level of subjectivity injected into these. Nobody knows on what basis the Fact Checking Unit will make this determination. Is it to be on some objective standard and material? Is that publicly accessible? Is the reference factual material itself tested for truth or accuracy? Some empirical or scientific fact may be taken as true—for example, the distance of the Earth from the Sun. But in the real world, especially in law, few things are immutably black or white, true or false. Lawyers and judges typically inhabit a world of well over fifty shades of grey., This is crucial. For if fake, false or misleading does not lend itself to precision and accuracy, then there is the issue of vagueness and overbreadth., I consider this from three perspectives. First, I start with the Evidence Act, 1872. Then I look at two texts that grapple with the concepts of truth and proof. Finally, I look at instances from popular culture and contemporary writing., The Evidence Act defines fact in Section 3 as follows: Fact means and includes (1) any thing, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious. Illustrations: (a) that there are certain objects arranged in a certain order in a certain place is a fact; (b) that a man heard or saw something is a fact; (c) that a man said certain words is a fact; (d) that a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact; (e) that a man has a certain reputation is a fact., This highlights the problem: with facts we are concerned with sensory perception and conscious mental conditions. Therefore, what a person said may be a fact, whether those words are true or false is another matter. Similarly, what a person heard, the actual sound or words, is a fact; whether that which was heard was true is separate., The primary function of courts operating under the Evidence Act is the matter of proof. Proof is always of a fact. The Evidence Act tells us that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent person ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non‑existence so probable that a prudent person ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said not to be proved when it is neither proved nor disproved., Belief, probability, prudence, supposition—everything in this definition in one of our statutes, something almost certainly overlooked in framing the impugned Rule, points to the sheer impossibility of an absolute determinism in all things, even those relating to the business of the Central Government. A fact may simply be not proved, meaning that there is just not enough for even a belief, a probability, a supposition., The test is always that of a prudent person: a reasonable reader, as the Supreme Court of India said in Ramesh Chotalal Dalal v Union of India and Others., On this perennial dilemma, it is worth considering extracts from John D. Caputo of Syracuse University and Villanova University. In his work Truth: The Search for Wisdom in the Postmodern Age, he writes that contemporary life, marked by modern transportation systems and modern information systems, is much more pluralistic than life in the past. This has resulted in ideas about open‑ended rainbow cultures rather than monochromatic pure ones, but it has also created social strife arising from an influx of peoples into wealthier nations and the exploitation of poorer countries by wealthier ones. Kant, to his credit, saw some of this coming and addressed it under the name of cosmopolitanism, treating visitors as citizens of the cosmos., Contemporary life has created problems for philosophers, as pluralism threatens a vertigo when it comes to truth, called postmodernism. Postmodernists often say that truth depends on who and where you are, leading to relativism—the view that there is no single truth, only competing truths depending on language, culture, gender, religion, needs, tastes, etc. Critics of postmodernism fear relativism, scepticism, nihilism, and anarchy. Nietzsche said truth was an ensemble of fictions and metaphors that we had forgotten are fictions and metaphors. Richard Rorty, an American pragmatist, said truth was merely a compliment we pay ourselves when things are going well with our beliefs., The problem we have is what universal means in a postmodern world and what truth means when everyone’s truth is entitled to its own fifteen minutes in the sun. Relativism is the main threat to truth posed by postmodernists, just as absolutism is the main threat posed by modernism. Absolutism is a kind of intellectual blackmail, while relativism, mistakenly seen as the postmodern theory of truth, is a failure to produce a theory. Relativism renders us unable to say that anything is wrong, whereas absolutism confuses us with God. Unbridled relativism means anything could be taken to be true, leading to chaos., Lessing offers sage advice in reducing expectations and trimming sails to the winds of space and time. He said that if God held out truth in his right hand and the search for truth in his left hand and asked him to choose, he would select the left hand, on the grounds that absolute truth itself was for God alone, while his own business was the search for truth. Hermeneutics is a more general theory that every truth is a function of interpretation, and the need for interpretation is a function of being situated in a particular time and place, with certain inherited presuppositions. This is highlighted by modern transportation and information systems that constantly barrage us with multiple perspectives. Whatever truth means in our postmodern situation is a function of hermeneutics, of learning to adjudicate, and of dealing with difference judiciously. Hermeneutics is based on the idea that there are truths big and small, some crucially important, others not so much, all depending on our hermeneutic situation., It is difficult to argue with this theory, but it highlights the problem at the heart of the impugned Rule: an absolute determination of what is fake, false or misleading may not be possible in all circumstances, and the sole arbiter of that, at least with respect to the business of the Central Government, is the government itself., It cannot be suggested that nothing is capable of absolute determination as truth. Two plus two always equals four, and the River Thames does run through London. This lies at one end of the spectrum, as Mister Bhatia points out. At the other end are statements that are neither true nor false: expressions of opinions, hopes, desires. The impugned Rule is concerned with content that lies between these polarities: subjective assessments even on objective data, or questioning of data, especially if that data comes from the government. It is possible, for instance, to query official government data on any metric—economy, poverty, health—or to question contemporary events such as demonetisation or a border skirmish., Frederick Schauer, the David and Mary Harrison Distinguished Professor of Law at the University of Virginia, a fellow of the British Academy and the American Academy of Arts and Sciences, and former Frank Stanton Professor of the First Amendment at Harvard University, has written extensively on free speech, stereotypes and the law. In his recent work Proof: Uses of Evidence in Law, Politics and Everything Else, he poses difficult questions: evidence is not only about trials and law; it is about science, history, psychology, and human rationality. What do we know, and how do we know it? Frequently, commentators conflate the lack of evidence with falsity, taking the absence of evidence as equivalent to evidence that a statement is false. This looseness needs inspection. Public discourse often couples the idea of evidence with numerous qualifying adjectives—hard evidence, direct evidence, concrete evidence, conclusive proof—misleadingly suggesting that the lack of overwhelming proof beyond a reasonable doubt is sufficient to reject a conclusion for which there is at least some evidence., Officials and others sometimes display a dangerous lack of respect for the evidentiary conclusions of genuine experts, while at other times professionals, experts and expert institutions are given authority that extends beyond the scope of their expertise. Controversies about facts are important because they provide foundations for personal choice and public policy. Evidence is the prerequisite for judgments of truth and falsity. Motivated reasoning, a large part of the evidentiary terrain, shows how people perceive facts based on normative preferences. Evidence matters only to those for whom truth matters, and it is not clear that truth matters to everyone in the same contexts or to the same degree. Preferences for truth compete with preferences for happiness, affection, ambition, wealth, health, and other emotions. More truth or knowledge is not equally important for all people or institutions at all times, and evidence is not equally important for all., We live in an age of experts, but also an age of dueling experts, where conclusions of experts are marshaled on multiple sides, and the notion of expert opinion as a collective consensus is elusive. Several themes run through the discussion: probabilities matter; evidence comes in degrees; weak evidence is still evidence; and the adequacy of evidence depends on what we intend to do with it and the consequences of the evidence being sufficient or insufficient., In Deepfakes and the epistemic apocalypse, philosopher Joshua Habgood‑Coote of the University of Leeds examines deepfakes and the narrative that they will precipitate an unprecedented epistemic apocalypse. The paper argues three claims: (1) once we recognise the role of social norms in the epistemology of recordings, deepfakes are much less concerning; (2) the history of photographic manipulation reveals precedents, correcting claims about the novelty of deepfakes; and (3) proposed solutions to deepfakes have been overly focused on technological interventions. The goal is not to argue that deepfakes are not a problem, but that concerns around them are part of a broader class of social problems about the organisation of our epistemic practices., The paper opens with the claim that we live in an age of propaganda, where modern systems allow anyone with a laptop to produce videos of anyone doing anything they want using advanced deep learning. Examples include a fabricated video of Barack Obama saying Ben Carson is in the sunken place, Tom Cruise joking about Mikhail Gorbachev and polar bears, Richard Nixon delivering a contingency speech about the destruction of Apollo 11, and Elizabeth Windsor delivering an alternative Christmas message. These deepfake videos suggest we can no longer trust our eyes when looking at videos, and even if deepfakes do not become widespread, their mere possibility undermines the knowledge we gain from recordings, leading to an 'Epistemic Apocalypse' narrative., The narrative, which began to take shape in 2018, rests on three claims: deepfakes will have terrible effects on our socio‑epistemic practices; deepfakes are historically unprecedented; and the solutions to deepfakes are technological. The paper argues that the first claim relies on an incorrect view of the epistemology of recordings, the second claim ignores the long history of manipulated recordings, and the third claim reflects a focus on technochaunism and the post‑truth narrative, to the detriment of social aspects of the problem., Other recent articles in popular journals and magazines have echoed these views, such as Adrian Chen (2017) and Daniel Immerwahr (2023)., Counsel for the petitioners, each in his own way, especially Mister Seervai, submitted that the impugned Rule gives social media users only the illusion of choice over content. In reality, it allows the Central Government to wholly proscribe alternate views on some content, and the Central Government alone decides what content will be subjected to identification as fake, false or misleading and why., This argument is predicated on the assumption, which I do not accept, that a social media user can be as thoroughly irresponsible in regard to content as he or she desires. Mister Mehta correctly notes that even if it is not a matter of policing or state authority, merely because the content is on the internet or on social media does not make it immune from checking and verification. Print media, he submits, always has internal fact‑checking. Major news organisations such as the Financial Times, the New York Times, The Economist and others have stringent fact‑checking standards. Submitted material must first pass through these filters before it reaches print or online editions. The petitioners have no grievance with this pre‑event fact‑checking; they do not claim it amounts to self‑censorship or pre‑censorship. Their only objection seems to be to the after‑the‑event post‑facto checking of a certain class of content relating to the business of the Central Government., The rejoinder is that pre‑censorship of Central Government content would be impermissible. The Union of India’s reply acknowledges the need for fact‑checking of online content, especially in reportage and news media coverage. However, the petitioners argue that if news coverage, opinion pieces, and editorials have already been filtered by the organisations themselves, they lie in the grey zone between absolute truths (2 + 2 = 4) and mere expressions of desires (which are neither true nor false). What can be targeted is the internally fact‑checked material that the Central Government unilaterally considers to be fake, false or misleading. This could be an analysis of the government’s own data or assertions, or criticism. Almost any counter‑narrative could be said to be misleading. In the absence of any guidelines, the Rule in question is vague and overbroad. Exemplars in court filings do not substitute for guidelines., Mister Seervai puts it like this: the government tells individuals or news outlets that they may put out content, some of it passing through internal filters, but they must do so knowing that if the government decides it is fake, false or misleading, their content is liable to be taken down. Every single counter‑point on government business can conceivably fall within the word misleading. What is left to the user, therefore, is nothing but an illusion of choice; in reality, there is no choice at all, and all must, at least with respect to the business of the Central Government, conform to the diktat of the Fact Checking Unit., This should not become a debate about a theory of law or freedoms.
id_1751	6	We are concerned with the interpretation of a particular Rule. The Petitioners' argument is founded on the premise that all users everywhere and in all circumstances have the plenitude of choice. In reality, our choices are constrained by innumerable factors. The argument comes perilously close to saying that no law that even fits within Article 19(2) as a constriction of choice can or should ever be made. A more accurate approach would be, I believe, to simply say that choices, i.e., freedoms, cannot be constrained except in strict accordance with Articles 19(2) to (6). The mere invocation of the illusion of choice is insufficient and might have perilous consequences such as a fifth instalment of The Matrix movie franchise., The contestation between fact and truth has been the focus of much artistic endeavour. Perhaps the most enduring and vivid example is the 1950 Japanese film Rashomon by Akira Kurosawa. The film is acclaimed for a plot device and structure by which various characters provide subjective, alternative, conflicting and contradictory versions of the same incident – the alleged rape of a woman and the murder of her samurai warrior husband. Four contradictory narratives are present, and the fourth character claims all three other stories are falsehoods. Which version is the truth?, It is worth pausing for a minute to reconsider the position and description of social media intermediaries. The word \platform\ is perhaps too arid given the nature and intensity of activity. A more apposite term might be to liken each one to a campus, one where, at least in theory, there should be a free exchange of ideas. But, as we know, free speech is imperilled even on campuses everywhere., In Who’s Cancelling Whom?, David Cole, National League Director of the American Civil Liberties Union and Honourable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center, addresses recent events on American campuses in the light of the recent conflict at Gaza. He writes that the sad reality is that intolerant efforts to silence those with whom we disagree have long been a staple of our culture. That is why the First Amendment is so necessary. Throughout our nation’s history, various groups – Jeffersonian Republicans, Hamiltonian Federalists, Catholics, Jews, Jehovah’s Witnesses, atheists, labour organisers, anarchists, pacifists, socialists, communists, civil‑rights activists, white supremacists, women’s liberation advocates, LGBT‑rights proponents, and fundamentalist Christians – have been victims of intolerance and, often, of government censorship as well., While social media has undoubtedly enabled new modes of cancellation, its ready availability to all has simultaneously provided a megaphone to unpopular speakers, making it more difficult to cancel them effectively. With so much cancellation from all sides, free speech is undoubtedly imperilled on college campuses. The academic enterprise demands a commitment to open debate and free inquiry. As a 1974 Yale faculty committee report, written by historian C. Vann Woodward, observed, the history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable., The prevalent notion that hearing something one finds offensive inflicts harm that should be avoided, and concomitant demands for trigger warnings and safe spaces, make open conversation challenging. It is not sufficient to invoke the playground rhyme “Sticks and stones may break my bones, but words will never hurt me.” We have all at some point been hurt by someone’s words. Speech is undeniably powerful and can be used for good or bad ends. Just as playing soccer inevitably poses the risk of injury, the free exchange of ideas will inevitably leave some feeling bruised. The costs must be acknowledged but cannot justify suppression if speech and academic inquiry are to be free. Committing to free speech means respecting everyone’s right to speak, even and especially those we deem most offensive., We should not forget that social media users do not just post content; they also consume it. They are readers as much as they are writers, forwarders or posters. The point that Mr. Seervai makes is, I believe, that it is not for any one agency to decide in the marketplace of ideas what a reader should or should not consume, or how he or she should make up his mind., In other words, and through the lens of our jurisprudence, anything that travels beyond the boundaries of Article 19(2) to adversely impact Article 19(1)(a) is absolutely forbidden. Censorship, direct or indirect, falls in this class unless it is shown to fit within the permissible restrictions prescribed and limited by Article 19(2)., Other contemporary cultural references are to speaking truth to power and calling out governments, about holding them to account. These also highlight the concerns of the Petitioners as citizens and show that these concerns are neither trivial nor confined to the rarefied and esoteric world of law courts. They are echoed in literature, art and cinema. The concern is not about facts, but about the form of truth that great literature teaches us., Since we have before us a petition by Kamra, a professional stand‑up comedian, we should listen closely to the words of Rowan Atkinson from 2018 on how fundamental the right to free speech really is: “My starting point when it comes to the consideration of any issue relating to free speech is my passionate belief that the second most precious thing in life is the right to express yourself freely. The most precious thing in life, I think, is food in your mouth, and the third most precious is a roof over your head, but a fixture for me in the number‑two slot is free expression, just below the need to sustain life itself.”, Why should we, in law, be so sanguine as to abjure the thoughts, beliefs and feelings of the world around us, or the way citizens increasingly choose to do business and to communicate? If the law is to progress through time, it must be informed by and alive to society and culture, changing times, aspirations, hopes, dreams and desires. The argument that the impugned Rule serves the public interest is irreconcilable with its singular focus on the business of the Central Government. That is by no means the only public interest even if public interest were a valid consideration in an Article 19(1)(a) challenge, which it is not., Mr. Mehta has tried to persuade us that it is within our remit to read down the Rule to save it, that being our primary objection. If we can find a way to uphold the Rule, we should. But how is this to be achieved? Mr. Mehta’s submission is really to show that the impugned Rule, correctly read, or sufficiently read down, is not vulnerable on the grounds of vagueness and overbreadth., The submission is in three parts: (i) what is fake, false or misleading is capable of accurate discernment, even if these terms remain statutorily undefined; (ii) mere vagueness with nothing more cannot result in the Rules being struck down; (iii) unconstitutionality of a law on the grounds of vagueness is limited to provisions with penal consequences, and hence the Shreya Singhal dicta will not apply., I have already discussed the relevant portions of Shreya Singhal on overbreadth and vagueness. I find nothing in Shreya Singhal that limits overbreadth or vagueness as a ground to hold a statute ultra vires to penal provisions only. If anything, it is quite the opposite. I cannot possibly revisit or rethink the Supreme Court dicta in Shreya Singhal., I am puzzled how it can be denied that this Rule has no penal consequences. It does. There does not have to be a rule prescribing an offence or a punishment. Rule 7 makes it clear that not only is there loss of safe harbour but there is an immediate liability to prosecution as well, and a loss of prosecution immunity if an intermediary does not cease to host the Fact‑Checking Unit‑identified content., The first point remains: is there vagueness? Can it be cured by an appropriate reading down (not a rewriting)? What would Mr. Mehta have us do? How would he have us read the Rule in question?, Mr. Mehta contends that the Rule is limited to that which is fake or false, and this can never be subjective. I have been at some pains to question the accuracy of even this assertion, so broadly stated. The submission wholly elides the expression “misleading” and asks that it be ignored entirely. That I cannot do. The three words are disjunctive; one expression cannot glide over the others. That is not reading down; it is reading out, which I cannot do., Mr. Mehta says that information in the impugned Rule should be confined to facts. Information is defined in the Information Technology Act. Fact takes its definition from the Evidence Act. The Rule does not suggest reading out “fake, false or misleading” as an exclusion of opinion, view, commentary, satire or criticism. It simply references any information that the Fact‑Checking Unit has identified as fake, false or misleading in relation to the business of the Central Government. The definition of information in the Information Technology Act is expansive and inclusive; a court cannot narrow it by judicial interpretation., I was surprised to hear from Mr. Mehta a suggestion that a disclaimer by intermediaries, when confronted with a Fact‑Checking Unit identification of some business of the Central Government being fake, false or misleading, would suffice without actual removal of content. Nothing in my analysis of the Rule supports this. The emphasis is on the words “not to host”. Continuing to host with a disclaimer attached is not contemplated at all., Emphasising the words “reasonable efforts” is of no avail because of the virality of the medium. No intermediary can guarantee that every single occurrence, repetition or incident of content is removed. Content proliferates and is repeatedly forwarded; digital content is frequently cached and can remain in some digital store for years. A reasonable‑efforts provision does not give the intermediary a choice to refrain from removing Fact‑Checking Unit‑identified content. If it does not, it has not made reasonable efforts and the consequences follow., Mr. Mehta, in his further written submissions, invites us to venture into the realm of the known unknowns, or, as he puts it, the “elephant test” – impossible to describe, but you know it when you see it. The first authority cited, from the United Kingdom, Aerotel Ltd v Telco Holdings Ltd, actually rejected this submission. Mr. Mehta’s canvas is this trifecta: (i) it is not necessary to define with precision the words fake, false or misleading because (ii) they cannot be precisely defined; yet (iii) one knows them when one comes upon them., The Union of India, however, argues that the terms are capable of mathematical precision and provides ten pages of definitions, presumably inviting us to fall back on ordinary lexical meanings. Yet these definitions cannot deny that, though a determination may be possible, it is inherently subjective., We have already seen what the Evidence Act says. Now we are told that the Fact‑Checking Unit will adhere to legal concepts such as pre‑ponderance of probabilities, proof beyond reasonable doubt and balance of equities while it identifies what is fake or false. These standards, rooted in the Evidence Act, can yield inconsistent and contradictory results. If the Fact‑Checking Unit decides matters on these standards, it arrogates to itself the power of a court, civil or criminal, which is inappropriate., Vagueness and overbreadth may overlap, but they are conceptually distinct. Vagueness is unacceptable fuzziness and lack of clarity. Overbreadth is a statute that tries too much. Dealing with overbreadth, the Shreya Singhal court applied the decision in Kameshwar Prasad v State of Bihar, where the Supreme Court struck down a rule that proscribed every form of demonstration or strike by a government servant as overbroad., I cannot accept the submission on behalf of the Union of India that the Petitioners are seeking to canvas a fundamental right to a falsehood. That is a terrible oversimplification. The fact that Article 19(1)(a) has no boundaries but Article 19(2) has very strict ones tells us plainly that expressions of ideas can, are, and should be contested; and that truth is indeterminate. Courts, as arbiters of neutrality, adjudicate evidence and proof of facts on the determinants set out in law., The point really is this: nobody can deny the Government the power to counter as strongly as it wishes any particular information, factoid or content. But it is altogether different for the Government to demand that the information it has identified in its sole discretion should be the only information about the business of the Central Government, and that any non‑conforming information must be excised., Mr. Mehta’s reliance on Tata Press Ltd v Mahanagar Telephone Nigam Ltd is not persuasive. That case concerned commercial speech, also protected under Article 19(1)(a), and reaffirmed that it can only be restricted under Article 19(2)., I am not prepared to hold that Article 19(2) can be expanded. This means that the impugned Rule must be shown to fall strictly within the parameters of Article 19(2). The submission that all fake, false or misleading information falls into Article 19(2) is an egregious mischaracterisation. For example, if the Financial Times or The Economist reports statistics on India’s performance and the Government disagrees, such reportage would be protected and not fall within Article 19(2). The submission does not address this possibility., Further, repeated references to national security, public interest and national interest are not found in Article 19(2). I have examined the examples cited by the Union of India and found only a single one that fits within the parameters of Article 19(2). Expressions such as “national security‑related information”, “public interest”, “elections” and “havoc” cannot be used to justify restriction under Article 19(2)., The Supreme Court decision in Secretary, Ministry of Information & Broadcasting, Government of India & Ors v Cricket Association of Bengal & Ors accepted that speech involving the use of airwaves could be regulated in the public interest. However, that decision dealt with licensing of broadcasters, not content. The impugned Rule is concerned only with content., I agree that the potential implications of fake news are wide. That is an argument against the Government on the question of overbreadth, because it makes every digital data chunk relating to the business of the Central Government suspect and subject to identification without reference to cause, effect or the constraints of Article 19(2). The primary requirement remains a demonstration that the impugned Rule falls within, and only within, the strait‑jacket of Article 19(2)., I reject without hesitation the attempt to curtail Article 19(1)(a) by asserting that the fundamental right is to ensure that every citizen receives only true and accurate information as determined by the Government. It is not the business of the Government to keep citizens from falling into error; rather, it is the duty of every citizen to prevent the Government from falling into error. Citizens elect Governments., Mr. Bhatia supports Mr. Seervai’s arguments. Our Constitution does not distinguish between high‑value and low‑value speech. The State cannot make this distinction. All forms of expression are presumptively protected under Article 19(1)(a); the only restrictions are in Article 19(2)., The State cannot coercively classify speech as true or false and compel non‑publication of the latter. That would be censorship. The constitutional guarantee of free speech is a guarantee on principle, a recognition of a natural right. Its rationale includes debate, dissent, discourse and dialogue as mechanisms to determine truth, individual agency and autonomy, and the democratic republic’s self‑governance under the rule of law., There is a divide between what is said and how it is said. Information and content cover the “what”; the “how” is a question of the manner of expression. Separating the two is not a matter of wheat‑from‑chaff, and few courts have achieved unanimity on this., In our constitutional scheme, free speech is always to be under‑regulated, and restrictions on it must be over‑regulated, not the other way around. This is not a finding that there is a fundamental right to falsehood, fake news or deepfakes. The only issue is whether the State has, in our constitutional set‑up, an overriding authority to determine both content and expression as the truth and to compel a particular form of content and expression., I am not suggesting, nor do I hold, that any fundamental right is absolute. Restrictions on the right must conform to what the Constitution itself demands. We need not look at American jurisprudence because our Constitution took a different path. It does not distinguish between types of free speech; it enumerates in Article 19(2) the specific parameters within which that right can be curtailed, and every statutory curtailment must fall strictly within those confines. Article 19(2) cannot be expanded by legislation or judicial pronouncement; such expansion would require a full‑fledged constitutional amendment., Where might a piece of fake news calling for insurrection or incitement to communal violence fall? Conceivably, it could be within the Article 19(2) limits of public disorder, but that demands guidelines and a narrowing of what can be held to be fake, false or misleading. The impugned Rule takes up falsity per se and restricts content on that ground divorced from any specific part of Article 19(2), which would be impermissible., Mr. Bhatia’s written submissions contain an extensive analysis of comparative jurisdictions, but the general principles are that while some things may be absolutely true (e.g., 2 + 2 = 4), the question is whether the State can arrogate to itself the power to determine, outside the starkly obvious, what may be true or false. History provides examples, such as Galileo. Even under the Evidence Act, an opinion is a fact, but it may be neither true nor false (for instance, whether a writer deserves the Nobel Prize)., My discussion could end here, but there are other submissions to consider, and I now turn to those.
id_1751	7	Supplementing Mister Seervai's argument, but with a focus on Article 19(1)(g) and Article 19(6), Mister Farasat opens with one incisive point. The test, he submits, and I think with considerable justification, is to see if this Rule could be applied to print media as it stands., Mister Farasat is quick to point out that the stereotyped vision of a social media user being only an individual with internet access on some device is far from true. The Editors Guild, which he represents, is in charge of content in both print and digital media. Several commercial bodies have traditionally only had print editions, but these publications now have social media accounts in the name of their publications, apart from individual content contributors having their own accounts. In law, this is most visible with, for instance, the online social media accounts of LiveLaw and BarAndBench, which have no print edition. Other publications such as the Times of India, The Hindu, the Hindustan Times, the Indian Express and so forth have daily broadsheets in print and also maintain social media accounts., The conundrum, he points out, is this: content is not fake, false or misleading only because of the medium. The medium does not determine the message. Yet the impugned Rule applies only to online content. If there is an underlying or accompanying print version, it is not subjected to the same level of scrutiny. Automatically, this means that the government is unconcerned with an actual, objective determination of what is fake, false or misleading. If the exact same material is in print, it cannot be censored; these rules will not apply. But if that very same material is propagated online, it is subjected to the impugned Rule. In other words, the impugned Rule censors social media circulation., As he puts it, free speech and the freedom of the press do not exist in a vacuum. The press, the fourth estate, needs infrastructure to generate and disseminate news. Control over newsprint and unencumbered circulation are protected: Bennett Coleman & Co. & Others v Union of India & Others; 66 reiterated in Kaushal Kishore., Article 19(6) provides: “Nothing in sub‑clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub‑clause, and, in particular, nothing in the said sub‑clause shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.”, Social media has become the primary news medium for the last half‑decade or so. There is material to show a precipitous decline in hard‑copy newspaper readership in India, which in turn means a stagnation or decline in advertising revenue. Social media is thus the primary driver for news dissemination. The impugned Rule targets social media content even for news outlets that have a print edition, and nothing is or can be proposed regarding the print version. Consequently, there is a direct infringement of Article 19(1)(g). The impugned Rule pushes out of the news cycle the digital version of any reportage with which the Central Government disagrees., The press must report all sides. According to Mister Farasat, the impugned Rule forces news publications to have an entirely one‑sided version online. The Press Council of India's norms for Journalistic Conduct clearly state that the government's view is one side. Even so, the impugned Rule literally forces only the government view., At least on this aspect of the matter, I am unable to see any appropriate answer to Mister Farasat's formulation. Any particular information does not become fake, false or misleading only because it is digital. Examples can be endlessly multiplied: India's economic growth, poverty levels, education, health, drinking water, even internet freedom are all fertile grounds for opposing views and criticism. If this critical material is in print, it cannot be censored, at least not by this Rule. But the very same material, merely because it is also in digital form, is liable to be suppressed as fake, false or misleading. What would happen to reports on figures and statistics on fatalities and vaccinations during the COVID‑19 pandemic? The government had one set of figures; others reported differently in print and also online. Would the online content be deemed fake, false or misleading while the identical content in hard copy would not?, The actual extent of internet or social media presence of a publication or journal is immaterial. After all, the fundamental rights are to protect the minority, not the other way around. The argument that a news outlet is not a citizen and cannot complain is also without merit, because the social media content, even if it is in the name of a particular journal, is operated by an individual., Mister Datar's submission, though taken as part of the Article 14 challenge, is apposite in this context. Republication on social media of material already in print can be taken down: that which cannot be forbidden in print is proscribed in its digital avatar. This impermissibly creates a dichotomy within Article 19 and is illegitimate, also failing the Article 14 test., What is particularly galling to his clients, Mister Farasat says, is the underlying approach that the business of the Central Government is not the business of anyone else. To the contrary, he says: your business is in every regard my business, and it is my duty to question and query everything you say., The challenges under Article 14 are considered in turn. Regarding classification, Mister Seervai submits that Article 14 permits classification, not class legislation. Even assuming that the purpose is legitimate to weed out information relating to the business of the Central Government that is fake, false or misleading, carving out only the business of the Central Government constitutes class legislation. Moreover, the second test—that there must be a rational nexus to the objective—is not met. This is not a case of under‑inclusion, because the government is not a valid class of its own when it comes to digital information. It is, as Mister Datar contends, a case of over‑inclusion because it encompasses protected speech such as dissent, criticism, and satire, thereby running afoul of Article 14, following the decision of the Supreme Court in State of Gujarat & Anr v Shri Ambica Mills Ltd & Anr., The subject of the impugned Rule, according to Mister Mehta, is the business of the Central Government, which he asserts is well defined and confined to the entries in Lists I and III of the Seventh Schedule and the Government of India (Allocation of Business) Rules, 1961, read with Article 73. Article 73 states: “Extent of Executive Power of the Union (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub‑clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. (2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.”, Article 73(1)(a) directly invokes Lists I and III of the Seventh Schedule, supporting Mister Mehta's formulation. However, Entry 97 in List I contains a residuary provision, making it expansive; and Article 73 extends the executive power of the Union even to matters on which Parliament has not legislated, though competent to do so. Whether this adds to overbreadth and vagueness is not the question. The point is that it is virtually impossible, akin to the elephant argument, to define precisely what the business of the Central Government actually covers., A look at the exemplars in the Union of India's compilation shows precisely this: the Press Information Bureau has issued corrections and identifications on a vast range of subjects—police, defence, health and medicine, social media account information, elections, statements attributed to the then Chief Justice of India, and so forth. This indicates two things: first, the business of the Central Government is not as well‑defined or limited as Mister Mehta suggests; second, the least restrictive measure of having the Press Information Bureau issue corrections, clarifications and identifications, even in relation to whatever may be the business of the Central Government, is sufficient., Thus, information and content relating to the business of the Central Government constitute a separate class. For this, and this alone, the Central Government's own Fact Check Unit will determine what is fake, false or misleading, and then the consequences follow., The Government does not ipso facto constitute a class of its own sufficient to justify preferential treatment. The differentiation must be intelligible, clearly distinguishing, for discernible reasons, those within the class from those left out. This distinguishing is called classification. The distinction must bear a rational nexus to the statutory objective: State of Rajasthan v Mukan Chand & Others., How might one test this? The universe of all social media content is a subset of all internet content (just as some of us use the internet but have no social media accounts, there is internet material that is not on social media). Within this subset is a further subset of information relating to the business of the Central Government. However, any content on the internet, the larger class, may be fake, false or misleading and may have the same ills and perils as any other piece of information. Similarly, any content on social media, not just government content, may be fake, false or misleading. Why is Central Government business‑related content a class apart, and why not, for that matter, State Government content or content relating to every instrumentality of the State? In other words, there is no justification for treating the business of the Central Government as having a special footing distinct from other information. As Mister Seervai somewhat explicitly put it, what is so great or special about the Central Government? To claim only that there is a significant likelihood of speculation, misconception and one‑sided information is no answer; that is equally true of anything or anyone., Accompanying this is the unanswered question of why the Central Government alone can decide for itself the veracity of all content that concerns it. Nobody else can do this, not even any of the twenty‑eight states in the country. Presumably, the Life Insurance Corporation of India would have accurate and up‑to‑date information about its own business, as would the State Bank of India and hundreds of other entities. They do not have this prerogative. This indicates that Mister Seervai's argument that there is no intelligible differentiation is correct., I see no reason why deepfakes about the Central Government should enjoy any greater protection than deepfakes about film actors or cricket stars., Clearly, this is invidious class legislation, not permissible classification., Regarding natural justice, I am considerably concerned about the structure of this enterprise. There is no safeguard against bias. There are no guidelines, no procedure for a hearing, and no opportunity to counter the case that some information is fake, false or misleading. This is not, on its face, a matter of subjective satisfaction on objective material; it is entirely subjective satisfaction on unknown material., Even more disturbingly, the Rule clearly makes the Central Government a judge in its own cause, the cause being the business of the Central Government (nebulous though that is). That is impermissible: A.K. Kraipak & Others v Union of India & Others. Regarding the business of the Central Government, the Central Government's Fact Check Unit will decide whether content is fake, false or misleading. How, on what material, no one knows; even we are not told. The lack of a hearing is profoundly disturbing, especially when cancelling content has serious civil consequences, including the fundamental rights under Articles 19(1)(a) and (g) of the Constitution. Even in commercial law, this has not been accepted, and a hearing has been required: State Bank of India v Rajesh Agarwal & Others., It goes on that there is no disclosure of material relied upon against the user's content that is being flagged. There is no requirement for a reasoned order. What grievance can legitimately be made in the form of a representation against this? It is not the grievance officer who has the material on which the Fact Check Unit acted., Regarding proportionality, Mister Datar has submitted that the impugned Rule fails the established proportionality test. In the context of a violation, infringement or abridgment of fundamental rights, the five‑fold tests were set out by the Supreme Court in Gujarat Mazdoor Sabha & Others v State of Gujarat: (i) a law interfering with fundamental rights must be in pursuit of a legitimate State aim; (ii) any law that infringes, abridges or abrogates the exercise of fundamental rights must bear a rational connection between the measure, the factual situation and the objective or aim of the statute; (iii) the measures must be shown to be (a) necessary and (b) not more excessive than needed; (iv) such restrictions must be shown to be necessary to protect or advance legitimate purposes; and (v) the State must provide sufficient safeguards against the abuse of such interference., The fifth of these, he submits, is wholly insufficiently provisioned. The after‑the‑event grievance redressal mechanism is meaningless because the officer in question simply does not know and cannot know the basis for the identification as fake, false or misleading of any content relating to the business of the Central Government., The impugned Rule cannot operate outside its controlling statute. Section 87 of the Information Technology Act allows the Central Government to make rules by notification to carry out the provisions of the Act. The 2023 amendment is said to have been made in exercise of powers under Section 87(2)(z) and (zg) of the Information Technology Act. Section 87(2)(z) contemplates rules that provide for the procedure and safeguards for blocking access by the public under subsection (3) of Section 69A. Section 87(2)(z) also relates to rules that set out guidelines to be observed by intermediaries under Section 79(2) (for safe harbour)., The impugned Rule is not made under Section 87(2)(z) of the Information Technology Act; therefore, it falls under Section 87(2)(zg). That in turn means it must be read with Section 79(2) (the safe harbour provision). Section 87(2)(zg) directly references Section 79(2); this is another reason it is impossible to argue that the impugned Rule does not result in loss of safe harbour if not followed—the loss of safe harbour is the Rule's intent., I do not see how, under Section 87(2)(zg), the Central Government could, by a Rule, create a Fact Check Unit to identify any information relating to the Government's business as fake, false or misleading. There is no proximate or discernible nexus between a fact‑check unit and social media or intermediaries. A fact‑check unit will check facts wherever they are found; it is media‑agnostic., Further, the impugned Rule creates substantive law beyond the parent statute. Nothing in Section 69A or Section 79 permits this targeted unilateralism in relation to digital content. The substantive law created is this: the intermediary, on receiving a communication from the Fact Check Unit or the Central Government, and without any of the protections of Section 69A (which provide oversight through mechanisms for the most serious issues, including requiring reasons and following prescribed procedures and safeguards), must, at the risk of losing safe harbour, excise the content so identified. That is not mere rule‑making; it is substantive law., In any case, no rule‑making power can be exercised outside the frame of Article 19(2)., The Shreya Singhal decision amply makes this clear. That is why the Supreme Court engaged in the exercise of reading down, preserving the obvious social need but keeping it narrowly tailored to fit within Article 19(2)., Legislative competence: Mister Datar's intervention came very late in the day, and we allowed him to address. His starting point was that any expansion of Article 19(2) could not be done by delegated legislation or by rules; it needs a constitutional amendment. That is correct: I.R. Coelho v State of Tamil Nadu. However, Mister Mehta's submission is not about an expansion of Article 19(2) at all, but that the Rule fits within Article 19(2) as it stands. Equally, Mister Mehta does not dispute the general proposition that where a fundamental right is sought to be restricted, the burden is on the State to justify it: Sahgir Ahmad v State of Uttar Pradesh & Others. Mister Mehta's case is that there is no fundamental right infringement at all on account of the impugned Rule., Before I proceed, I clarify that I have not found it necessary to examine every single submission in the multiple written submissions filed before, during and after the hearings, nor to consider every single judgment. I have dealt with what I believe is the essence of the dispute. Much may have been said in writing, but oral arguments were far more condensed., What troubles me about the impugned 2023 amendment, and for which I find no plausible defence, is that the amendment is not merely close to, but actually takes the form of, censorship of user content. There is no material difference between this and the newsprint cases of the 1990s. I should not be misunderstood: this is not a comment on any particular dispensation or the present government. I am only considering the effect of the impugned amendment. It shifts the responsibility for content accuracy from the creator or originator of the content to the service provider or intermediary, an entity that axiomatically has no control over the content. Yet an intermediary is the one that has safe harbour and, as a business entity, is regulated by the government in myriad ways. The impugned amendment makes the government's chosen Fact Check Unit the sole authority to decide what piece of user content relating to the undefined and unknowable business of the government is or is not fake, false or misleading. The lack of definition of these words—business of the government; fake; false; and misleading—makes the amendment both vague and overbroad. Anything might be the business of government; anything could be said to be fake. Misleading is entirely subjective. Regarding truth and falsity, throughout recorded human history there are few, if any, absolute truths. Perceptions, perspectives, possibilities, and probabilities all colour what one chooses to believe or not. The assumption that there are absolute truths even about the business of government, even if we knew what that included, is unsubstantiated., How the Fact Check Unit will go about its business is also unknown. We are simply asked to trust it. This is not a question of trust, nor of distrust in any particular dispensation. It is simply a matter of setting the impugned Rule against settled law and seeing whether it passes established constitutional tests., By shifting responsibility for user content to the vulnerable segment, viz., the intermediary, the 2023 amendment effectively allows the government, through its Fact Check Unit, to be the final arbiter not just of what is fake, false or misleading, but, more importantly, of the right to place an opposing point of view. We have already seen examples, and they are not entirely hypothetical. The government routinely rebuts criticism. If, in addition, this is now labelled fake, false or misleading (and there are no guidelines to suggest why it cannot be), then criticism and debate are stifled. There is little achieved by saying that the guidelines will come later; there is no assurance of that either, and they should have been in place by now if there was such an intent., Again, I should not be misunderstood to suggest that the problem of digital fakes is not serious. It is serious because it is a deliberate distortion, and it needs to be exposed and demonstrated through an open dialectic of debate and discourse. This is, to be sure, noisy, raucous, and a messy business, but that is the nature of a democratic republic with ensured freedoms: the cacophony of dissent and disagreement is the symphony of a democracy at work. The view of the Fact Check Unit or the Press Information Bureau that a particular piece of information relating to the business of the government is fake, false or misleading should not be allowed to be taken inviolate; most certainly, its publication cannot be subject to penalty and loss of immunity., Who, after all, is to fact‑check the fact‑checker? Who is to say if the view of the Fact Check Unit is fake, false or misleading? Quis custodiet ipsos custodes?, Of equal concern is the attempt in the impugned amendment to impermissibly expand the remit of Article 19(2). This is directly contrary to the government's own stand before the Supreme Court in Kaushal Kishore, where it argued that Article 19(2) is exhaustive. I fail to see how the amendment is within the scope of Shreya Singhal either. To the contrary, it fails every test set out in that decision, especially for overbreadth and vagueness. The impugned amendment is ultra vires Article 19(1)(a), Article 19(2), Article 19(1)(g), Article 19(6), Article 14, violates the principles of natural justice, and is also ultra vires Section 79 of the Information Technology Act., As a general and perhaps even inflexible rule, I would suggest that every attempt to whittle down a fundamental right must be resisted root and branch. The slightest possibility of a fundamental right abridgment cannot be allowed to stand. Every attempt to limit any fundamental right must be demonstrably confined to its permissible limits within Articles 19(2) to 19(6). Everything else is illegitimate. Between the abyss of unrestrained power and the heaven of freedom lie these three Articles of our Constitution: Articles 14, 19 and 21. These are the famous words of Y.V. Chandrachud, Chief Justice of India, in Minerva Mills v Union of India & Others., The submission on Article 14 and the invalid classification is, in my view, correctly placed. As I have noted, information relating to the business of the Central Government is a subset fully included in the 2022 amendment. There is no particular reason why such information should receive high‑value speech recognition, more deserving of protection with a dedicated cell to identify that which is fake, false or misleading, as opposed to precisely such information about any individual or news agency. There is material, indicated above, about what is called the epistemic apocalypse. We have seen that, other than isolated instances of fakery, there is no material at all of any particular public interest or national interest peril, and these are not even within the permissible parameters of Article 19(2). Consequently, it follows that separating out the business of the Central Government for preferential treatment is class legislation, not a rational or permissible classification. I will accept that it is not open to intermediaries to disclaim all responsibility; no petitioner has suggested that. Wholesale abandonment of all responsibility is irresponsible. But that only reinforces the point that all information deserves equal treatment., The questions of overbreadth and vagueness are indeed troubling. I do not believe it is a satisfactory answer to suggest that, although we do not have it now, in the fullness of time the Fact Check Unit will evolve some working protocol, guidelines or yardsticks. These are being self‑applied to hand‑picked content without any indication of the processes to be followed, making it difficult to accept that the impugned Rules are sufficiently narrowly tailored. These issues are discussed in Shreya Singhal, and those findings apply with equal force here., Further, the lack of contemporaneous guidelines raises another question, never fully answered. As I have noted, the Union's argument has proceeded on the basis that all users are individuals. However, as we have seen, that is entirely incorrect; users are also entities such as news outlets and journals.
id_1751	8	Not only do they have their own fact‑checking systems, but they and their individual writers publish in print and online. The decisive test must surely be that if the material in print cannot be subjected to Fact‑Checking Unit checking and compelled deletion, there is no reason why, merely because the exact same material also appears online, it is susceptible to unilateral determination of fakeness, falsity or being misleading., I have not been able to accept the submission, perhaps implicitly suggested, that there has been no violation in the form of censorship or unilateral takedown as yet and therefore there is no call for interference; or that the assault is on mere possibility of abuse. It is not my reading of the law that petitions can only lie infringement by infringement. The entire discussion in Shreya Singhal v. Union of India on the chilling effect militates against an acceptance of any such submission, for the finding of the Supreme Court of India is clearly Kunal Kamra v. Union of India & Connected Matters per Justice G.S. Patel (pdf dated 31st January 2024) directed towards the anticipated future impact of a rule. The very words chilling effect suggest only this., More importantly, this argument is founded on the entirely incorrect theory that the government is somehow parens patriae; it is duty‑bound to ensure that citizens receive only correct information (or what the government considers correct information); that the reasonable reader is infantile and cannot decide for herself or himself; and so on to the end of the chapter. This is again circular, for it is posited on the assumption that government‑related information is somehow special and deserving of extra protection. This sits at odds with the fact that the biggest megaphone and the loudest voice is that of the government: if there is one entity that does not need such protection, it is the government. It already has an authentic voice, possibly the most authentic voice, and it has so far been unafraid to use it., Finally, I believe it is unthinkable that any one entity, be it the government or anyone else, can be unilaterally identified (meaning picked out and decided) to be fake, false or misleading. That surely cannot be the sole preserve of the government. The argument that the government is best placed to know the truth about its affairs is equally true of every citizen and every entity. Paradoxically, complaints of a grievous nature (pornography, child abuse, intellectual property violations) can only be taken down after following a grievance redressal procedure; yet anything relating to the business of the Central Government can be identified as fake, false or misleading by the Fact‑Checking Unit and cannot be hosted (Kunal Kamra v. Union of India & Connected Matters per Justice G.S. Patel, pdf dated 31st January 2024)., For these reasons, and the ones set out at greater length in the preceding discussion, I would strike down the 2023 amendment to Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and make the rule absolute accordingly, with no order on costs., I express my thanks to Mr Mehta, Mr Seervai and Mr Datar but in particular must make mention of Mr Farasat and Mr Bhatia. I would also be wholly remiss if I failed to mention the contributions of Ms Arti Raghavan, Ms Meenaz Kakalia, Ms Radhika Roy and Ms Aditi Saxena. It is because of their ability and organization that we were able to complete the hearing., I regret that I have been unable to persuade Justice Gokhale to my perspective, nor I to share hers. We have, with due respect to each other's views, agreed to disagree. To my mind, not only does that redound to the credit of our system since it permits and even encourages independence and dissent, but it is possibly the most complete answer to the very issue at hand, reinforcing thoroughly my view: that in our country, and under our Constitution, an alternative view should not ever be allowed to go unsaid, unheard or unread., I make no order of costs. The Interim Application will not survive and is disposed accordingly.
id_1753	0	Petitioner: U.P. Sunni Central Waqf Board. Respondent: Ancient Idol of Swayambhu Lord Vishweshwar and five others. Counsel for Petitioner: Punit Kumar Gupta. Counsel for Respondent: Ajay Kumar Singh, Ashish Kumar Singh, Hare Ram, Manoj Kumar Singh, Tejas Singh, Vineet Pandey, Vineet Sankalp. Petitioner: Anjuman Intazamia Masazid Varanasi. Respondent: Ist Additional District Judge, Varanasi and others Qadeer, S.I. Siddiqui, Syed Ahmed Faizan, Tahira Kazmi, V. K. Singh, Vishnu Kumar Singh. Counsel for Respondent: C.S.C., A.P. Srivastava, Ajay Kumar Singh, Ashish Kumar Singh, Bakhteyar Yusuf, Hare Ram, Manoj Kumar Singh, Prabhash Pandey, R. S. Maurya, Rakesh Kumar Singh, V. K. S. Chaudhary, Vineet Pandey, Vineet Sankalp. Petitioner: Anjuman Intezamia Masajid Varanasi. Respondent: Ancient Idol of Swayambhu Lord Vishweshwar and five others. Counsel for Petitioner: Syed Ahmed Faizan, Syed Farman Ahmad Naqvi (Senior Advocate). Counsel for Respondent: Punit Kumar Gupta, Ajay Kumar Singh, Ashish Kumar Singh, Hare Ram, Vineet Pandey, Vineet Sankalp. Petitioner: U.P. Sunni Central Board of Waqfs, Lucknow. Respondent: Ist Additional District Judge, Varanasi and others. Counsel for Petitioner: M. A. Haseen, Ateeq Ahmad Khan, Bakhteyar Yusuf. Counsel for Respondent: C.S.C., Ajay Kumar Singh, Ashish Kumar Singh, Hare Ram, Prabhash Pandey, Syed Ahmed Faizan, Vineet Pandey, Vineet Sankalp, Zaheer Asghar. Petitioner: Anjuman Intezamia Masajid Varanasi. Respondent: Ancient Idol of Swayambhu Lord Visheshwar Full and five others. Counsel for Petitioner: Syed Ahmed Faizan, Senior Advocate Shri S. F. A. Naqvi, Zaheer Asghar. Counsel for Respondent: Punit Kumar Gupta, Ajay Kumar Singh, Ashish Kumar Singh, Hare Ram, Tejas Singh, Vineet Pandey, Vineet Sankalp. , These five connected cases filed under Article 227 of the Constitution of India have been nominated to the Supreme Court of India by an order of the Honourable Acting Chief Justice dated 29 November 2023. , Defendant No. 1, Anjuman Intezamia Masjid, filed three cases under Article 227 (Case No. 3341 of 2017, earlier Writ Petition No. 32565 of 1998) assailing the revisional order dated 23 September 1998 and the order dated 18 October 1997 passed by the trial court on application 96/C filed by the plaintiffs, deciding Issue No. 2 regarding the applicability of Section 4 of the Places of Worship (Special Provisions) Act, 1991. , Case No. 3844 of 2021 filed under Article 227 challenges the order passed on 8 April 2021 by the Civil Judge (Senior Division), First Tier Court, Varanasi on application Paper No. 266-Ga directing a survey by the Archaeological Survey of India in Original Suit No. 610 of 1991. , Case No. 1521 of 2020 was filed for setting aside the order dated 4 February 2020 passed by the Civil Judge (Senior Division), First Tier Court, Varanasi rejecting application 270-Ga of Defendant No. 1 and application 274-Ga of Defendant No. 2, wherein a prayer was made for staying the proceedings of Original Suit No. 610 of 1991 on the basis of the interim order granted by this Court on 13 October 1998 in Writ Petition No. 3341 of 2017. , Defendant No. 2, U.P. Sunni Central Board of Waqfs, Lucknow, filed two cases under Article 227: Case No. 234 of 2021 (earlier Writ No. 18576 of 1999) challenging the revisional order of 23 September 1998 and the order of 18 October 1997 on the ground that Section 4 of the Places of Worship Act, 1991 was not attracted; and Case No. 3562 of 2021 assailing the order of the Civil Judge (Senior Division), First Tier Court, Varanasi directing a scientific survey by the Archaeological Survey of India on application Paper No. 266-Ga. , Plaintiffs‑respondents Nos. 3 to 6 of Petition No. 3341 of 2017 filed Original Suit No. 610 of 1991, Ancient Idol of Swayambhu Lord Vishweshwar and others versus Anjuman Intezamia Masajid and another, before the Civil Judge (Senior Division), Varanasi on 15 October 1991, claiming the following reliefs: (a) a decree declaring that the structure standing over and above the cellars (Tahkhana) and the adjoining part of the old temple of plaintiff No. 1 together with the Naubat Khana, as detailed in Schedule A and shown with red hatched lines in the plaint map towards the north of the temple of Lord Vishweshwar, and a house lying to the east of the said Naubat Khana, is the property of plaintiff No. 1 and that the devotees of Lord Vishweshwar, i.e., Hindus at large, have every right to use it as a place of worship, to renovate and reconstruct their temple, and that the defendants have no right, title or interest therein; (b) a mandatory injunction ordering the defendants to remove their effects from the portion shown with red hatched lines in the plaint map and to hand over possession of the said structures to the plaintiffs; and (c) a prohibitory injunction permanently restraining the defendants, their agents and servants from interfering with the peaceful possession of the plaintiffs over the properties and structures mentioned in Schedule A, including performing religious ceremonies, seva puja, rag bhog, and any remodeling, repairing, reconstructing or adding to the remaining portion of the temple of Lord Vishweshwar. , The plaint alleges that a part of the old temple of Lord Vishweshwar lies in the centre of the Gyanvapi compound, over and above the cellars (Tahkhana) existing in part of Settlement Plot No. 9130, situated at Mauza Shahar Khas, Paragana Dehat Amanat, Tehsil and District Varanasi, and that this area is marked with a red hatched line in the map annexed to the plaint as a mosque, together with the Naubat Khana over the northern gate of the Gyanvapi compound and the house towards the east of the Naubat Khana. , The entire Gyanvapi compound, comprising Settlement Plots No. 9130, 9131 and 9132, measures one bigha, nine biswa and six dhur and is surrounded by an old boundary wall containing the ancient temple of Lord Vishweshwar together with four mandaps and their ruins—Gyankoop, Mukti Mandap (newly constructed), Vyas Gaddi, idol of Sri Ganeshwar, Ganga Devi, Sri Hanuman Ji, Nandi, Sri Gauri Shanker, Sri Ganesh Ji, Sri Mahakaleshwar, Sri Maheshwar, Shringar Gauri and several other idols of Hindu deities, both visible and non‑visible, duly consecrated. Three trees stand over idol Nandi, the Naubat Khana over the northern gate, and a house of temple servants towards the east of the northern gate; these have been described in Schedule B of the plaint. , It is further stated that prior to the Puranic period a Swayambhu Jyotirlinga of Lord Shiva, popularly known as Lord Vishweshwar, existed at the site long before the advent of Muslim rule in India. The land pertinent to the temple is mainly used for parikrama and worship of the idol. , The importance of the pious place of the Gyanvapi idol of Lord Vishweshwar and the idols situated in its precincts has been elaborately described in the Skanda Purana of Kashi Khand and other Puranas. The temple was constructed by King Vikramaditya about 2050 years ago and the idol of Lord Vishweshwar was duly consecrated therein. Due to religious antipathy the temple was pulled down several times during Muslim rule, and ruins of the temple exist at the place. Since it was the period of the Mughal Empire, Hindus strictly preserved the main linga of Lord Vishweshwar at the same place and continued worship. , During the reign of Emperor Akbar, the temple was rebuilt after consent was granted; the construction was carried out by Narayan Bhatt with the help of his disciple Raja Todarmal, Finance Minister of Emperor Akbar. , Besides the original temple of Lord Vishweshwar, there are four mandaps around the temple known as Mukti Mandap, Gyan Mandap, Aishwarya Mandap and Shringar Mandap. , The name of the idol and temple of Lord Vishweshwar in the Gyanvapi compound is synonymously known as Lord Vishwanath. On 18 April 1669 A.D., based on erroneous information reaching Emperor Aurangzeb, he ordered the demolition of such schools and temples of infidels (kafirs). This event of demolition has been mentioned in the Ma‑Asir‑i‑Alamgiri printed in Arabic in 1871 by the Asiatic Society of Bengal. , The place in dispute is the abode of the deity Swayambhu Lord Vishweshwar and cannot be the building of another faith. It is further averred that the property was never dedicated to a mosque by Emperor Aurangzeb, nor was he the owner of the temple of Lord Vishweshwar; consequently he could not have created a waqf in favour of Muslims. Therefore the property could never have been a waqf to non‑Hindus and the construction could not be appropriated as a mosque according to the true spirit of Muslim law. , Defendant No. 2 illegally and unauthorisedly alleged that the property was registered as a mosque in its register, which is illegal, unauthorised, void and not binding upon the plaintiffs and other Hindus. Moreover, the Waqf Act is not applicable to Hindus. Hence, the religious character of the place of worship detailed in Schedule A of the plaint has never been converted into a mosque; the property has been a temple of Swayambhu Lord Vishweshwar since ancient times. , Petitioner‑defendant No. 1 filed application 71‑C on 23 March 1995 under Order 7 Rule 11(d) of the Code of Civil Procedure for rejecting the plaint on the ground of the bar contained in the Places of Worship Act, 1991. Defendant No. 2, U.P. Sunni Central Board of Waqf, which was initially not impleaded, was later impleaded on 1 January 1992 as Defendant No. 2 and also filed an application under Order 7 Rule 11(d) of the Code of Civil Procedure seeking rejection of the plaint on the same ground. , Both defendants filed their separate written statements on 15 November 1996 and 23 February 1995 respectively. As the applications were not pressed by the defendants, the trial court, after perusing the pleadings, framed ten issues on 17 July 1997. , The trial court on the same day directed that Issues No. 1 and 2 shall be the preliminary issues and fixed a hearing for 21 August 1997. An application, being Paper No. 96/C, was filed by the plaintiffs for recalling the order dated 17 July 1997 to treat Issue No. 2 as a substantive issue, arguing that it required adjudication on merit with evidence from both parties and was not merely a question of law. , On 18 October 1997 the trial court held that reliefs (a) and (c) were not barred by Section 4 of the Places of Worship Act, 1991, but relief (b) was barred and directed the plaintiff to delete relief (b) by filing an amendment. The court also held that application 96/C was not maintainable and that evidence was not necessary for disposal of Issue No. 2. , Against the order dated 18 October 1997, three revisions were filed: Civil Revision No. 281 of 1997 by Defendant No. 2, U.P. Sunni Central Waqf Board; Civil Revision No. 285 of 1997 by Defendant No. 1, Anjuman Intezamia Masjid; and Civil Revision No. 286 of 1997 by the plaintiffs. , By a common judgment and order dated 23 September 1998, the order of the trial court deciding Issue No. 2 was set aside and the trial court was directed to decide Issue No. 2 along with the other issues after taking evidence. , Against the order of the revisional court dated 23 September 1998, Defendant No. 1 filed a matter under Article 227 No. 3341 of 2017 (earlier No. 32565 of 1998) wherein further proceedings of Suit No. 610 of 1991 were stayed. Defendant No. 2 filed a matter under Article 227 No. 234 of 2021 (old No. 18576 of 1999) challenging the revisional court's order dated 23 September 1998 as well as the trial court order. , During the pendency of these two petitions, the plaintiff on 10 December 2019 moved an application before the trial court, Paper No. 266‑Ga, stating that the interim order granted by this Court on 13 October 1998 had expired after six months in view of the Apex Court decision in Asian Resurfacing of Road Agency vs. Central Bureau of Investigation (2018) 16 SCC 299, and prayed for a survey of the premises by the Archaeological Survey of India. The application was allowed on 8 April 2021. The order directed the Director General of the Archaeological Survey of India, New Delhi, to conduct a comprehensive archaeological physical survey of the entire Settlement Plot No. 9130 at Mauja Shahar Khas, Pargana Dehat Amanat, Tehsil and District Varanasi, including the Naubat Khana situated at the northern gate of the Gyanvapi compound and the house towards the northern gate, to constitute a five‑member committee of eminent archaeologists (two preferably from minority communities), to appoint an eminent observer from a central university, to prepare detailed documentation, drawings and site maps, to determine whether the present structure is a superimposition, alteration or addition over any other religious structure, to use ground‑penetrating radar and, if necessary, limited trial trench excavation, to preserve any artefacts discovered, to ensure that Muslim worshippers are not prevented from offering namaz, to provide alternative prayer facilities if required, to give advance notice to parties, to keep the survey work camouflaged, to prevent media access, to secure the site, to conduct the work between 9 a.m. and 5 p.m., to comply with COVID‑19 guidelines, and to submit a sealed report without delay. The cost of the survey was ordered to be borne by the Archaeological Survey of India. , Aggrieved by the trial court order, both defendants filed civil revisions before the District Judge, Varanasi. The defendants simultaneously filed matters under Article 227 No. 3844 of 2021 and No. 3562 of 2021 before this Court. On objection raised by the plaintiffs, the revisions before the District Judge were withdrawn by the defendants, and an order was passed on 12 August 2021. In both petitions, an amendment was sought and allowed by this Court on 9 September 2021, and further proceedings of Original Suit No. 610 of 1991 were stayed. , In the meantime, Defendant No. 1 filed application No. 270‑Ga in Original Suit No. 610 of 1991 for staying further proceedings in pursuance of the interim order dated 13 October 1998. The application was dismissed on 4 February 2020 and was challenged by Defendant No. 1 through a matter under Article 227 No. 1521 of 2020. , All these five cases filed under Article 227 of the Constitution of India have been connected by an earlier order of this Court and placed before this Court for adjudication after nomination by the Honourable Acting Chief Justice on 29 November 2023. , Sri S. F. A. Naqvi, learned Senior Counsel appearing in Case No. 3341 of 2017, submitted that plaintiffs‑respondents Nos. 1 to 5 have nothing to do with the place of worship in question, that they have every right to offer prayer in the temple, and that neither they nor anyone else has been debarred from performing religious rites. He stated that the committee running the affairs of the temple has no dispute with the petitioner and that both are performing their religious duties in a congenial atmosphere, while outsiders are creating hurdles. , The Places of Worship (Special Provisions) Act, 1991 was promulgated to foreclose any controversy in respect of places of worship. It is an Act made by Parliament under the constitutional mechanism and operates within the four corners of the Constitution of India. , According to counsel, the suit involves a legal question already addressed by the object and reason of the Act, which prohibits conversion of any place of worship and provides for maintenance of the religious character of any place as it existed on 15 August 1947. Section 2(b) defines \conversion\ to include any alteration or change of any nature. Section 3 bars conversion of a place of worship, while Section 4 declares the religious character of certain places of worship existing on 15 August 1947 and bars jurisdiction of the court. Accordingly, the reliefs of declaration, mandatory injunction and prohibitory injunction claimed by the plaintiffs in Suit No. 610 of 1991 cannot be granted in view of Section 4 of the Act. , The Act came into force on 11 July 1991; any suit or proceeding with respect to conversion of the religious character of any place of worship existing on 15 August 1947 shall abate. , Since the mosque stands on Plot No. 9130 and has been used by Muslims to offer namaz since 15 August 1947, its religious character cannot change, and it cannot be converted into a temple, which would be contrary to Section 4 of the Act. , Reliance has been placed upon the decision of the Additional Civil Judge dated 25 August 1937 in Original Suit No. 62 of 1936 between Din Mohammad and others versus the Secretary of State for India in Council, through the District Magistrate and Collector, Banaras, which was affirmed in First Appeal No. 466 of 1937 by this Court, reported in AIR (29) 1942 Allahabad 353. , The trial court on 25 August 1937 declared that only the mosque and graveyard with land underneath are Hanafi Muslim waqf and that the plaintiffs and other Hanafi Muslims have the right to offer prayer and perform other legitimate acts only in the mosque. Once it was settled in 1937 that the site was a mosque, the suit filed under Order 1 Rule 8 by the plaintiffs is clearly barred by Section 4 of the Act. , Counsel contended that an undertaking was given by the State Government and the Union Government before the Apex Court in the case of Mohd. Aslam @ Bhure vs. Union of India and others, 1994 (2) SCC 48, for safeguarding the religious places Gyanvapi Masjid and Vishwanath Temple at Varanasi and Krishna Temple and Eidgah at Mathura. He further argued that the suit is barred by Section 9 of the Code of Civil Procedure as it is expressly barred by the Act. , It was argued that Order 7 Rule 11(d) of the Code of Civil Procedure provides for rejection of a plaint where the suit appears to be barred by any law. In the present case, paragraphs 12, 13 and 14 of the plaint allege the existence of a mosque, and once that is accepted, Suit No. 610 of 1991 is barred by the Act. , Counsel invited the Court's attention to sub‑Rule (2) of Rule 2 of Order 14, stating that the court below was required to decide the issue of law where a bar to the suit is created by any law in force, and that Order 7 Rule 11(d) and Order 14 Rule 2(2)(b) must be read in harmony, which the lower court failed to do. , Reliance was placed upon various Supreme Court decisions, namely: (i) Ram Singh and others vs. Gram Panchayat Mehal Kalan and others (1986) 4 SCC 364; (ii) Aimer Kaur and others vs. Punjab State and others, AIR 1991 Punjab & Haryana 12; (iii) Abdul Gafur and others vs. State of Uttarakhand and others (2008) 10 SCC 97; (iv) Kuldeep Singh Pathania vs. Bikram Singh Jaryal (2017) 5 SCC 345; (v) Bhargavi Constructions and another vs. Kothakapu Muthyam Reddy and others (2018) 13 SCC 480; (vi) Raghwendra Sharan Singh vs. Ram Prasanna Singh, AIR 2019 (SC) 1430; (vii) Urvashiben and another vs. Krishnakant Manuprasad Trivedi (2019) 13 SCC 372; (viii) Sopan Sukhdeo Sable and others vs. Assistant Charity Commissioner and others, AIR 2004 SC 1801; (ix) Madanuri Sri Rama Chandra Murthy vs. Syed Jalal, AIR 2017 SC 2653; and (x) R. K. Roja vs. U. S. Rayudu and another (2016) 14 SCC 275. , It was contended that Original Suit No. 18 of 2022 (Smt. Rakhi Singh and others vs. State of U.P. and others) was filed concerning the same Plot No. 9130, seeking declaration and injunction. Defendant No. 1 contested the suit and filed an application under Order 7 Rule 11 of the Code of Civil Procedure, stating that it was barred. The application was dismissed on 12 September 2022, leading to Civil Revision No. 101 of 2022 before this Court, which was dismissed on 31 May 2023. A Special Leave Petition has been filed before the Honourable Apex Court and is pending. , Sri Punit Kumar Gupta, learned counsel for Defendant No. 2, submitted that the State of U.P. had promulgated the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 (U.P. Act No. 29 of 1983) for proper administration of the Sri Kashi Vishwanath temple, while waqf property is governed by the Waqf Act, 1995. Section 3(r) of the Waqf Act defines a waqf. Both the temple and the mosque are separate entities governed by their respective statutes. , According to counsel, an exchange deed was executed between Defendant No. 2 and the State of U.P. for giving land for the establishment of a Police Control Room for the security of the disputed property. The Waqf Board, in the year 1993‑94, had given some land on licence to the U.P. Government through the Sub‑Divisional Superintendent of Police, Varanasi, where the Police Control Room was established. The land was exchanged in the year 2021. , Counsel further contended that the mosque in question is a waqf, as held in the judgment of Din Mohammad (supra). Section 4 of the Places of Worship Act, 1991 clearly bars the suit filed by the plaintiffs. , Reliance was placed upon the decision of the Honourable Apex Court in M. Siddiq vs. Mahant Suresh Das and others (2020) 1 SCC 1, also known as the Ram Janmabhoomi case. Relevant paragraphs (92, 97.2, 99‑105) state that the Places of Worship Act, 1991 was enacted to preserve the religious character of places of worship as they existed on 15 August 1947, and that its provisions are binding on all courts.
id_1753	1	The long title evinces the intent of Parliament in enacting the law, for it is: An Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947, and for matters connected therewith or incidental thereto. The law has been enacted to fulfil two purposes. First, it prohibits the conversion of any place of worship. In doing so, it speaks to the future by mandating that the character of a place of public worship shall not be altered. Second, the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on 15‑8‑1947 when India achieved independence from colonial rule., The law preserves the religious character of every place of worship as it existed on 15‑8‑1947. Towards achieving this purpose, it provides for the abatement of suits and legal proceedings with respect to the conversion of the religious character of any place of worship existing on 15‑8‑1947. Coupled with this, the Places of Worship Act imposes a bar on the institution of fresh suits or legal proceedings. The only exception is in the case of suits, appeals or proceedings pending at the commencement of the Act on the ground that conversion of a place of worship had taken place after 15‑8‑1947. The proviso to sub‑section (2) of Section 4 saves those suits, appeals and legal proceedings which are pending on the date of the commencement of the Act if they pertain to the conversion of the religious character of a place of worship after the cut‑off date. Sub‑section (3) of Section 4, however, stipulates that the previous two sub‑sections will not apply to: (a) ancient and historical monuments or archaeological sites or remains governed by Act 24 of 1958 or any other law; (b) a suit or legal proceeding which has been finally decided, settled or disposed of; (c) any dispute which has been settled by the parties before the commencement of the Act; (d) a conversion of a place of worship effected before the commencement of the Act by acquiescence; and (e) any conversion of a place of worship before the commencement of the Act in respect of which the cause of action would be barred by limitation., The purpose of enacting the law was explained by the Union Minister of Home Affairs on the floor of the Lok Sabha on 10‑9‑1991: We see this Bill as a measure to provide and develop our glorious traditions of love, peace and harmony. These traditions are part of a cultural heritage of which every Indian is justifiably proud. Tolerance for all faiths has characterised our great civilisation since time immemorial. These traditions of amity, harmony and mutual respect came under severe strain during the pre‑Independence period when the colonial power sought to actively create and encourage communal divide in the country. After Independence we have set about healing the wounds of the past and endeavoured to restore our traditions of communal amity and goodwill to their past glory. By and large we have succeeded, although there have been, it must be admitted, some unfortunate setbacks. Rather than being discouraged by such setbacks, it is our duty and commitment to take lesson from them for the future., Speaking in support of the cut‑off date of 15‑8‑1947, a Member of Parliament, Shrimati Malini Bhattacharya, explained: But I think this 15‑8‑1947 is crucial because on that date we are supposed to have emerged as a modern, democratic and sovereign State thrusting back such barbarity into the past once and for all. From that date, we also distinguished ourselves as a State which has no official religion and which gives equal rights to all the different religious denominations. So, whatever may have happened before that, we all expected that from that date there should be no such retrogression into the past., The Places of Worship Act, enacted in 1991 by Parliament, protects and secures the fundamental values of the Constitution. The Preamble underlines the need to protect the liberty of thought, expression, belief, faith and worship. It emphasises human dignity and fraternity. Tolerance, respect for and acceptance of the equality of all religious faiths is a fundamental precept of fraternity. This was specifically adverted to by the Union Minister of Home Affairs in the course of his address before the Rajya Sabha on 12‑9‑1991, stating: I believe that India is known for its civilisation and the greatest contribution of India to the world civilisation is the kind of tolerance, understanding, the kind of assimilative spirit and the cosmopolitan outlook that it shows. The Advaita philosophy clearly says that there is no difference between God and ourselves. We have to realise that God is not in the mosque or in the temple only, but God is in the heart of a person. Let everybody understand that he owes his allegiance to the Constitution, allegiance to the unity of the country; the rest of the things are immaterial., In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15‑8‑1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing confidence to every religious community that their places of worship will be preserved and that their character will not be altered. The law addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level. Those norms implement the Fundamental Duties under Article 51‑A and are hence positive mandates to every citizen as well. The State, by enacting the law, enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism, which is a part of the basic features of the Constitution. The Places of Worship Act imposes a non‑derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is therefore a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non‑retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non‑retrogression as an essential feature of our secular values., In a nine‑Judge Bench decision of the Supreme Court of India in S.R. Bommai v. Union of India, Justice B.P. Jeevan Reddy held: 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. It 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 v. State of Kerala and Indira Nehru Gandhi v. Raj Narain. Any step inconsistent with this constitutional policy is, in plain words, unconstitutional. The Places of Worship Act is intrinsically related to the obligations of a secular State. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution., The observations made on the Places of Worship Act by Justice D.V. Sharma are contrary to the scheme of the law and to the framework of constitutional values. Justice Sharma observed, citing the Gopal Singh Visharad case, that Section 9 is very wide. In the absence of any ecclesiastical courts, any religious dispute is cognizable, except in very rare cases where the declaration sought may constitute a religious rite. The Places of Worship (Special Provisions) Act, 1991 does not debar those cases where a declaration is sought for a period prior to the Act coming into force or for enforcement of a right which was recognised before the Act. This conclusion is directly contrary to the provisions of Section 4(2). Justice Sharma postulated that the Act will not debar cases of the following nature being entertained: (i) where a declaration is sought for a period prior to the enforcement of the Places of Worship Act; or (ii) where enforcement is sought of a right which was recognised before the enforcement of the Places of Worship Act., Section 4(1) clearly stipulates that the religious character of a place of worship as it existed on 15‑8‑1947 shall be maintained as it existed on that day. Section 4(2) specifically contemplates that all suits, appeals and legal proceedings existing on the day of the commencement of the Places of Worship Act, with respect to the conversion of the religious character of a place of worship existing on 15‑8‑1947, pending before any court, tribunal or authority shall abate, and no suit, appeal or proceeding with respect to such matter shall lie after the commencement of the Act. The only exception in the proviso to sub‑section (2) is where a suit, appeal or proceeding is instituted on the ground that the conversion of the religious character of a place of worship had taken place after 15‑8‑1947 and such an action was pending at the commencement of the Act. Clearly, in the face of the statutory mandate, the exception carved out by Justice Sharma runs contrary to the terms of the legislation and is therefore erroneous., Sri Gupta contended that the Honourable Apex Court in the Ayodhya Case had clearly held that where a declaration is sought for a period prior to enforcement of the Places of Worship Act or where enforcement is sought of a right which was recognised before the enforcement of the Act, such claims are directly contrary to the provisions of Section 4(2) of the Act of 1991. Thus, once the provisions of Section 4 have been upheld by the Honourable Apex Court in the aforesaid case, the suit filed by plaintiffs claiming the same relief in the instant suit is also barred by the provisions of Section 4 of the Act of 1991., Counsel emphasized that the finding returned in the Ayodhya Case would constitute ratio decidendi, though Section 5 of the Act of 1991 barred the applicability of the Act to the Ram Janmabhoomi‑Babri Masjid case. He then contended that Waqf means permanent dedication by any person of any movable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable. Once it has been held that the mosque was a Waqf in 1937, the matter stood concluded and plaintiffs cannot re‑agitate the same in 1991 by filing Suit No. 610., According to him, continuance of the suit would amount to converting the place of worship and changing its religious character. The allegation in the plaint does not dispute the existence of the mosque over Plot No. 9130, and once it is an accepted fact that the mosque existed on 15‑08‑1947, the suit filed on 15‑10‑1991 after enforcement of the Act on 11‑07‑1991 was barred by the provisions of Section 4., He argued that the revisional court was not correct in setting aside the finding recorded by the trial court on Issue No. 2 and holding that the same has to be decided along with other issues as an issue of law and fact., Sri C.S. Vaidyanathan, learned Senior Counsel appearing for the plaintiffs, submitted that the emphasis of the Act of 1991 is on prohibition of conversion of any place of religious worship, while Section 4 declares that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day. Thus, the vital question is as to what religious character existed on the relevant day. Parties have rival claims with regard to the status and character of the premises in question and therefore such a disputed question of fact cannot be determined as a preliminary issue merely on the basis of pleadings and has to be decided only after considering the evidence., The well‑settled principle of Hindu law 'once a temple always a temple' is a judicially recognised principle of law and therefore the religious character of a Swayambhu deity cannot be lost, not even by destruction., Learned Senior Counsel relied upon observations made by the Honourable Supreme Court in certain paragraphs of the Ayodhya Case, which are as follows: 144. In holding that the non‑existence of the idol at the time of the testator's death did not matter, the opinion of Justice Jenkins, C.J. clearly demonstrates that the endowed property vests in the purpose itself. As he notes, the pious purpose is still the legatee. It is on this purpose that juristic personality is conferred. In recognising the pious purpose as a juristic person, the State gives effect to, and protects the endowment. The idol is the material embodiment of the testator's gift. As the gift is one to ensure the continued worship of the deity, the idol is a physical manifestation of the testator's pious purpose. Where courts recognise the legal personality of the idol they are in effect recognising and protecting the testator's desire that the deity be worshipped. 148. The idol constitutes the embodiment or expression of the pious purpose upon which legal personality is conferred. The destruction of the idol does not result in the termination of the pious purpose and consequently the endowment. Even where the idol is destroyed, or the presence of the idol itself is intermittent or entirely absent, the legal personality created by the endowment continues to subsist. In our country, idols are routinely submerged in water as a matter of religious practice. It cannot be said that the pious purpose is also extinguished due to such submersion. The establishment of the image of the idol is the manner in which the pious purpose is fulfilled. A conferral of legal personality on the idol is, in effect, a recognition of the pious purpose itself and not the method through which that pious purpose is usually personified. The pious purpose may also be fulfilled where the presence of the idol is intermittent or there exists a temple absent an idol depending on the deed of dedication. In all such cases the pious purpose on which legal personality is conferred continues to subsist. 153. The recognition of juristic personality was hence devised by the courts to give legal effect to the Hindu practice of dedicating property for a religious or pious purpose. The founder or testator may choose to dedicate property for the use of a pious purpose. In many of the above cases, this pious purpose took the form of continued maintenance and worship of an idol. There was a clear State interest in giving effect to the will of the founder or testator who has so dedicated property, as well as for ensuring that the property is at all times used for the purpose of the dedication. A legal fiction was created by which legal personality was conferred on the religious or charitable purpose for which the endowment was made. In the case of a dedication for an idol, the juristic personality finds compendious expression in the idol itself. By conferring legal personality, the court gave legal effect to the dedication by creating an entity to receive the properties so dedicated. By stating that the artificial person created is in fact the owner of the dedicated properties, the court guarded against maladministration by the shebait. Even though the artificial legal person cannot sue without the assistance of a natural person, a legal framework was brought into existence by which claims for and against the dedicated property could be pursued. 154. Though conceptually courts attributed legal personality to the intention of the founder, a convenient physical site of legal relations was found in the physical idol. This understanding is reiterated by this Court's observations in Deoki Nandan v. Murlidhar, 1956 SCR 756 : AIR 1957 SC 133 that the idol is a compendious expression of the testator's pious purpose. The idol, as a representation or a compendious expression of the pious purpose (now the artificial legal person) is a site of legal relations. This is also in consonance with the understanding that even where an idol is destroyed, the endowment does not come to an end. Being the physical manifestation of the pious purpose, even where the idol is submerged, not in existence temporarily, or destroyed by forces of nature, the pious purpose recognised to be a legal person continues to exist., He then contended that the effect of a deity being Swayambhu has to be considered in the suit, for which evidence must necessarily be led as it positions the area of Swayambhu beyond property laws. The effect of Swayambhu is that land is inseparable from manifestation., It was next contended that in case of Swayambhu, the specific area or spot on which the temple or remnants of a temple or faith or belief of worshippers exist is considered holy and as one unit. Feelings of devotees are material. A Swayambhu deity is a manifestation of God that is self‑revealed or discovered as existing, as opposed to a traditional idol that is handcrafted and consecrated by the prana‑pratishta ceremony. The word 'swayam' means self or on its own, 'bhu' means to take birth. A Swayambhu deity is one which has manifested itself in nature without human craftsmanship. Common examples are a tree growing in the shape of a Hindu god or goddess or a natural formation such as ice or rock taking the form of a recognised Hindu deity. It is conceivable that in certain instances the land itself would possess certain unique characteristics, for example patterns on a seashore or crop formations representing a manifestation of the divine. In such cases the manifestation is inseparable from the land and is tied up to it. An independent question arises as to whether land can constitute the physical manifestation of the deity. Even if a court recognises land as a manifestation of a deity, because such land is also governed by the principles of immovable property, the court will need to investigate the consequences which arise and analyse the compatibility of the legal regime of juristic personality with the legal regime on immovable property., In the instant case, the manifestation is inseparable from the land and the land is inseparable from the manifestation as per the practice of faith, belief and worship and feeling of devotees., Learned Senior Counsel then submitted that it is a well‑known legal proposition that temples are sacrosanct and there cannot be alienation of a public temple under any circumstance, being res extra commercium. It is not open to a private individual to acquire by prescription any private ownership in regard thereto. The character of a temple as a public temple cannot be taken away by any assertion of private right and there is no evidence that the public have ever been excluded therefrom. During the Mughal invasion, some portion of the temple was destroyed and a disputed structure was raised thereon, but notwithstanding the same, the divine character of the place was not affected and devotees and faithful continued to flock to the premises and offer worship. The place is impressed with divine and sacred character which has been worshipped as possessing divinity and as offering religious blessings without the need for worshipping any idol. Moreover, there is no exclusive possession by Muslims of the disputed area, by ouster of or to the exclusion of Hindus during any period., According to learned Senior Counsel, the religious character of the premises has always been a Hindu place of public worship, which is a composite and integral property considered the most holy, pious and significant place of worship of Hindu devotees and a place of pilgrimage since time immemorial., According to him, continuance of worship by Hindu devotees even after construction of an illegal and unauthorized structure establishes the true nature and religious character of the place as a Hindu place of public worship. Therefore, the religious character of the premises as a Hindu temple was never lost and cannot be lost., Learned Senior Counsel, refuting the arguments from the petitioner side, submitted that certain passages in respect of the Act of 1991 in the Ayodhya judgment are untenable and the observations made therein are completely inapplicable in the instant case., According to him, the judgment itself does not frame any issue, nor invited any argument on the Places of Worship Act. The Honourable Supreme Court decided only those issues as joined by parties. The dispute was confined to Ram Janmabhoomi and no other temple. Hence, the Court had no occasion to go into the question of character of any other temple., Reliance has been placed upon a decision of the Supreme Court in Venkataramana Devaru and others v. State of Mysore and others, 1958 SCR 895. According to him, the Constitution Bench of the Supreme Court held that it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and, on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of parties on the basis of that finding. Thus, the Court could not have gone into any issue touching upon the status or character of any temple in the Ayodhya case, other than Ram Janmabhoomi. The observations relied upon by the petitioner cannot be ratio decidendi and are clearly obiter dicta and are not authoritative., Learned Senior Counsel has relied upon the decisions of the Supreme Court in Jayant Verma v. Union of India, (2018) 4 SCC 743; Career Institute Educational Society v. Om Shree Thakurji Educational Society, 2023 SCC OnLine SC 586; and State of Gujarat v. Utility Users' Welfare Association, (2018) 6 SCC 21., He then submitted that any observation made by the Supreme Court regarding the scope, applicability or interpretation of the Places of Worship Act is merely an opinion which may not be binding, since the question never arose for determination by the Court., Sri Vijay Shankar Rastogi and Sri Ajay Kumar Singh, learned counsels appearing for the plaintiffs, submitted that Section 2(b) provides 'conversion', with its grammatical variations, which includes alteration or change of whatever nature. Clause (c) defines 'place of worship' as a temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof. While Section 3 creates a bar of conversion of a place of worship., Religious character has not been defined in the Act of 1991, as it cannot be confined within verbal terminology. It can only be decided on the facts and circumstances of each case. According to them, as per the definition given in the Act of 1991, the religious character of a place of worship cannot be converted, meaning thereby that the Act creates a distinction between a place of worship and its religious character. There is a distinction between structure and its uses., A structure of a mosque may be used by Shia and Sunni simultaneously; a church may be used by Catholic or Protestant; a temple may also be used by Sanatani Hindus, Sai followers, Satsangis etc. What is important is the use, not the structure. As per the plaint, Hindus are worshipping the entire structure as a temple of Lord Adi Vishweshwara while Muslims are claiming some part thereof is used for offering Namaz., Thus, to determine the religious character of the place, whether it would be that of Hindus or Muslims, it is necessary to adjudicate the entire matter by taking evidence., In the instant case, the character of the structure is also in dispute; the defendant claims it to be a mosque while the plaintiffs claim it to be a temple, and the same can be decided only by taking evidence.
id_1753	2	While the Courts have to see only religious character of a place of worship leaving aside the design, shape or style of its structure. It was next contended that Section 4(1) and 4(2) of the Places of Worship (Special Provisions) Act, 1991 applies only in case of undisputed structure and not in case of disputed structure. It is incumbent upon the trial court to determine the religious character of the place in dispute which can only be done when parties lead evidence as per their pleadings. Further, the bar created under Section 4(1) and 4(2) would not affect the trial of the suit, as Section 4(3)(d) negates or removes the said bar. Acquiescence or silence about the forcible act of the Mughal Emperor in demolishing part of the temple and illegal construction over it will not affect the maintainability of suit., In the Ayodhya case, Section 4(3)(d) of the Act of 1991 was not under consideration, as Section 5 of the Act specifically exempted the Ram Janmabhoomi‑Babri Masjid case, and any observation to the contrary not concerned with the present dispute will not affect the suit in which declaratory relief has been sought for determining the religious character of the disputed place., According to the counsels, the Supreme Court of India can adjudicate upon private property claims that were expressly or impliedly recognised by the British sovereign and subsequently not interfered with after Indian independence. With respect to the disputed property, it is evident that the British sovereign recognised and permitted the existence of both Hindu and Muslim communities at the disputed property when a riot happened in the city of Banaras in respect of the place in dispute and Hindus completely ousted Muslims. A report was submitted by then District Magistrate, Mr. Watson, on 30 December 1809 to the Vice‑President in Council stating that in the disputed place Gyanvapi there existed a very pious temple of Lord Vishwanath of Hindus which was demolished due to religious antipathy by orders of Aurangzeb. But thereafter District Magistrate, Mr. Bird, on 12 March 1810 stated that it should be opened for both communities, the rights of parties though recognised, but not decided., This continued basis of the legal rights of the parties in the present suit and it is these acts that the trial court must evaluate to decide in view of observations of the Supreme Court of India in paragraph 997 of the Ayodhya case. The change of legal regime between the British sovereign and the Republic of India, there exists a line of continuity; Article 372 of the Constitution embodies the legal continuity between the British sovereign and independent India as has been decided in paragraphs 996 and 996.3 of the Ayodhya judgment, which are extracted hereunder: “With respect to the change of legal regime between the British Sovereign and the Republic of India, there exists a line of continuity. Article 372 of the Constitution embodies the legal continuity between the British Sovereign and Independent India.” “These articles in the Constitution evidence a legal continuity between the British Sovereign and the Republic of India.” Moreover, the conduct of the Republic of India subsequent to attaining independence was to uphold private property claims that existed during the rule of the British sovereign. It cannot be said that upon independence all pre‑existing private claims between citizens inter se were extinguished. They were recognised unless modified or revoked by the express acts of the Indian Government. For the present purposes therefore, there is both express and implied recognition that the Independent Indian sovereign recognised the private claims over property as they existed under the British sovereign unless expressly evidenced otherwise. Therefore, the rights of the parties to the present dispute which occurred during the colonial regime can be enforced by this Court today., It was next contended that unless and until the religious character of a place is confirmed then only the bar contained in the Act of 1991 would apply. It is a mixed question of fact and law and cannot be decided without evidence led by parties on specific Issue No. 2 in light of their contention made in their plaint and written statement., Learned counsel addressing the Supreme Court of India on rejection of the plaint and framing of issues submitted that under Order VII Rule 11 of the Code of Civil Procedure, a plaint can be rejected even before the filing of a written statement. However, a plaint can also be rejected once an issue has been framed in regard to the suit being barred by law, by taking a plea in the written statement. In the instant case, both defendants had moved an application under Order VII Rule 11 of the Code of Civil Procedure in the year 1995 but it was never addressed by them and thereafter both defendants filed their written statements and it was on the basis of pleadings of the parties that the trial court proceeded to frame ten issues., According to counsel, Order XIV Rule 1 provides for framing of issues. Sub‑Rule (1) of Rule 1 provides that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Issues are of two kinds, issue of fact and issue of law. The object of framing an issue is to focus upon the question on which evidence has to be led and to indicate the party on whom the burden of proof lies which is necessary in every contested suit. Reliance has been placed upon decisions rendered in the cases of Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 and Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo, (2009) 5 SCC 713., It was next contended that Order XIV Rule 2 of the Code of Civil Procedure stood amended with effect from 1 February 1977 and the amended provision came up for consideration before the Full Bench of this Court in the case of Sunni Central Waqf Board and others v. Gopal Singh Visharad and others, AIR 1991 All 89, and it was held that substitution of the word ‘may’ in place of ‘shall’ makes it discretionary for the court to decide the issue of law as a preliminary issue or to decide it along with other issues. Further, not all issues of law can be decided as preliminary issues and only those issues of law falling within the ambit of Clause (a) and (b) of Sub‑Rule (2) of Rule 2 could be decided., In Sathyanath and others v. Sarojamani, (2022) 7 SCC 644, it was held that only those issues of law can be decided without taking evidence where facts are admitted to both parties and not otherwise. The object of substitution of Sub‑Rule (2) is to avoid the possibility of remanding back the matter after decision on preliminary issues, as it is mandated for the trial court under Order XIV Rule 2 and Order XX Rule 5, and for the first appellate court in terms of Order XLI Rules 24 and 25 to record findings on all issues., Learned counsels then contended that whether the religious character of the place in dispute existed on 15 August 1947 cannot be determined as a preliminary issue under Order VII Rule 11 of the Code of Civil Procedure and the effect of provisions of Order XIV Rules 1 and 2 prior to the 1976 amendment and thereafter. According to them, the decision on Issue No. 2 needs evidence to be led by both parties for determining the fact as to the religious character of the place which existed on 15 August 1947. Reliance has been placed upon decisions of the Supreme Court of India in the cases of Sajjan Sikaria v. Shakuntala Devi Mishra, (2005) 13 SCC 687; Abdul Gafur and others v. State of Uttarakhand and others, (2008) 10 SCC 97; Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510; Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others, (2004) 3 SCC 137; and Fiza Developers & Inter‑Trade (P) Ltd., It was then contended that the object of framing issues is to focus upon the question on which evidence has to be led and to indicate the party on whom the burden of proof lies., Addressing the question as to whether the property in question is a Muslim waqf and a mosque, learned counsels submitted that earlier provisions of the Uttar Pradesh Muslim Waqf Act, 1960 were not applicable to the Hindus. Reliance has been placed upon decisions in the cases of Board of Muslim Wakfs v. Radha Kishan, AIR 1979 SC 289; Ayodhya Prasad v. Additional District Judge, Moradabad and others, 1995 ACJ 1159; and Uttar Pradesh Sunni Central Board of Wakfs v. ADJ Court No. 3, Muzaffarnagar and another, 2016 (2) ALJ 209., Sri Rastogi submitted that the definition contained in Section 3(r) of the Waqf Act, 1995 provides that waqf means the permanent dedication by any person of any movable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable and includes a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cessation. According to him, upon enforcement of the Act of 1995, by virtue of Section 112(3) any law which corresponded to the Act of 1995 and was in force in any State stood repealed. Thus, after enactment of the Act of 1995, the Uttar Pradesh Waqf Act, 1960 stood repealed., He then contended that the Supreme Court of India in Punjab Waqf Board v. Sham Singh Harike, 2019 (1) ARC 511 SC had observed that before issuing a notification under Section 5(2) of the Waqf Act, notice to the person affected was necessary to be issued, and if notice has not been issued, the Waqf Act is not binding on strangers. Petitioners have not placed on record any iota of proof by document that either under the Waqf Act, 1995; Waqf Act, 1936 or Uttar Pradesh Muslim Waqf Act, 1960, the Board initiated its enquiry for identifying waqf property and the Board had submitted its report to the State Government and after the satisfaction of the State the notification was published. Thus, there has been no exercise done by the Waqf Board under the provisions of law. The alleged waqf to have been created is not binding on Hindus i.e. plaintiffs, and the disputed property is not a waqf property nor can it be called a waqf of Muslims., He further emphasized that the entire property in the Gyanvapi compound was a very big temple of the self‑manifested Lord Vishweshwar before the advent of Muslim rule in the country and it has Puranic and historical evidences. By demolishing a part of the structure of the temple and changing its physical structure can never change its religious character. He has relied upon the farman issued by Emperor Aurangzeb on 18 April 1669 which has been published in Ma‑Asir‑e‑Alamgiri, which is extracted hereunder., Reliance has been placed upon the decision of the Supreme Court of India rendered in the case of Gulam Abbas and others v. State of Uttar Pradesh and others, (1982) 1 SCC 71 which is in regard to certain waqfs of District Varanasi relied upon by the parties upon a notification dated 26 February 1944 which was doubted by the Supreme Court in its judgment., It was then contended that the power of superintendence conferred under Article 227 of the Constitution of India is to be exercised most sparingly and within the parameters which have been summarised in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, and also in the case of Radhey Shyam and another v. Chhabi Nath and others, (2015) 5 SCC 423., According to him, counsel for petitioners have not been able to point out any material error or illegality in the order passed by the trial court warranting interference of this Court for exercising power under Article 227 of the Constitution of India., Replying to the argument from the petitioner side as to the applicability of the judgment rendered in the case of Din Mohammad (supra), learned counsel for the plaintiffs submitted that in the original suit No. 62 of 1936 filed by Din Mohammad, Mohammad Hussain and Mohammad Jakaria, Hindus were not parties. The petitioner, Anjuman Intezamia Masjid, was though a party but during the course of hearing it was exempted and the name and address of the petitioner in the said suit was cut out in the original suit in red ink. The suit was not filed in representative capacity but the reliefs were claimed personally by three Mohammedans. The Hindus had applied for being made party but their application was rejected and the High Court upheld the order of the trial court. In the said suit, ten issues were framed and the judgment rendered by the trial court affirmed by the appellate court is not binding upon Hindus. Moreover, the petitioner was also not a party to that suit and the relief granted was for offering Namaz which was an individual right claimed by plaintiffs of that suit and would not affect the present suit, as the rights of Muslims in general have not been decided., It is further contended that the judgment of Din Mohammad (supra) would not operate as res judicata within the meaning of Section 11 of the Code of Civil Procedure as neither the matter directly nor substantially in issue has been directly and substantially in issue in the former issue between the same parties litigating under the same title., Sri Naqvi, Senior Counsel appearing in Case No. 3844 of 2021 submitted that a suit for identical relief had already been filed by one Rakhi Singh and others being Suit No. 18 of 2022 in respect of the same plot No. 9130, wherein an application for appointment of Advocate Commissioner to make local inspection of property was moved invoking provisions of Section 75 and Order XXVI Rules 9 and 10 read with Section 151 of the Code of Civil Procedure. The application was allowed. The order passed by the Civil Judge was challenged before this Court by the petitioner, which was upheld vide order dated 21 April 2022. Thereafter the matter was carried to the Supreme Court of India and on 4 August 2022 the Supreme Court confirming the order for survey held that the direction issued by the trial court under Order XXVI Rule 10A directing for scientific investigation by the Archaeological Survey of India needs no interference., He thus contended that the order dated 8 April 2021 passed by the trial court for conducting survey by the Archaeological Survey of India by scientific methods as well as excavation is of no consequence and should be set aside once the ASI is already conducting survey of the same plot No. 9130. According to him, the report submitted by ASI can be easily read in the present suit and no further directions are required to be carried out as per the order dated 8 April 2021., Sri Punit Kumar Gupta, counsel appearing in Case No. 3562 of 2021 submitted that the petitioner had objected to the prayer for survey by ASI on the ground that a survey by commission can be issued only to supplement the evidence and in the present suit none of the parties had led evidence therefore the application is premature. According to him, the trial court while allowing the application for ASI survey had gone to the extent of holding that circumstances of the case are such that none of the parties are in a position to lead evidence and to prove their assertions and counter‑assertions. He then contended that the direction contained in Clauses 5 and 6 of the order demonstrates the bias of the trial court below. He further contended that the court can order for scientific investigation under Order XXVI Rule 10A if it finds that the place in dispute involves such a question which requires such investigation. The opinion, according to him, has been formed by the trial court on its own., He lastly invited the attention of the Supreme Court of India to Rule 15 of Order XXVI of the Code of Civil Procedure which provides for expenses to be borne by the party for commission to be paid into the court, but in the instant case the court had directed that cost was to be borne by the Archaeological Survey of India., Sri Vaidyanathan, Senior Counsel and Vijay Shankar Rastogi, one of the plaintiffs to the suit, submitted that the case of the plaintiffs in the plaint is that Mughal Emperor Aurangzeb issued a farman to the effect of demolishing the temple of the self‑manifested Lord Vishweshwar at Kashi and get a mosque constructed at the very same place. His commandants partly destroyed the temple of Lord Vishweshwar and erected the disputed structure with the ruins of the temple. According to the plaintiffs, beneath the disputed structure the remnants of the ancient temple of Lord Vishweshwar still exist in the form of cellars and towards the west thereof debris of the old temple exist. The western wall of the temple is also in existence and three doors of the self‑manifested Lord Vishweshwar have been closed which can be seen with the naked eye. The lingam of about 100 feet height is still in existence beneath the disputed structure and there is a place and sight of a parikrama path of the self‑manifested Lord Vishweshwar around the old temple and the plaintiffs and other Hindus are performing darshan, pooja etc. and doing circumambulation (parikrama)., There is a denial to this fact in the written statement; therefore, one of the core issues which goes to the root of the dispute is whether the disputed structure was constructed after demolishing an existing temple and this question can only be decided by a competent court if expert evidence of archaeologists and historians is led and tested in cross‑examination., It was after considering the pleadings of the parties that the trial court decided for scientific investigation by an expert body. It was on account of the interim order, which was operating in the matters and the proceeding was stayed, that in a subsequent suit the trial court had directed for conducting a survey of the property at settlement plot No. 9130 which has been affirmed by the order of the Supreme Court of India, and the ASI is conducting a survey of the portion of the suit property, and the report is awaited., Both counsels submitted that the suit filed by the plaintiffs in the year 1991 is in representative capacity, while the subsequent suit filed in the year 2022 has been filed in individual capacity and therefore the nature, prayer and even the extent of suit property is different in both suits. The scope of survey directed in the instant case is much larger and has bearing on the suit compared to the other suit filed in the year 2022., The counsels fairly submitted that there may be some overlapping in the direction for conducting survey but evidently the scope of survey in the instant case is much larger and in respect of a larger extent of land. It was lastly contended that the ASI may be directed to file its report in the present suit as well and also be directed to carry out further survey, if required, in compliance of the order passed by the trial court on 8 April 2021, which has been left out in the survey already conducted by them in the other suit (Original Suit No. 18 of 2022 (693/2021))., Senior counsel appearing for the petitioner submitted that there arose no occasion for the trial court on 4 February 2020 for rejecting application No. 270‑Ga and 274‑Ga filed by petitioner‑defendant Nos. 1 and 2 and allowing the application of the plaintiff 277‑Ga and directing for proceedings in Suit No. 610 of 1991 and posting the matter on 17 February 2020. Once the proceedings of Suit No. 610 of 1991 was stayed in Writ No. 32565 of 1998, the trial court should have restrained itself in proceeding with the matter till the writ petition filed by defendant Nos. 1 and 2 was decided finally and the issue relating to applicability of the Act of 1991 was decided., Sri Ajay Singh, counsel for the plaintiff submitted that in view of the judgment of the Supreme Court of India rendered in the case of Asian Resurfacing of Road Agency Pvt. Ltd. (supra), the interim order had come to an end after expiry of six months and thus the trial court rightly proceeded with the matter. He then contended that as no interim order was operating in the matter, which is evident from the order sheet, and the judgment was reserved on 15 March 2021 in Case No. 3341 of 2017 and 234 of 2021, the trial court on 8 April 2021 directed for survey by ASI., According to him, in the instant case the effect and operation of the order dated 4 February 2020 was stayed on 26 February 2020 and the matter was posted for 17 March 2020. On 17 March 2020 the interim order was extended till 15 April 2020 but on 15 April 2020 the interim order was never extended. This Court taking suo motu action in PIL No. 564 of 2020 had extended all the interim orders at all levels. But the said PIL was disposed of on 5 January 2021. However, vide order dated 24 April 2021 the order dated 5 January 2021 was recalled and all the interim orders which were subsisting on 15 March 2021 stood extended till 31 May 2021. But in the instant case and the other connected cases, the interim orders were not subsisting on 15 March 2021 and as such they never stood extended in view of the order passed by the Division Bench in PIL No. 564 of 2020 on 24 April 2021., According to him, the trial court had rightly proceeded on 8 April 2021 with the matter. He has also relied upon the order passed on Miscellaneous Application No. 890 of 2021 in the matter of Asian Resurfacing of Road Agency Pvt. Ltd. (supra) by the Supreme Court of India on 2 July 2021 whereby the Supreme Court had held that whatever stay was granted by any court including the High Court automatically expires upon the expiry of a period of six months, and unless an extension is granted for good reason as per the judgment of the Supreme Court, within the next six months the trial court is, on the expiry of the first period of six months, to set a date for trial and go ahead with the same., It was lastly contended that the above petition has lost its significance in the light of the order passed by the Division Bench in PIL No. 564 of 2020 as well as orders passed by the Supreme Court of India on 2 July 2021 in the matter of Asian Resurfacing of Road Agency Pvt. Ltd. (supra)., I have heard respective counsel for the parties and perused the material on record., Parties to the lis before this Court have come up with different interpretation to the enactment and provisions of the Places of Worship (Special Provisions) Act, 1991. The emphasis of the plaintiffs to the suit is that the enactment of the Act of 1991 in no way bars or restricts the institution of Suit No. 610 of 1991 for claiming relief mentioned therein. According to them, none of the provisions of the Act are applicable to the dispute between the parties, and the same has to be tried without taking cognizance of the same., On the other hand, defendants, who are petitioners before this Court, vehemently opposed the institution of the suit and its trial on the ground that the statement of object and reason for enactment of the Act of 1991 was to prohibit such type of vexatious litigations and provisions of Sections 2, 3 and 4 completely oust the jurisdiction of the trial court in entertaining the suit instituted by the plaintiffs., Two of the cases under Article 227, No. 3341 of 2017 and 234 of 2021, having been filed by defendant No. 1 and 2, assail the order passed by the trial court as well as the revisional court on 18 October 1997 and 23 September 1998 on the premise that Issue No. 2 framed by the trial court has to be decided on the basis of provisions of Section 4 of the Act of 1991 and the plaint deems to be rejected in view of Order VII Rule 11 of the Code of Civil Procedure., While the other two cases under Article 227, No. 3844 of 2021 and 3562 of 2021, assail the order passed by the trial court on 8 April 2021 directing for scientific survey by ASI under the provisions of Order XXVI Rule 10A. Matter under Article 227, No. 1521 of 2020 challenges the order passed by the trial court on 4 February 2020, whereby the applications moved by defendants have been rejected and the trial of the suit has proceeded., The three questions which require adjudication by this Court are: (1) Whether the provisions of the Places of Worship (Special Provisions) Act, 1991 apply to Suit No. 610 of 1991, and the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure? (2) Whether the order passed by the trial court directing for scientific survey under Order XXVI Rule 10A on 8 April 2021 warrants any interference by this Court exercising jurisdiction under Article 227 of the Constitution of India? (3) Whether the court below has proceeded with Suit No. 610 of 1991 in defiance of the interim order of this Court?, The first question which arises for consideration is as to whether Suit No. 610 of 1991 is barred by provisions of the Act of 1991, and the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure., The petitioners before this Court who are defendants in the suit had raised a preliminary objection by filing an application under Order VII Rule 11(d) of the Code of Civil Procedure in the year 1995 that the plaint is hit by provisions of the Act of 1991. However, defendant No. 1 on 15 November 1996 and defendant No. 2 on 23 February 1995 filed their respective written statements. It was on the basis of pleadings of the parties that ten issues were framed by the trial court on 17 July 1997., Issue No. 2 was as to whether the suit in view of Section 4 of the Act of 1991 was barred and the plaint was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure. The trial court fixed 21 August 1997 for hearing on the preliminary issue No. 1 and 2. The trial court on 18 October 1997 held that relief (a) and (c) were not barred by provisions of Section 4 of the Act of 1991, but relief (b) was hit by the aforesaid section and it was directed to delete the relief (b) from the plaint., All three revisions were decided by a common order on 23 September 1998 which is subject‑matter of this Court., An effort has been made by defendants to demonstrate that the statement and object of the Act clearly spells out that a place of worship that existed on 15 August 1947 shall exist and there is a complete prohibition on conversion of such place of worship. Section 3 bars conversion of a place of worship, while Section 4(1) and 4(2) provides for maintaining the status as existed on 15 August 1947. Further, Section 5 specifically provides for exemption of the application of the Act in respect of the dispute relating to the Ram Janmabhoomi‑Babri Masjid., On the contrary, an emphasis has been laid by plaintiffs’ counsel to demonstrate that the Act of 1991 is not applicable in the instant case as there is no conversion of a place of worship nor is there a change of religious character. To understand better, a glimpse of Sections 2(b), (c), 3, 4 and 5 is necessary, which are extracted hereunder: Section 2(b) conversion, with its grammatical variations, includes alteration or change of whatever nature; (c) place of worship means a temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called. Section 3. Bar of conversion of places of worship. No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof. Section 4. Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts, etc. (1) It is hereby declared that the religious character of a place of worship existing on the 15th day of August 1947 shall continue to be the same as it existed on that day. (2) If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority: Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August 1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub‑section (1). (3) Nothing contained in sub‑section (1) and sub‑section (2) shall apply to, (a) any place of ...
id_1753	3	While Sub‑Section (c) defines place of worship as a temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, Section 3 places an embargo upon the conversion of place of worship and mentions that no person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination. Section 4(1) maintains that the religious character of a place of worship existing on the 15th day of 1947 shall continue as it existed on that day. Section 4(2) specifically mentions that on the date of commencement of the Places of Worship (Special Provisions) Act, 1991, that is 18 September 1991, if any suit, appeal or any proceeding with respect to conversion of religious character of any place of worship existing on the 15th day of 1947 is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority., From the simple reading of Section 4(1) and 4(2) it is clear that the religious character of a place of worship existing on the 15th day of 1947 is to continue and that any proceedings pending on the date of enactment were to abate. Further, a restriction has been imposed under Sub‑Section (2) from the further institution of any suit, appeal or other proceedings in respect of such religious character after enforcement of the Act of 1991., The Act clearly defines conversion and place of worship in Section 2(b) and 2(c) but does not define the religious character of a place of worship., The question that crops up for consideration is as to what is the religious character of the place in dispute. Religious character cannot be confined to verbal terminology because the Act has not defined the term; it can only be decided by the facts and circumstances of each case., From the reading of the definitions provided under the Act, it is clear that the Legislature defined place of worship such as temple, mosque, gurudwara, church, monastery etc., but not the religious character, maintaining a distance between the two. It is the court that has to find out, from the facts and circumstances of each case, the religious character of the place of worship., In the instant case, plaintiffs have sought a declaration in respect of Plot No. 9130, 9131 and 9132 claiming it to be the entire area of the temple of Swayambhu Lord Adi Vishweshwar since Satyug up to now. The dispute is only to the part of the entire area, i.e. Plot No. 9130, which is claimed to be part of the Gyanvapi compound and the temple that stood there and was brought down by the Farman of Emperor Aurangzeb in the year 1669., An effort has been made by plaintiffs to establish that the religious character of the temple has not changed even by the alleged erection of a mosque after demolition of the temple by invaders. Emphasis has been laid on the judicially recognised principle that once a temple, always a temple, and therefore the religious character of the Swayambhu deity cannot be lost even by destruction., The Supreme Court of India in the Ayodhya Case, in paragraphs 233 and 237, while considering a Swayambhu deity, held that a Swayambhu deity is a manifestation of God, i.e., self‑revealed or discovered as existing as opposed to a traditional idol that is handcrafted and consecrated by a prana pratishtha ceremony. The Court further held that the effect of Swayambhu is that land is inseparable from the manifestation, and that manifestation is inseparable from the land as per the practice of faith, belief, worship and feelings of devotees., While delivering the Tagore Law Lectures, Dr B. K. Mukherjee, former Chief Justice of India, published as The Hindu Law of Religious and Charitable Trusts, described that from very early times religious and charitable institutions in this country came under special protection of the ruling authority and that the duty of the King was to protect endowments based on immemorial customs which were sacred as written texts. He further explained that images, according to Hindu authorities, are of two kinds: the first is known as Swayambhu or self‑existent or self‑revealed, while the other is pratisthita or established. A Swayambhu or self‑revealed image is a product of nature, which is anadi or without any beginning, and worshippers simply discover its existence; such an image does not require consecration of pratistha. All artificial or man‑made images require consecration and, according to the Matsya Purana, may be made of gold, silver, copper, iron, brass, bell metal, stone, wood, conch shell, crystal or even earth (Padma Purana Uttara Khanda)., Some persons worship images printed on wall and canvas, says the Brihata Purana, and some worship the spheroidal stones known as Saligram (Matsya Purana). Generally speaking, Puranic writers classify artificial images under two heads: (1) Lepya and (2) Lekhya., It is no doubt true that there is a distinction between the structure and its uses. A structure can be used differently from its design, shape or style. According to the plaint, Hindus are worshipping the entire structure as a temple of Lord Adi Vishweshwar while Muslims are claiming some part for offering namaz. The character of the structure is also under dispute, as one claim it to be a temple while the other claims it to be a mosque. Only the religious character of the place of worship has to be seen while deciding Issue No. 2., To arrive at the finding as to the religious character of the place in dispute, an adjudication is required by a competent court, especially when there is a dispute as to the structure. Section 4(1) and 4(2) of the Places of Worship (Special Provisions) Act, 1991 apply to the undisputed structure. Merely asserting that a certain place is used as a place of worship by a certain section of persons would not declare the religious character of that place. The Act was promulgated with the object to set at rest the controversies arising from time to time for conversion of place of worship, and the Government felt that such conversion should be prohibited., Conversion has been defined under the Act and includes alteration or change of whatever nature. However, in the instant case the relief sought by plaintiffs is not the conversion of any place of worship; rather, a declaration has been sought as to the religious character for part of the Gyanvapi compound comprising a large area of 1 Bigha, 9 Biswa and 6 Dhoor forming settlement Plot No. 9130, 9131 and 9132, existing since Satyug till date., According to the plaintiffs, the religious character has never changed and the Gyanvapi compound is the place of Adi Lord Vishweshwar; raising an alleged mosque in part of it will not change the character., The defendants, relying on the decision rendered in Din Mohammad (supra), emphasised that the religious character of the disputed place already stands settled and that there is no need for a declaration by a competent court., It is on the basis of claim and counter‑claim by the parties, and the lack of clarity under the Act of 1991, that Issue No. 2 cannot be decided solely on the basis of the provisions of Section 4 of the Act. It requires adjudication by the court, which can only be done once the parties lead evidence., Had there been no ambiguity in the Act by defining the religious character of a place of worship on 15 August 1947, there would have been no difficulty in deciding Issue No. 2 on the basis of Section 4., Since the defendants do not claim the entire Gyanvapi compound and do not dispute the religious character of the Swayambhu Adi Vishweshwar temple, the disputed structure standing on Plot No. 9130 cannot at this stage be said to have the religious character of a mosque., The decision in Din Mohammad (supra) does not lay down the religious character of the disputed place; it only permits plaintiffs therein to offer namaz in the alleged mosque., The object of framing issues is to focus upon the question on which evidence has to be led and to indicate the party on whom the burden of proof lies., Framing of issues is a very important stage in civil litigation and it is the bounden duty of the court that due care, caution, diligence and attention must be bestowed by the presiding judge while framing issues, as held by the Supreme Court of India in Ramrameshwari Devi (supra)., A plaint can be rejected under two circumstances: firstly, by moving an application under Order 7 Rule 11 of the Code of Civil Procedure, or secondly, by getting an issue framed with regard to the suit being barred by law, by taking a plea in the written statement and leading evidence both documentary as well as oral. In the instant case, an application under Order 7 Rule 11(d) of the Code of Civil Procedure was never pressed and issues were framed. The trial court took Issue Nos. 1 and 2 as preliminary issues, decided Issue No. 2 and held that relief (b) was hit by the provisions of Section 4. The order of the trial court was reversed by the revisional court and it was directed to decide Issue No. 2 along with other issues., It is well settled that while considering an application under Order 7 Rule 11 of the Code of Civil Procedure, consideration of the written statement is not a condition precedent and only the averments in the plaint have to be looked into. Once an issue has been framed on the basis of the pleadings of the parties, the court rightly proceeded to decide the issue. In Sajjan Sikaria (supra), the Supreme Court of India held that the direction for considering the question relating to Order 7 Rule 11 CPC as a preliminary issue is not correct as that would necessitate filing of a written statement. It is a settled position in law that while dealing with an application under Order 7 Rule 11 CPC, consideration of the written statement is not a condition precedent and only the averments in the plaint have to be considered. Therefore, that part of the order was set aside and the suit was directed to be taken up for disposal as early as practicable., While dealing with the nature and scope of Section 9 of the Code of Civil Procedure and Order 7 Rule 11 of the Code of Civil Procedure, the Honourable Supreme Court of India in Abdul Gafur (supra) held that civil courts have jurisdiction to try all suits of civil nature, except those whose cognizance is expressly or impliedly barred. The rule of pleading postulates that a plaint must contain material facts. If the plaint, read as a whole, does not disclose a cause of action, it may be rejected under Order 7 Rule 11. The bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. Once the cause of action is disclosed, the suit stands maintainable., While considering the scope of clause (d) of Order 7 Rule 11 of the Code of Civil Procedure in Popat and Kotecha Property (supra), the Honourable Supreme Court of India held that it applies only where the statement made by the plaintiff in the plaint, without any doubt or dispute, shows that the suit is barred by any law in force. The averments in the plaint are germane; pleas taken by defendants in the written statement would be wholly irrelevant at that stage. The Court further observed that for deciding an application under clauses (a) and (d) of Order 7 Rule 11, the averments in the plaint are the only relevant material., A similar view was taken by the Supreme Court of India in Sopan Sukhdeo Sable (supra). Thus, it is clear that the defendants have no case for dismissal of the plaint under Order 7 Rule 11 of the Code of Civil Procedure as they could not make out from the plaint that the suit is barred by any provision of law. Moreover, the issues were framed after considering the pleadings of both parties., Order XIV Rule 2 of the Code of Civil Procedure was amended with effect from 1 February 1977, substituting the word \shall\ with the word \may\ in Sub‑Rule (2). The Full Bench of the Supreme Court of India in Gopal Singh Visharad (supra) held that the substitution makes it discretionary for the court to decide an issue of law as a preliminary issue, and that only those issues of law falling within the ambit of Clause (a) and (b) of Sub‑Rule (2) of Rule 2 could be decided as preliminary issues., Recently, the Supreme Court of India in Sathyanath (supra) held that only those issues of law can be decided without taking evidence where the facts are admitted by both parties. The object of the substitution of Sub‑Rule (2) is to avoid the possibility of remanding the matter after the decision on the preliminary issues. It is mandated for the trial court under Order XIV Rule 2 and Order XX Rule 5, and for the first appellate court under Order XLI Rules 24 and 25, to record findings on all issues. In the instant case, the facts are not admitted by both parties and there is a dispute as to the structure standing over settlement Plot No. 9130. Since there is a dispute as to the admitted fact and the religious character of the place has to be determined, the suit cannot be held to be barred by Section 4 of the Places of Worship (Special Provisions) Act, 1991., The post‑amendment position of Order XIV Rule 2 makes it no longer obligatory for the court to decide issues of law as preliminary issues. Thus, the court postponing a decision on an issue of law does not constitute a jurisdictional error. For deciding Issue No. 2 and finding out the religious character of the place in dispute existing on 15 August 1947, evidence of both parties is required. Possession of a disputed place by a party cannot be evidence defining religious character. The dispute concerns only a part of the large Gyanvapi compound. The defendants' argument that the judgment in Din Mohammad (supra) defines the religious character of the disputed place as a mosque and that the suit filed by plaintiffs can be rejected at the threshold is not acceptable., Evidently, the plaintiffs were never parties in the suit filed in Din Mohammad and two others, in which relief claimed was in an individual capacity for offering namaz in the structure. Moreover, Defendant No. 1/petitioner was also dropped out of those proceedings by orders of the trial court., Section 11 of the Code of Civil Procedure operates on certain governing principles: (i) the matter directly and substantially in issue in the later suit should have been directly and substantially in issue in the former suit; (ii) the former suit should be either between the same parties as in the later suit or between parties under whom they or any of them claim, litigating under the same title; (iii) the court which decided the former suit should be competent to try the subsequent suit; and (iv) the issue should have been heard and finally decided by the court in the former suit., Both plaintiffs and defendants were not parties in the Din Mohammad suit. Moreover, the present suit has been filed under Order 1 Rule 8 of the Code of Civil Procedure, while the 1936 suit was filed in an individual capacity., Thus, it is clear that since the parties to the present litigation were not parties to the Din Mohammad suit, the religious character of the disputed structure cannot be termed a mosque, as the relief granted there was in persona to the plaintiffs therein., Another argument raised by the defendants is that the property in dispute is a Muslim waqf and a mosque, emphasizing that the judgment in Din Mohammad speaks about a mosque and that the plaintiffs therein were granted permission to offer namaz at the mosque., The plaintiffs, while opposing this argument, submitted that Section 3(r) of the Waqf Act, 1995 defines waqf as a permanent dedication by any person of any movable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable. According to them, there is no material on record to demonstrate that a waqf was created by dedicating the property and complying with the provisions of Section 5(2) of the Act of 1995., According to the plaintiffs, it was on the Farman of Emperor Aurangzeb that the temple of Lord Adi Vishweshwar was brought down, and from the ruins of the temple an alleged mosque was constructed; there was no creation of a waqf by the Emperor nor subsequently., Recently, the Supreme Court of India, while considering the effect of Section 5(2) of the Waqf Act in Sham Singh Harike (supra), held that before issuance of a notification under Section 5(2) of the Act, notice to the person affected must be issued by the Board, and if no notice is issued, the notification is not binding upon them., Section 36 of the Waqf Act, 1995 mandates registration of every waqf, whether created before or after the commencement of the Act, at the office of the Board., Whether the Waqf Act of 1936, the Uttar Pradesh Muslim Waqf Act, 1960 or the Act of 1995 was complied with by Defendant No. 2 is a matter of fact that can only be adjudicated by the trial court when parties lead evidence. Issues Nos. 5 and 6 have already been framed by the court below in regard to the Waqf Act and require adjudication. Moreover, there is no material on record to demonstrate the creation of a waqf and the construction of a mosque., An argument has been raised by the defendants that, upon promulgation of the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, the temple board manages the temple under that Act, while the mosque is governed by the Waqf Act. Section 4(9) of the Sri Kashi Vishwanath Temple Act defines \temple\ as follows: \Temple means the Temple of Adi Vishweshwar, popularly known as Sri Kashi Vishwanath Temple, situated in the City of Varanasi which is used as a place of public religious worship, and dedicated to or for the benefit of Hindus, as a place of public religious worship of the Jyotirlinga and includes all subordinate temples, shrines, sub‑shrines and the ashthan of all other images and deities, mandaps, wells, tanks and other necessary structures and land appurtenant thereto and any addition which may be made thereto after the appointed date.\, From the reading of the above, it is clear that the State legislature has recognised the deity Adi Vishweshwar Jyotirlinga, also known as Kashi Vishwanath, along with other subsidiary deities existing within the temple complex, including the structure and land appurtenant thereto. The Act received presidential assent on 12 October 1983. The plaintiffs contend that the enactment of the Kashi Vishwanath Temple Act is a sovereign act, and after the fall of the Mughal Empire the property came under the control of the British sovereign and thereafter under the constitutional regime of the Republic of India. In 1950 it came within the jurisdiction of the State of Uttar Pradesh in view of Article 294 of the Constitution of India., With the change of legal regime between the British sovereign and the Republic of India, there exists a line of continuity, and Article 372 of the Constitution of India embodies the legal continuity between the British sovereign and independent India. Articles 294, 296 and 372 are relevant in the present case and are extracted below: \294. Succession to property, assets, rights, liabilities and obligations in certain cases. As from the commencement of this Constitution (a) all property and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of the Dominion of India and all property and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of each Governor's Province shall vest respectively in the Union and the corresponding State, and (b) all rights, liabilities and obligations of the Government of the Dominion of India and of the Government of each Governor's Province, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations respectively of the Government of India and the Government of each corresponding State, subject to any adjustment made or to be made by reason of the creation before the commencement of this Constitution of the Dominion of Pakistan and of the Provinces of West Bengal, East Bengal, West Punjab and East Punjab. 296. Property accruing by escheat or lapse or as bona vacantia. Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall, if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union: Provided that any property which at the date when it would have so accrued to His Majesty or to the Ruler of an Indian State was in the possession or under the control of the Government of India or the Government of a State shall, according as the purposes for which it was then used or held were purposes of the Union or of a State, vest in the Union or in that State. 372. Continuance in force of existing laws and their adaptation. (1) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority. (2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law. (3) Nothing in clause (2) shall be deemed (a) to empower the President to make any adaptation or modification of any law after the expiration of three years from the commencement of this Constitution; or (b) to prevent any competent legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause. Explanation I. The expression \law in force\ in this article shall include a law passed or made by a legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas. Explanation II. Any law passed or made by a legislature or other competent authority in the territory of India which immediately before the commencement of this Constitution had extra‑territorial effect as well as effect in the territory of India shall, subject to any such adaptations and modifications as aforesaid, continue to have such extra‑territorial effect. Explanation III. Nothing in this article shall be construed as continuing any temporary law in force beyond the date fixed for its expiration or the date on which it would have expired if this Constitution had not come into force. Explanation IV.
id_1753	4	An Ordinance promulgated by the Governor of a Province under section 88 of the Government of India Act, 1935, and in force immediately before the commencement of this Constitution shall, unless withdrawn by the Governor of the corresponding State earlier, cease to operate at the expiration of six weeks from the first meeting after such commencement of the Legislative Assembly of that State functioning under clause (1) of article 382, and nothing in this article shall be construed as continuing any such Ordinance in force beyond the said period., These articles evidence a legal continuity between the British sovereign and Republic of India, moreover, the conduct of Republic of India and subsequent to attaining independence was to uphold private property claims that existed during rule of British sovereign., After independence, all pre-existing private claims between citizens were not extinguished, they were recognised unless modified or revoked by express Act of Indian Government. The rights of the parties to the lis which accrued during colonial regime can be enforced by the trial Court of the day, as held by Supreme Court of India in paragraph number 996.3 of Ayodhya case. The British sovereign never recognised the legal existence of the alleged mosque, and in their written statement filed in case of Din Mohammad (above), the said fact was denied., Another point canvassed by plaintiffs counsel to the nonapplicability of Section 3, 4(1) and 4(2) is on the basis of non obstante clause contained in Sub-Section (3) of Section 4, that Section 4(1) and 4(2) will not apply to any conversion of place effected before such commencement by acquiescence. The bar contained in Section 3, 4(1) and 4(2) is negatived by Sub-Section (3)(d) of Section 4, as the forcible act of Mughal Emperor in demolishing part of temple, and thereafter raising illegal construction would not affect the maintainability of suit., The Act of 1991 is not an absolute bar upon the parties approaching the courts after its enforcement seeking their right as to place of worship or defining religious character of any place of worship. Sub-Section (3) of Section 4 enumerates certain cases in which the parties can approach the court for redressal of their grievance. Sub-Section (3)(d) is one of those case, where conversion has taken place much before the commencement of the Act and a party had not approached the court, the acquiescence or silence would not bar the action of such party., As religious character has not been defined under the Act, and the place cannot have dual religious character at the same time, one of a temple or of a mosque, which are adverse to each other. Either the place is a temple or a mosque., The evidence of entire Gyanvapi compound detailed in Schedule-B of the plaint is necessary to be taken while determining religious character. The revisional court had rightly proceeded to hold that Section 4 of the Act of 1991 is not applicable in the instant case as the religious character of the place in dispute has to be determined., Reliance placed by defendants upon certain paragraphs of Ayodhya case does not help their case as Section 5 of the Act of 1991 clearly bars the application of the Act to Ramjanmabhoomi- Babri Masjid case., The Supreme Court of India in case of Career Institute Educational Society (above) had clearly upheld the inversion test to identify whether a decision is ratio decidendi or obiter dicta. Relevant paragraphs 6, 7 and 8 are extracted hereunder: 6. The distinction between obiter dicta and ratio decidendi in a judgment, as a proposition of law, has been examined by several judgments of this Court, but we would like to refer to two, namely, State of Gujarat v. Utility Users' Welfare Association (2018) 6 SCC 21 and Jayant Verma v. Union of India (2018) 4 SCC 743. 7. The first judgment in State of Gujarat (above) applies, what is called, the inversion test to identify what is ratio decidendi in a judgment. To test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. 8. In Jayant Verma (above), this Court has referred to an earlier decision of this Court in Dalbir Singh v. State of Punjab to state that it is not the findings of material facts, direct and inferential, but the statements of the principles of law applicable to the legal problems disclosed by the facts, which is the vital element in the decision and operates as a precedent. Even the conclusion does not operate as a precedent, albeit operates as res judicata. Thus, it is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge's decision binding as a legal precedent is the principle upon which the case is decided and, for this reason, it is important to analyse a decision and isolate from it the obiter dicta., Thus, I find that religious character of the disputed place as it existed on 15.08.1947 is to be determined by documentary as well as oral evidence led by both the parties. Unless and until the court adjudicates, the disputed place of worship cannot be called as a temple or mosque., This Court finds that judgment and order dated 23.09.1998 passed by revisional court needs no interference by this Court exercising power under Article 227 of the Constitution of India, as the same has to be exercised most sparingly and within the parameters laid down by Supreme Court of India in case of Shalini Shyam Shetty (above) and Radhey Shyam (above)., Now coming to the second question as to whether any interference is required by this Court against the direction issued for scientific survey under Order XXVI, Rule 10-A?, It had been contended on behalf of defendant no.1 that already another Suit No.18 of 2022 in respect of same plot No.9130 has been instituted by one Rakhi Singh and others wherein application for scientific survey was allowed by the trial Court and the order has been affirmed by Supreme Court of India on 04.08.2022, thus, there is no requirement for any survey to be conducted again for the same disputed place. However, counsel for defendant No.2 had submitted that such direction was against the Rule, as evidence had not been led by any of the parties, question for scientific survey does not arise. Moreover, scientific survey under Order XXVI, Rule 10-A can only be ordered in case it is found that dispute involves such a question, which requires such investigation., On the contrary, Sri Vaidyanathan, Senior counsel appearing for plaintiffs had fairly submitted that there may be some overlapping in the direction for conducting survey but evidently the scope of survey in the instant case is much larger. However, it was submitted that Archaeological Survey of India may be directed to submit its report in the present suit also and if required, a direction may be issued for further survey complying the order dated 08.04.2021, which has been left out in the survey already conducted., This Court finds that the plaintiffs had filed the suit in the year 1991, after the decision on the preliminary issue no.2, the two cases were filed by the defendants being matter under Article 227 in the year 1998 & 1999, in which proceedings of the suit No.610 of 1991 was stayed. It was on the directions of the Supreme Court of India issued in case of Asian Resurfacing of Road Agency Pvt. Ltd. (above) that proceedings started again before the trial Court and application for scientific survey was allowed on 08.04.2021. In the meantime, Suit No.18 of 2022 (693 of 2021) was filed by Rakhi Singh and 4 others in the individual capacity claiming certain relief over the same settlement plot No.9130. An application was moved for scientific survey which was allowed and the order passed therein was confirmed by Hon'ble Supreme Court of India., It is not in dispute that scientific survey is being conducted by Archaeological Survey of India on the disputed site plot No.9130 and the orders passed in Suit Nos.610 of 1991 and 18 of 2022 are to some extent overlapping for conducting survey., From the reading of the directions issued on 08.04.2021 by the trial Court especially Clause-VI of the order, the scope of survey of Suit No.610 of 1991 is much wider and in respect of larger extent of land, than the survey which is conducted by Archaeological Survey of India in suit filed by Rakhi Singh., However, as the order passed by the trial Court in case of Rakhi Singh for conducting scientific survey has already been upheld by the decision of Hon'ble Supreme Court of India in special leave petition filed by defendant No.1, this Court finds that direction for compliance of order dated 08.04.2021 for conducting again the scientific survey in respect of plot No.9130 would be a futile exercise., The suggestion made by Sri Vaidyanathan appeals to the Court and Archaeological Survey of India is directed to place its report of scientific survey being done in Original Suit No.18 of 2022 (693 of 2021), in Suit No.610 of 1991 also, which shall be taken into consideration by the court. It is further made clear that in case the trial Court below finds it necessary for adjudication of case that further survey is required to be conducted, which has been left out in the survey already conducted, then in view of the order dated 08.04.2021, it shall issue necessary direction to Archaeological Survey of India for complying the order dated 08.04.2021. Thus, the order dated 08.04.2021 stands modified to such extent., A last ditch effort was made by defendant no. 2 that compliance of Rule 15 of Order XXVI was not made by plaintiffs and expenses were not deposited in the court, on which Sri S.P. Singh, learned Additional Solicitor General of India submitted that the cost was being borne by Archaeological Survey of India and plaintiffs are not required to pay the same., I find that once Archaeological Survey of India is already conducting the scientific survey as per the orders of the trial Court, the plea raised by defendant no. 2 is untenable and of no legal consequence and the same is turned down. Both the matters filed under Article 227 of the Constitution by defendant no. 1 and 2 challenging the very validity of order dated 08.04.2021 passed by trial Court needs no interference by this Court., Now moving to the third question, as to whether the trial Court below has proceeded with the suit in defiance of the interim order granted by this Court in the year 1998., A feeble attempt has been made by counsel for defendant No.1 that trial Court was not correct in rejecting the application moved by defendants for staying the suit proceedings in the light of decision of Supreme Court of India in case of Asian Resurfacing of Road Agency Pvt. Ltd. (above), as the interim orders were operating in the two petitions No.3341 of 2017 and 234 of 2021. The plaintiffs counsel had vehemently opposed the same and submitted that no interim order was operating and the trial Court below had rightly proceeded in the matter and rejected the application filed by defendants on 04.02.2020., After careful scrutiny of the various orders passed by this Court in different cases under Article 227, I find that no interim order was operating and the trial Court below had rightly proceeded with the suit complying the mandate of the Supreme Court of India in case of Asian Resurfacing of Road Agency Pvt. Ltd. (above), the interim order passed in Public Interest Litigation No.564 of 2020 during COVID pandemic also came to an end on 05.01.2021. It was subsequently that the PIL was restored vide order dated 24.04.2021 and order dated 05.01.2021 was recalled and those interim orders which were in existence on 15.03.2021 stood extended till 31.05.2021., In the instant case, the interim order had already come to an end on 15.04.2020 and were never extended. Once the interim order was not extended, the trial Court below had rightly proceeded. Thus, I find that the trial Court below had not defied the interim order of this Court and matter under Article 227 No.1521 of 2020 warrants no interference of this Court., In view of the discussions made above, I come to the conclusion that the present suit filed by plaintiffs being Suit No.610 of 1991 is not barred by provisions of Section 4 of Act of 1991, and the plaint cannot be rejected under Order 7 Rule 11 of the Code of Civil Procedure., The Act does not define religious character, and only conversion and place of worship have been defined under the Act. What will be the religious character of the disputed place can only be arrived by the competent Court after the evidences are led by the parties to the suit. It is a disputed question of fact, as only part and partial relief has been claimed of entire Gyanvapi compound which comprises of settlement plot Nos.9130, 9131 and 9132., Either the Gyanvapi Compound has a Hindu religious character or a Muslim religious character. It cannot have dual character at the same time. The religious character has to be ascertained by the Court considering pleadings of the parties, and evidences led in support of pleadings. No conclusion can be reached on the basis of framing of preliminary issue of law. The Act only bars conversion of place of worship, but it does not define or lay down any procedure for determining the religious character of place of worship that existed on 15.08.1947., More than 32 years have elapsed since filing of Original Suit No. 610 of 1991, and only issues have been framed after filing of written statement by defendants. Proceedings of the suit had remained pending for almost 25 years on the strength of interim order granted by this Court on 13.10.1998., The dispute raised in the suit is of vital national importance. It is not a suit between the two individual parties. It affects two major communities of the country. Due to the interim order operating since 1998, the suit could not proceed. In the national interest, it is required that the suit must proceed expeditiously and be decided with utmost urgency with the cooperation of both the contesting parties without resorting to any dilatory tactics., In view of the fact that the suit is of the year 1991, and more than 32 years have elapsed, this Court directs the trial Court to proceed with the matter expeditiously and conclude the proceedings of Original Suit No.610 of 1991 preferably within a period of next six months from the date of production of a certified copy of this order. It is made clear that the trial Court below shall not grant unnecessary adjournment to either of the parties. In case adjournment is granted, it will be at heavy cost., This Court finds that Case Nos.3341 of 2017 and 234 of 2021 filed by defendant Nos.1 and 2 are for the same relief, which this Court finds cannot be granted to them at this stage and both the matters fail and are hereby dismissed and interim orders stand vacated., Further, identical controversy has been raised through Case No.3562 of 2021 and 3844 of 2021. As the scientific survey is already being conducted by Archaeological Survey of India in Original Suit No.18 of 2022, it is hereby directed that Archaeological Survey of India shall submit the same report in Suit No.610 of 1991 and in case it is found that further survey is required, which have been left out in the survey conducted by Archaeological Survey of India, the trial Court below shall issue necessary directions to carry out further survey in view of order dated 08.04.2021., In view of the above, the order dated 08.04.2021 passed by trial Court below for conducting scientific survey is modified to the extent indicated above. Both the cases filed under Article 227 No.3562 of 2021 and 3844 of 2021 fail and are hereby dismissed. Thus, all the five matters under Article 227 No. 3562 of 2021, 3341 of 2017, 1521 of 2020, 234 of 2021 and 3844 of 2021 warrant no interference by this Court and stand dismissed. Interim order, if any, stands vacated.
id_1754	0	Doctor P. Varavara Rao, aged 83 years, Indian inhabitant, having address at 419, Himasai Heights, Lane No. 6, Jawahar Nagar, Secunderabad and at present residing at Retreat House, Room No. 17, 6, Kane Road, Bandra (West), Mumbai, Maharashtra 400050. Vernon Stanislaus Gonsalves, aged 64 years, Indian inhabitant, having address at C3, New Prem Vasundhara, Mahakali Caves Road, Andheri (East), Mumbai. Arun Thomas Ferreira, aged 46 years, Indian inhabitant, 401, Sharon C.H.S. Annaji Sundar Marg, Charai, Thane 400601. All applicants are at present in judicial custody and lodged at Taloja Central Prison, Navi Mumbai., Applicants versus the State of Maharashtra, the Assistant Commissioner of Police, Swargate, Pune City, Pune; the Director General, National Investigation Agency, CGO Complex, Lodhi Road, New Delhi. Respondents: Mrs. S.K. Talekar, Police Station 1/20; Mister Sudeep Pasbola as well as Mister Neeraj Yadav; Miss Sushan Abraham and Mister Barun Kumar in behalf of Mister R. Sathyanarayanan for applicants. Mistress A.S. Pai, P.P. as well as Mistress Sangita D. Shinde, appellant for State. Mister Sandesh Patil as well as Mister Chintan Shah and Mister Vishal Gautham for National Investigation Agency., The applicants – original applicant numbers 6 to 8 in Criminal Application No. 1458 of 2019, which was decided by the Supreme Court of India, along with Criminal Bail Application No. 2024 of 2019 (Sudha Bharadwaj versus National Investigation Agency and another) by judgment and order dated 1 December 2021 – seek review of the said judgment to the extent Criminal Application No. 1458 of 2019 was rejected., By the judgment and order dated 1 December 2021, the Supreme Court of India was persuaded to allow Criminal Bail Application No. 2024 of 2021, preferred by Sudha Bharadwaj, the co‑accused in NIA Special Case No. 871 of 2020, arising out of FIR No. 4 of 2018, initially registered with Vishrambag Police Station, for the offences punishable under sections 120B, 121, 121(A), 124(A), 153A, 505(1)(b) of the Indian Penal Code, 1860 and sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967. The applicant therein was ordered to be released on default bail., The applicants assert that they are entitled to the same relief as has been granted to the co‑accused Sudha Bharadwaj., The review application arises in the backdrop of the following facts: (a) In the above‑numbered crime, the applicants were arrested on 28 August 2018. The charge‑sheet against the applicants and Sudha Bharadwaj, co‑accused/applicant in Criminal Bail Application No. 2024 of 2021, was filed on 21 February 2019. (b) The applicants preferred an application before the learned Additional Sessions Judge, Pune (Exhibit 169) on 21 June 2019 asserting that they had been in custody since 28 August 2018 and cognizance of the offence had not been taken. Since the applicants were in detention for well over 180 days without cognizance having been taken by the competent court, all applicants are entitled to be released on bail under the provisions of section 167(2) of the Code of Criminal Procedure, 1973 read with section 43‑D(2) of the Unlawful Activities (Prevention) Act. (c) The said application was rejected by the learned Sessions Judge by an order dated 5 September 2019. The applicants preferred Criminal Application No. 1458 of 2019 with a prayer to quash and set aside the order passed by the learned Sessions Judge dated 5 September 2019 and a declaration that the learned Sessions Judge had no power to take cognizance of the offence and that such cognizance was bad in law and illegal. (d) It is contextually relevant to note that in Criminal Bail Application No. 2024 of 2021, the applicant assailed the extension of period for investigation under section 43‑D(2) of the Unlawful Activities (Prevention) Act on the ground that the learned judge who granted the extension on 26 November 2018 was not legally empowered to grant such extension and take cognizance of the offence. (e) The applicant further contended that since the applicant had applied for release on default bail under section 167(2) of the Code prior to the filing of the charge‑sheet, the applicant had a right to be released on default bail and ought to have been so released on 26 November 2018. It was further contended that even if the period of house arrest was excluded from consideration, the period of 90 days would have expired on 25 January 2019 and since the charge‑sheet was filed on 21 February 2019, while the bail application of the applicant (Sudha Bharadwaj) was still pending, the applicant ought to have been released on bail., After an elaborate consideration and analysis of the governing provisions and precedents, the Supreme Court of India was persuaded to allow the Criminal Bail Application No. 2024 of 2019 of the co‑accused applicant and reject the Criminal Application No. 1458 of 2019 of the instant applicants., The observations in the concluding paragraphs of the said judgment read as follows: In the case at hand, with the declaration that the learned Additional Sessions Judge (Shri K.D. Vadane) had no jurisdictional competence to extend the period of detention under section 43‑D(2)(b) of the Unlawful Activities (Prevention) Act, the very substratum of the prosecution case that the right to default bail did not ripen into an indefeasible right, as the period of detention was extended, gets dismantled. The hard facts which thus emerge as far as the application of Sudha Bharadwaj are: (i) the period of detention of 90 days (excluding the period of house arrest) expired on 25 January 2019; (ii) no charge‑sheet was lodged; (iii) there was no lawful order of extension of period of detention; and (iv) an application preferred by Sudha Bharadwaj for default bail awaited adjudication., The matter can be looked at from a slightly different perspective. As the period of detention was extended by the learned Additional Sessions Judge by 90 days, the applicant Sudha Bharadwaj could not have applied for default bail after 25 January 2019 till the filing of the charge‑sheet. Therefore, it cannot be urged that the applicant Sudha Bharadwaj did not make an application during the said period and thus she did not avail the right of default bail. On the touchstone of the guarantee of personal liberty under Article 21 of the Constitution, in our view, to deprive the applicant Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26 November 2018 (Exhibit 43) was premature would be taking a too technical and formalistic view of the matter. In our view, all the requisite conditions to release the applicant Sudha Bharadwaj on default bail stood fully satisfied., As regards the entitlement of the applicant numbers 1 to 8 in Application No. 1458 of 2019 for default bail, a brief revisit to the facts is in order. (i) The applicant numbers 1 to 5, namely Sudhir Prahlad Dhawale, Rona Wilson, Surendra Gadling, Doctor Shoma Sen and Mahesh Raut were arrested on 6 June 2018. (ii) Charge‑sheet against applicant numbers 1 to 5 was filed on 15 November 2018. (iii) Applicant numbers 6 to 8, namely P. Varavara Rao, Vernon Gonsalves and Arun Ferreira were arrested on 28 August 2018. (iv) Charge‑sheet against applicant numbers 6 to 8 in Criminal Application No. 1458 of 2019 and Sudha Bharadwaj, applicant in Criminal Bail Application No. 2024 of 2021, was filed on 21 February 2019., Evidently, neither applicant numbers 1 to 5 claimed to have filed an application for default bail under section 167(2) of the Code after the expiry of the initial period of 90 days from the date of their production before the learned Additional Sessions Judge on 7 June 2018 till the filing of the charge‑sheet on 15 November 2018. Nor did applicant numbers 6 to 8 prefer such application till the filing of the supplementary charge‑sheet on 21 February 2019, after the expiry of the initial period of 90 days., The applicants have, however, approached the Court with a case that they were detained beyond the period of 180 days without the cognizance of the offences having been taken by the competent court. The applicants premised their claim for default bail on the aspect of defect in taking cognizance of the offences. For the applicants, the learned Additional Sessions Judge could not have taken cognizance without the case having been committed by the learned magistrate., In the aforesaid view of the matter, the learned Advocate General and the learned Additional Solicitor General were on a firm ground when they urged that the applicants in Application No. 1458 of 2019 did not avail of the right of default bail by filing an application within the meaning of section 167(2) of the Code. We have seen that where the accused fails to apply for default bail when the right accrues to him and subsequently a charge‑sheet is filed before the magistrate, the right to default bail would get extinguished as it cannot be said that the accused availed of his right to be released on default bail., In this view of the matter, so far as applicant numbers 1 to 5 in Application No. 1458 of 2019 are concerned, the legality of the extension of detention is of no relevance as the applicants did not avail of the right to be released on default bail before the charge‑sheet was filed against them on 15 November 2018. In the case of applicant numbers 6 to 8, though we have held that the order passed by the learned Additional Sessions Judge on the report (Exhibit 33) on 26 November 2018 was without jurisdiction, the said declaration is of no assistance to applicant numbers 6 to 8 as they did not avail of the right to be released on default bail by filing an application after the expiry of the initial period of 90 days and before the lodging of the charge‑sheet on 21 February 2019. Resultantly, a crucial condition of availing of the right so as to cement it as an indefeasible right has not been fulfilled and the right stood extinguished by the filing of the charge‑sheet on 21 February 2019. Failure to take cognizance or defect in jurisdiction in taking cognizance, once the charge‑sheet was laid, does not entail the consequence of default bail., The conspectus of the aforesaid consideration is that Application No. 1458 of 2019 preferred by Sudhir Prahlad Dhawale and seven others is liable to be rejected, whereas Bail Application No. 2024 of 2021 preferred by Sudha Bharadwaj deserves to be allowed., In the backdrop of the aforesaid observations and decision, the applicants have preferred this application asserting that the conclusion arrived at by the Supreme Court of India that the applicants had not availed the right to be released on default bail after expiry of the initial period of 90 days is incorrect. An error has crept into the observations in paragraph numbers 146 and 149, extracted above, and the said error being factual, it is necessary to correct the record of the Supreme Court of India., The applicants claimed that they had also preferred Bail applications No. 4965 of 2018 (applicant No. 1), 4966 of 2018 (applicant No. 2), and 4967 of 2018 (applicant No. 3) for default bail on 30 November 2018., In fact, the order dated 6 November 2019, passed by the Sessions Judge, Pune, rejecting the application for default bail under section 167(2) read with section 43‑D(2) of the Unlawful Activities (Prevention) Act refers to Criminal Bail Application Nos. 4966 of 2018, 4965 of 2018 and 4967 of 2018, the application preferred by the co‑accused Sudha Bharadwaj at Exhibit 43, and application No. 163 and 164. Therefore, it is necessary to correct the factual errors in paragraph numbers 146 and 149, extracted above, and grant default bail to the applicants as well., We have heard Mister Sudeep Pasbola, the learned counsel for the applicants, Mister Sandesh Patil, the learned counsel for the National Investigation Agency and Mistress A.S. Pai, the learned public prosecutor for the State. We have also perused carefully the grounds in this application and its accompaniments., At the outset, Mister Pasbola, the learned counsel for the applicants, submitted that the fact that section 362 of the Code contains an interdict against the review of the judgment or final order except to correct a clerical or arithmetical error does not preclude the High Court from correcting an error as the High Court is a court of record. Thus, this Court, according to Mister Pasbola, would be within its rights in exercising the review jurisdiction so as to correct an apparent error and prevent the miscarriage of justice., To lend support to this submission, Mister Pasbola placed reliance upon the judgments in the cases of M.M. Thomas versus State of Kerala and another; Master Construction Co. (P) Ltd. versus State of Orissa and another; Lilly Thomas and others versus Union of India and others; Meena and another versus Manager, Bajaj Allianz General Insurance Co. Ltd. and others; State of Maharashtra and another versus Anil; Mohd. Wasi and another versus State; Manoharan versus State; Shivdev Singh and others versus State of Punjab and others; Thahsildar versus Pottakalathi Ramkrishnan; and Laxman Bapurao Ghaiwane versus State of Maharashtra., We deem it appropriate to refer to a few of these judgments. In 4(2019) SCC OnLine Bom. 1569; 5(2020) SCC OnLine Bom. 8948; 9RP No. 1220-2019 in WP(C)-32652-2018 dated 17 February 2020; 102012 SCC OnLine Bom. 2313, the case of Shivdev Singh and others (supra), the Constitution Bench of the Supreme Court enunciated that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it., In the case of M.M. Thomas (supra), the Supreme Court again considered the question: Does it mean that the High Court has no power to correct its own orders, even if the High Court is satisfied that there is error apparent on the face of the record? The Supreme Court answered in the affirmative with the following observations: The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar and others versus State of Maharashtra and another, a nine‑Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record., If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record., In the case of Municipal Corporation of Greater Mumbai and another versus Pratibha Industries Ltd. and others, the Supreme Court reiterated the position in law as follows: Insofar as the High Court's jurisdiction to recall its own order is concerned, High Courts are courts of record, set up under Article 215 of the Constitution of India. Article 215 reads: 'High Courts to be courts of record. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.' It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record. This has been recognized in several judgments., The position in law is thus crystallized to the effect that the High Court, being a court of record, is vested with the jurisdiction to recall or review an order if it is satisfied that an apparent error has crept in its order and it is necessary to correct the same for preventing miscarriage of justice., Mister Sandesh Patil, the learned counsel for the National Investigation Agency, attempted to draw a distinction between power to recall or review the order, where initially the jurisdiction is exercised under Article 226 of the Constitution of India and not under section 482 of the Code. Since the order under review has been passed on an application under section 482 of the Code, according to Mister Patil, the bar under section 362 of the Code cannot be obviated by resorting to inherent power under section 482 of the Code., To bolster this submission, Mister Patil placed reliance on the judgment of the Supreme Court in the case of Simrikhia versus Dolley Mukherjee and Chhabi Mukherjee and another, wherein the interplay between jurisdiction under sections 362 and 482 of the Code was expounded: Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code. Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the court cannot give a go‑by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction., The inherent jurisdiction of the High Court cannot be invoked to override the bar of review under section 362. It is clearly stated in Sooraj Devi v. Pyare Lal, [1981] 1 SCC 500 that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage., Reliance was also placed on the judgments in the cases of Hari Singh Mann versus Harbhajan Singh Bajwa and others and State of Punjab versus Davinder Pal Singh Bhullar and others, wherein the aforesaid limitation on the exercise of inherent power under section 482 in the context of the interdict contained in section 362 of the Code was enunciated., We do not deem it appropriate to delve deep into the controversy as regards the source of exercise of power to recall or review the order. In our view, being a court of record and having plenary jurisdiction, if the High Court is satisfied that the order to be reviewed suffers from a manifest error, which is not required to be unearthed by an elaborate process of reasoning and such an order leads to injustice, the High Court would be justified in exercising the power to recall or review the order or pass such order as may be found expedient in the facts of the given case., This takes us to the moot question as to whether the judgment and order in the case at hand warrants review., We have indicated the premise on which the applicants approached this Court in Criminal Application No. 1458 of 2019. In the judgment under review itself, we noted that the applicants sought default bail by filing an application (Exhibit 169) before the learned Sessions Judge on the premise that the orders granting remand, authorizing detention of the accused and taking cognizance were all illegal. For clarity, we extract the observations in paragraph numbers 51 and 52 of the judgment under review, wherein we reproduced the contents of paragraphs 4 to 6 of the application (Exhibit 169) preferred by the applicants before the learned Sessions Judge: Paragraph 4: That cognizance of the present offence has not been taken, and that this Honourable Court has no jurisdiction to take cognizance of the offence at this stage, as no Court of Session can take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a magistrate. Paragraph 5: That it is only when the present case is committed to the Court of Session by a magistrate, and after cognizance of the present offence has been taken, that the applicants/accused may be remanded in custody under any provision in law other than Section 167 of the Code of Criminal Procedure. Paragraph 6: That, in the absence of cognizance being taken of the present offence and in the absence of committal by a magistrate, the applicants/accused, having been in detention for well over one hundred and eight days, are entitled to be released on bail as per the provisions of Section 167(2) of the Code of Criminal Procedure read with Section 43‑D(2) of the Unlawful Activities (Prevention) Act., The learned Sessions Judge rejected the application for default bail observing that the charge‑sheet came to be filed within the extended period and once the charge‑sheet is filed, the accused cannot claim default bail on the ground that cognizance had not been taken within the period of 180 days., In Criminal Application No. 1458 of 2019 also the applicants reiterated that the learned Sessions Judge, Pune could not have assumed jurisdiction and, consequently, the orders granting remand and authorizing custody would all become illegal. The applicants argued that the Sessions Judge could not have taken cognizance of the offence otherwise than following the provisions of section 193 of the Code. The applicants prayed for setting aside the order dated 5 September 2019 passed by the learned Sessions Judge., What is conspicuous by its absence in the application (Exhibit 169) before the learned Sessions Judge and in Criminal Bail Application No. 1458 of 2019 before this Court is the fact that the applicants had preferred an application for default bail after the expiry of the initial period of 90 days and before filing of the charge‑sheet on 21 February 2020. That constitutes the fundamental distinction in the application of the applicant in Criminal Bail Application No. 2024 of 2021 (Smt. Sudha Bharadwaj) and the instant applicants., Specifically noting this distinction, we observed in paragraph No. 134 of the judgment and order dated 1 December 2021, under review, as follows: In the light of significant distinction on the factual score, the claim of the applicants in both applications warrants independent consideration., When confronted with the aforesaid fact‑situation, Mister Pasbola, the learned counsel for the applicants, fairly conceded that it was not the stand of the applicants before this Court while deciding Criminal Application No. 1458 of 2019 that the applicants had also preferred application for default bail after the expiry of the initial period of 90 days and they were also entitled to be released on default bail, on the said count, like the applicant in Criminal Bail Application No. 2024 of 2021., We must record that hearing in Criminal Bail Application No. 2024 of 2021 was initially concluded and thereafter the Bail Application No. 1458 of 2019 was heard. The applicants had the benefit of the submissions canvassed in Criminal Bail Application No. 2024 of 2021. Yet, the fact that the applicants had also filed applications for default bail was not brought on the record by the Court. No oral submission was canvassed., As is evident from the observations in the judgment under review, the application of the applicants proceeded on a totally different premise. The attack was on the ground that though charge‑sheet was filed within the extended period, cognizance was not taken within the said period and therefore the applicants were entitled to be released on default bail., The situation which thus emerges is that the case now sought to be urged was nowhere pleaded or canvassed before the Court till the application came to be decided., On the basis of the material placed before us, over which there is no controversy, we observed in paragraph 146 that neither applicant numbers 1 to 5 claimed to have filed an application for default bail nor the applicant numbers 6 to 8 preferred such application till the filing of the supplementary charge‑sheet. In our view, the observations in paragraphs 146 to 149, to the extent they reflect upon the applicants herein having not availed the right to be released on default bail, are based on the record which the applicants placed before us., In other words, the case now sought to be urged was not at all argued, much less pleaded before the Court. The copies of bail application Nos. 4965 of 2018, 4966 of 2018 and 4967 of 2018, which are annexed to the Review Application, were neither placed before the Court nor referred to in Criminal Application No. 1458 of 2019. We therefore find it difficult to accede to the submission on behalf of the applicants that a factual error had crept in. A re‑hearing of the matter on a point which was not urged is impermissible in law, under the guise of review. Nor can review be claimed merely for a fresh hearing or canvassing a totally new submission. It is trite that disguised as a review, it is not permissible even for an erroneous decision to be re‑heard and corrected., Thus, in our view, no case for exercise of review jurisdiction is made out. Since an apprehension was expressed that the observations in paragraph numbers 146 and 149 of the judgment and order under review may operate to prejudice the applicants, we clarify that the observations were based on the case pleaded, documents placed and submissions canvassed before us while deciding the said application., With the aforesaid clarification, we are inclined to reject the application.
id_1755	0	Mister Kanta Ramchandra Rane, Director of Kaalkaa Real Estates Private Limited, having its registered office at Khar Sant Niwas CHS Ltd., 2nd Floor, Plot No. 3, 14th Road, Khar West, Mumbai 400052, is a petitioner. The other petitioner is Municipal Corporation of Greater Mumbai, located at 5 Mahapalika Marg, Dhobi Talao, Chhatrapati Shivaji Terminus Area, Fort, Mumbai, Maharashtra 400001, together with the Municipal Commissioner and the Executive Engineer, Building Proposals, Municipal Corporation of Greater Mumbai, K Ward, New Majas Market, Plot bearing CTS No. 171/2, 175/A3, Village Majas, Poonam Nagar at J V Link Road, Jogeshwari (East), Mumbai. The respondents are represented by Mister Shardul Singh, as well as Mister Preet Chheda, in behalf of Ms. Prerna Gandhi for the petitioners, and Mister Anil Y. Sakhare, Senior Advocate, as well as Ms. Madhuri More for the respondent Municipal Corporation of Greater Mumbai. Assistant Engineer, Building and Foundations, K West Ward, present in court, is also listed., By this petition filed under Article 226 of the Constitution of India, the petitioners seek a writ of mandamus directing the respondents to consider and decide the new application No. P12001/2022/K/W Ward/FP/342/1/New dated 11 July 2022 under section 44 of the Maharashtra Regional Town Planning Act, 1966, filed by the petitioners in accordance with law and on its own merits., M/s. Artline Properties Private Limited was the original owner of Aadish Bungalow at CTS Nos. 997 and 997A of Juhu, Mumbai. The said company was amalgamated and merged into the petitioner No. 1 company on 18 October 2017. The petitioner No. 1 company is a closely held family concern of Mister Narayan Rane and his family who held shares in the petitioner company. By an indenture made at Mumbai on 25 April 2006, Mister Piroj Nowroji Dagora and Ms. Banoo Nowroji Daroga granted lease of the land and premises measuring about 1080.2 square metres, being part of Plot No. 12 and bearing CTS Nos. 997 and 997A, Santacruz Town Planning Scheme No. 2., The Ministry of Environment and Forests addressed a letter on 11 June 2007 to the Chairman, Maharashtra State Coastal Zone Management Authority and Principal Secretary, Environment Department, granting clearance for the plot bearing CTS Nos. 997 and 997A under the Coastal Regulation Zone Notification, 1991, for construction of a bungalow, subject to various conditions. One condition was that the construction should be undertaken with the Floor Space Index 1.0 as existed on 19 February 1991, and the development should be taken up on the landward side of the existing authorized structure or road., On 23 January 2013, the Municipal Corporation granted a full occupation certificate for a residential building comprising basement, stilt, and first to eighth (part) upper floors on the plot bearing CTS Nos. 997 and 997A. An inspection notice was issued by the Municipal Corporation in the name of the erstwhile company M/s. Artline Properties Private Limited under section 488 of the Mumbai Municipal Corporation Act, 1888, dated 17 February 2022 and 18 February 2022. On 21 February 2022, the Deputy Commissioner, K West Ward of the corporation, together with other officers, visited the premises and made a panchnama/report., On 25 February 2022, the Designated Officer of the corporation issued a notice under section 351(1A) of the Mumbai Municipal Corporation Act calling upon the petitioners to show cause that the work elucidated in the schedule appended to the notice was in accordance with the provisions of sections 337, 342 and 347 of the Act. The corporation alleged various unauthorized additions, alterations and change of use in contravention of the approved plan., The erstwhile directors of M/s. Artline Properties Private Limited, with the consent of the petitioner No. 1 company, replied to the notice on 3 March 2022. On 4 March 2022, the corporation issued a letter directing the noticees to appear before the Office of the Executive Engineer (Building and Foundations), K West Ward on 7 March 2022. On the same day, another notice was issued alleging a change of use in respect of the premises. The corporation thereafter conducted a hearing on 10 March 2022., On 10 March 2022, the petitioners, through their architect, made an application to the Municipal Corporation for retention of the structures that were categorized as unauthorized under section 44 of the Maharashtra Regional Town Planning Act, without prejudice to their rights and contentions for retention of the portion of the premises alleged to be in contravention of the sanctioned plan. Various supporting documents were submitted., The petitioners filed writ petition L-8672 of 2022 in the Bombay High Court impugning the notices dated 25 February 2022 and 4 March 2022 and the orders dated 11 March 2022 and 16 March 2022. By order dated 22 March 2022, the Bombay High Court recorded that the petitioners had already filed a retention/regularisation application under the Maharashtra Regional Town Planning Act and directed that no coercive or precipitatory action be taken by the corporation unless the pending application is decided. The court further clarified that if the decision on the retention application is adverse, no coercive action shall be taken for a further period of three weeks from the date of receipt of the decision., On 21 March 2022, the Sub‑Divisional Officer passed an order directing that the unauthorized constructions be removed or that the officer would remove them on his own motion on 28 March 2022. The petitioners challenged the authority of the Sub‑Divisional Officer by a letter on 22 March 2022 and filed writ petition L-9308 of 2022 in the Bombay High Court. By order dated 29 March 2022, the Bombay High Court disposed of the writ petition as infructuous, keeping all contentions of the parties expressly open, including the petitioners' contention that the respondents have no authority to take such action., The learned Advocate General stated that the right to take action, if and when found requisite, in accordance with law, with respect to the communication/order dated 21 March 2022, is hereby withdrawn, and all contentions of all parties regarding that communication/order are expressly kept open for consideration if and when such action is taken., The District Coastal Zone Monitoring Committee issued a show‑cause notice dated 24 May 2022 calling upon the owners of the premises to show cause why the alleged structures should not be deemed unauthorized on account of being violative of the Ministry of Environment and Forest No Objection Certificate dated 11 June 2007. The petitioners filed writ petition L-18112 of 2022 in the Bombay High Court on 8 June 2022., On 16 June 2022, the Bombay High Court observed that the Maharashtra Coastal Zone Management Authority had received a complaint regarding violation of Coastal Regulation Zone norms in the construction of a bungalow at Juhu, Mumbai and called for records from the Municipal Corporation. The corporation submitted a report, and the authority formed the opinion that there were multiple violations. The petitioner was issued a notice to attend a hearing and explain why the construction beyond the permissible Floor Space Index should not be regarded as unauthorized and therefore in violation of the No Objection Certificate dated 11 June 2007., The Bombay High Court held that the interest of justice would be served if, instead of examining the objection raised by the petitioner regarding lack of jurisdiction, authority and competence of the Committee to issue the impugned notice, the Committee itself would be directed to give its ruling on such objection at the personal hearing. The court disposed of the writ petition by its order dated 16 June 2022., The petitioners, in the meanwhile, submitted various documents in response to the requisition made by the Municipal Corporation by a letter dated 7 April 2022. On 3 June 2022, the Municipal Corporation rejected the application for proposed addition, alteration and retention made by the architect/licensed surveyor of the petitioners under section 44 of the Maharashtra Regional Town Planning Act on various grounds., On 6 June 2022, the petitioners addressed a letter to the Executive Engineer, Building Proposal (WS), stating that the petitioners had claimed Floor Space Index on the plot area leased to M/s. Artline Properties Private Limited and had claimed Floor Space Index only to the extent of the petitioners' entitlement., Being aggrieved by the order dated 3 June 2022 passed by the Municipal Corporation, the petitioners filed writ petition L-19398 of 2022 in the Bombay High Court. The petition was vehemently opposed by the Municipal Corporation. By order dated 23 June 2022, after hearing counsel for both parties, the Bombay High Court rejected writ petition L-19398 of 2022. The petitioners did not challenge that order and prayed for continuation of the interim relief in force while dismissing the writ petition., The petitioner No. 1 filed a fresh application, hereinafter referred to as the second application, on 11 July 2022 for retention of the unauthorized construction. The petitioners' architect followed up with the respondents, who informed the architect that, in view of the order dated 23 June 2022 passed by this Court dismissing writ petition L-19398 of 2022, the Municipal Corporation would require an order or directions from the court to consider the fresh application., On 19 July 2022, the Bombay High Court heard arguments from the petitioners. The petitioners invited the court's attention to the reworking of permissible Floor Space Index annexed at page 214 of the petition and submitted that they do not propose to consider the net area of the entire plot but only the land measuring 532.18 square metres for regularisation. They argued that the benefits under the Development Control and Promotion Regulation, 2034 are available and that the entire construction in excess of the sanctioned plan would be covered, allowing the application for regularisation to be considered by the Municipal Corporation., Counsel for the petitioners submitted that the corporation is not estopped from considering a fresh second application because it is based on fresh grounds or a material change of circumstances, that equitable considerations of estoppel and res judicata do not apply to planning laws, and that a decision of the planning authority cannot be equated with a decree in a suit. They further argued that the function of the planning authority is administrative and open to review, that the application for permission to retain development is statutorily equivalent to an original application under section 44 of the Maharashtra Regional Town Planning Act, and that applying principles of res judicata would be unfair and unjust., Additional submissions by counsel for the petitioners included a prayer that the court grant relief to consider the retention application because the irregularity in the building of petitioner No. 1 was essentially an imbalance of Floor Space Index, that the first application quoted an area of 1,187 square metres whereas the original permission and occupation certificate were for 745.24 square metres, and that the second application now claims only the original 745.24 square metres and invokes regulation 33(20)(B) which permits an additional 0.75 Floor Space Index, thereby removing the defect that led to the rejection of the first application., Counsel for the petitioners relied upon the Supreme Court judgment in Regina (Reprotech (Pebsham) Ltd.) v. East Sussex County Council (2020) SCC OnLine SC 968 and on Rule 10 of the Maharashtra Development Plans Rules, 1970, distinguishing it from the judgments in Mahendra Builders v. State of Maharashtra (2016) SCC OnLine Bom 99 and Overseas Chinese Cuisine (India) Pvt. Ltd. & Anr. v. Municipal Corporation of Greater Bombay (2000) 1 Bom CR 341., Mister Sakhare, senior counsel for the corporation, submitted that the second application filed by the petitioners for retention, being made under different provisions of the Development Control and Promotion Regulation, 2034, is maintainable. He noted that the regulations are silent on the volume of unauthorized construction that can be tolerated and regularised, and that the corporation’s affidavit placed reliance on the Supreme Court judgment in Shree Ram Urban Infrastructure Limited & Another v. State of Maharashtra (2019) 20 SCC 228, which held that there is no defined scale for the quantum of regularisation., The Bombay High Court raised a query as to whether the earlier order directing the petitioners to demolish the structure, which has attained finality, can be automatically stayed until the petitioners obtain the Floor Space Index, Transfer of Development Rights or Built‑Up Area as mentioned in the petition, or until they comply with the premium payment to the corporation. Senior counsel for the corporation submitted that the demolition order would remain suspended until the petitioners comply with all such provisions., Counsel for the petitioners, in rejoinder, submitted that the sanctity of the order passed by the Bombay High Court rejecting the earlier writ petition is not affected even if the second application for retention is allowed and considered by the corporation. He argued that if the second application were on the same ground, principles of constructive res judicata would apply, but not otherwise., The Bombay High Court has heard counsel for the parties at length and will first decide whether the second application dated 11 July 2022 filed by the petitioners through their architect for retention under section 44 of the Maharashtra Regional Town Planning Act is maintainable., It is not in dispute that the petitioners' application for retention under section 44 on 10 March 2022 was rejected by the Municipal Corporation on 3 June 2022. The writ petition L-19398 of 2022 impugning that rejection was dismissed by the Bombay High Court on 23 June 2022. The petitioners did not challenge that judgment before the Supreme Court, although they obtained a stay of its operation for six weeks. The petitioner No. 1, through its architect, made a second application on 11 July 2022 for retention., The question arises whether the order dated 3 June 2022 rejecting the first application was a quasi‑judicial order or an administrative order and consequently whether the principles of res judicata or constructive res judicata would apply to the second application in view of the Bombay High Court’s judgment on 23 June 2022., Both the petitioners and the Municipal Corporation have jointly pleaded before the Bombay High Court that the second application dated 11 July 2022 is maintainable even though the first application dated 10 March 2022 was rejected and that judgment was upheld on 23 June 2022. There is no opposition from the corporation on the various issues raised by the petitioners., The Bombay High Court must decide whether the order of 23 June 2022 upholding the earlier order of 3 June 2022, thereby rejecting the first retention application, bars the petitioners from making another application for the same property and bars the corporation from considering the second application on its merits., The petitioners state that after filing the second application on 11 July 2022, the corporation informed them that, in view of the order of 23 June 2022, it would require a court order or directions to consider the fresh application. The Bombay High Court therefore has to decide this issue, as the corporation’s concessions on various legal points could have serious consequences for the regularisation of illegal and unauthorized construction in Mumbai., Both the petitioners and the Municipal Corporation have raised the common ground that the second application invokes different provisions of the Development Control and Promotion Regulation, 2034, and therefore the order of 3 June 2022 rejecting the first application, which was upheld by this Court, would not amount to estoppel or bar the second application.
id_1755	1	We have perused the pleadings filed by the petitioners in this writ petition and the order passed by the Bombay High Court in Writ Petition No. 3116 of 2022. When the first application for retention was made by the petitioners, the provisions of Development Control and Promotion Regulation 2034 were already brought in effect. The Bombay High Court in the case of Mahendra Builders (supra) has held that once the order rejecting regularisation that was passed by the Corporation had become final, a second application for regularisation after having not agitated the issue in that regard in the earlier proceedings is not permissible in law., It is not the case of the petitioners that in the second application for regularisation/retention, the petitioners have applied for retention of the additional structure which were not the subject matter of the first application for retention. In the first application for retention/regularisation, the petitioners had already invoked the provisions of Development Control and Promotion Regulation 2034. The provisions now invoked by the petitioners for additional Floor Space Index as per regulation 30 or additional Transfer of Development Rights by availing the TDR from market or for Built‑up Area by invoking regulation 33(20)(B) were already provided in Development Control and Promotion Regulation 2034 when the first application for regularisation/retention was made by the petitioners. The order passed by the Municipal Corporation for regularisation/retention under section 44 is a quasi‑judicial order appealable under section 44 of the Maharashtra Regional and Town Planning Act and not an administrative order., In the said order dated 3 June 2022 rejecting the first application for retention, the Municipal Corporation had clearly recorded that the architect of the petitioners had claimed Floor Space Index as per Development Control and Promotion Regulation 2034. The Municipal Corporation held that the Floor Space Index of the entire plot cannot be loaded on the particular structure as other structures/occupants on the same plot could not be adversely affected, as it would amount to use of Floor Space Index which the other owners/occupants of the same plots may be entitled to. The Corporation held that the additional proposed work at every floor already exists at site hence the proposal does not fall within the ambit of proposed work. There is no Floor Space Index admissible for the retention/regularisation work., The Municipal Corporation also rejected the said application on the ground that No Objection Certificate from the Fire Department for high‑rise building was not submitted which was a mandatory document as the refuge area was encroached upon. Habitable user was proposed on the first and second recreation floor and the seventh refuge floor and terrace. In OCC plans, the first recreation, second recreation and entire refuge floor were approved free of Floor Space Index. Due to additional work which has been carried out making the said floors habitable now, the free‑of‑Floor‑Space‑Index area on these floors will not be allowed as per provision of Development Control and Promotion Regulation 2034 which will result in an increase in Floor Space Index. It is held that as the decks claimed free of Floor Space Index on the earlier approved building are not accessible by common staircase/lift/lift lobby, the same are not allowed free of Floor Space Index as per provision of Development Control and Promotion Regulation 2034 and policy in force., In paragraph (6) of the said order dated 3 June 2022, it was held that the petitioners had not submitted the prior clearance of the Mumbai Coastal Zone Management Authority for the proposed regularisation/retention of unauthorised work as stated in the submission., The said order dated 3 June 2022 was challenged on various grounds raised in the Writ Petition No. 3116 of 2022. It is not the case of the petitioners that the Floor Space Index, additional Transfer of Development Rights, Built‑up Area under regulation 30 or 33(20)(B) or any other provision invoked now could not have been invoked in the first application for retention. Admittedly the petitioners had claimed additional Floor Space Index also in the first application for regularisation., The said Writ Petition No. 3116 of 2022 filed by the petitioners impugning the order passed by the Corporation rejecting the first application for retention was vehemently opposed by the Municipal Corporation on various grounds including the ground that the petitioners had carried out large‑scale unauthorised construction. Per contra, it was vehemently urged by the petitioners that the petitioners had not carried out any unauthorised construction. It was contended that on the basis of the Floor Space Index available on the date of making the application for retention under section 44 of the Maharashtra Regional and Town Planning Act, the Municipal Corporation ought to have considered the Floor Space Index up to 2.5 and ought to have allowed the petitioners to retain the entire structure. It was further contended that if the Floor Space Index of 2.5 would have been considered on the date of filing the application for retention, the respondents could not have rejected the application for retention filed by the petitioners., The Municipal Corporation vehemently urged before the Bombay High Court in the Writ Petition No. 3116 of 2022 while advancing the oral submissions that there was no sub‑division of plot admeasuring 2,209 square metres. The Corporation had rightly considered Floor Space Index at 745.25 square metres as applied by the petitioners. The petitioners had not challenged the order passed by the Municipal Corporation on 22 March 2022 under section 351 of the Mumbai Municipal Corporation Act and the said order had attained finality., It was vehemently urged by the Corporation that since the regularisation/retention prayed for by the petitioners was incapable of regularisation, in view of there being no Floor Space Index, and in view of various other breaches committed by the petitioners, the Corporation rightly rejected the application for retention made by the petitioners. The constructions carried out on the larger plot are existing. The Municipal Corporation vehemently urged that the petitioners had committed flagrant violation of the provisions of the Mumbai Municipal Corporation Act, Development Control and Promotion Regulation and the Maharashtra Regional and Town Planning Act., The Bombay High Court in the said order dated 23 June 2022 held that the Municipal Corporation had already passed an order holding the status of the portion of the structure as unauthorised under Section 351(1A) of the Mumbai Municipal Corporation Act. The Court has rendered a finding that there was large‑scale unauthorised alteration carried out by the petitioners after getting the plan sanctioned on the plot admeasuring 1,187.84 square metres. As per the occupation certificate, plot area was 2,209 square metres and 2,814.81 square metres was already consumed in terms of Development Control and Promotion Regulation. The architect has now claimed Floor Space Index as per Development Control and Promotion Regulation. The architect is not allowed to claim Floor Space Index on the basis of Development Control Regulations on the entire plot. The Court has upheld the reasons recorded by the Municipal Corporation in the order rejecting the first application for retention that it was not possible to regularise the portion which was the subject matter of the application for retention under any provisions of law., The Court also recorded a finding that the petitioners had carried out alteration to the extent of three times the sanctioned area. The Court held that there is no automatic sub‑division of the plot merely on the execution of a lease agreement in favour of the petitioners for a portion of the larger plot. The Corporation had permitted construction only on 745.24 square metres as claimed by the petitioners. The constructions carried out earlier on the said larger plot are still existing. The Court held that the existing buildings on the larger plot have not been demolished. After recording the detailed reasons, the Court dismissed the said writ petition having found it devoid of merit., Since the petitioners wanted to challenge the said order passed by the Bombay High Court before the Supreme Court, the petitioners were granted a six‑week stay to enable them to challenge the order. Admittedly the petitioners have not impugned the order passed by the Bombay High Court. The order passed by the Municipal Corporation on 3 June 2022 rejecting the first application for retention has attained finality. It is clear beyond reasonable doubt that the findings of the Municipal Corporation that there is large‑scale unauthorised construction carried out by the petitioners have been confirmed by this Court while rejecting the Writ Petition No. 3116 of 2022. In our view, since the order passed by the Municipal Corporation for retention under section 44 is a quasi‑judicial order and is appealable, there is no merit in the submission of the learned counsel for the petitioners that the said order is an administrative order and the principles analogous to constructive res judicata or res judicata would not apply to the facts of this case. The order passed by the Municipal Corporation on 3 June 2022 has merged with the order passed by the Bombay High Court which has attained finality., In our view the second application made by the petitioners for retention under section 44 claiming Floor Space Index or Transfer of Development Rights under various provisions of Development Control and Promotion Regulation 2034 and seeking regularisation by availing the benefits of those provisions which were partly availed of and could have been availed of but were not availed of, the principle analogous to the principle of constructive res judicata or res judicata will apply to the second application made by the petitioners for retention., If the arguments of the petitioners and the submissions of the Municipal Corporation not disputing the submission of the petitioners are accepted, the order passed by the Municipal Corporation rejecting the application for retention on various grounds including the ground that the construction carried out by the petitioners was unauthorised and having been upheld by this Court by recording specific finding of fact that there was large‑scale unauthorised construction carried out by the petitioners, would have no legal sanctity and would be without any force of law. The Municipal Corporation cannot ignore the finding already recorded by this Court that there was a large‑scale unauthorised construction carried out by the petitioners and could not have been regularised. The petitioners jointly with the Municipal Corporation cannot be allowed to nullify the effect of the order or bypass the order passed by the Corporation and upheld by this Court in the guise of making a second application., In our view, the stand taken not only by the petitioners but also by the Municipal Corporation that any number of applications for retention are maintainable as sought to be canvassed is ex facie contrary to law. The stand now taken by the Municipal Corporation is totally contrary to the stand taken by the Municipal Corporation while deciding the first application for retention and while opposing the said Writ Petition No. 3116 of 2022 for reasons best known to the Municipal Corporation. The Municipal Corporation in this case has taken a total u‑turn while dealing with this writ petition and has determined to consider an untenable application for regularisation/retention under section 44 though the second application is not maintainable in law. Since there is no opposition in this writ petition from the Municipal Corporation for whatsoever reason, the Bombay High Court has after hearing the parties at length raised various queries upon both sides and agreed to decide these issues to protect the sanctity of the order passed by this Court., If the stand taken by the Municipal Corporation is accepted by the Bombay High Court, any member of the public in this city can first carry out large‑scale unauthorised construction and if at some stage any action is initiated by the Corporation for taking action against such a wrongdoer, on application for retention under section 44, the Corporation would tolerate such unauthorised construction and would grant regularisation on one ground or another. The stand taken by the Municipal Corporation in our view is totally illegal, untenable, and contrary to the provisions of the Mumbai Municipal Corporation Act, Development Control and Promotion Regulation 2034 and the provisions of the Maharashtra Regional and Town Planning Act., Insofar as the judgment of the House of Lords in the case of Regina (Reprotech (Pebsham) Ltd.) v. East Sussex County Council, (2003) 1 WLR 348 relied upon by the petitioners is concerned, the provisions of law considered by the House of Lords in the said judgment and the question whether equitable consideration of estoppel and/or res judicata apply to planning laws are totally different. The said judgment is clearly distinguishable on facts and would not assist the case of the petitioners., Mr. Singh, learned counsel for the petitioners, relied upon the following judgments: (i) State of U.P. & Ors. v. Maharaja Dharmander Prasad Singh & Ors. (1989) 2 SCC; (ii) Raja Bahadur Motilal Poona Mills Ltd. & Anr. v. State of Maharashtra & Ors., (2003) 1 Bom C R 251; (iii) City of Nagpur Corporation, Nagpur v. Indian Gymkhana, Nagpur, 2010 (3) Mh.L.J. 196; (iv) Susme Builders Private Limited v. Chief Executive Officer, SRA, 2014 SCC OnLine Bom; (v) State of Jharkhand & Ors. v. Brahmputra Metallics Ltd., Ranchi & Anr., 2020; (vi) Consumer Action Group & Anr. v. State; (vii) Friends Colony Development Committee v. State of Orissa & Ors., (2004) 8 SCC 733; (viii) Sharad Nago Chinawale v. Ulhas Devram Sable & Ors., 2017 SCC OnLine Bom., In our view, reliance placed by the learned counsel for the petitioners on the judgment in support of the submission that the Planning Authority in deciding the application under section 44 of the Maharashtra Regional and Town Planning Act or similar application granting/rejecting fully or partly is administrative in nature is totally misplaced. Sections 44, 45 and 47 of the Maharashtra Regional and Town Planning Act have to be read together., On a conjoint reading of these provisions of sections 44, 45 and 47 of the Maharashtra Regional and Town Planning Act it clearly indicates that if the Planning Authority passes an order in writing on the application made under section 44 granting permission unconditionally or subject to such general or special condition with the previous permission of the State Government or refuses to grant permission, it is appealable under section 47 of the Maharashtra Regional and Town Planning Act within the time prescribed to the State Government or to an officer appointed by the State Government for that purpose not below the rank of Deputy Secretary to the Government. The Appellate Authority has to grant a personal hearing. The State Government is required to give the particulars to the appellant and the Planning Authority has to hear before passing any order on the said appeal., Under Rule 10 of the Maharashtra Development Plan Rules, 1970 any person aggrieved by the notice served by the Planning Authority under section 53(1), and who seeks to apply for permission under section 44 has to furnish various details, particulars and documents to the Planning Authority that would have been required to be submitted under sub‑rule (2) of Rule 6, had he applied for permission under section 44 before the development was carried out. Rule (8) of the said Rules provides that every appeal under section 47 shall be made to the officer appointed by the State Government under that section and shall clearly state the grounds of appeal. Rules 8 and 10 of the Maharashtra Development Plan Rules, 1970 would not advance the case of the petitioners but on the contrary clearly indicate that the order that is passed by the Municipal Corporation on an application under section 44 being an appealable order cannot be termed as an administrative order., There is no substance in the submission made by the learned counsel for the petitioners that the blanket prohibition or ban for making a second application for any further application in future would act as an estoppel which would affect the validity of action including those which may be ultra vires. There is also no merit in the submission of the learned counsel for the petitioners that even if res judicata or estoppel are applied, the introduction of these principles will only be limited to those cases where the very same reason that brought about the rejection is re‑agitated., The stand taken by the Municipal Corporation in the affidavit in reply is that the second application for retention under section 44 is not barred once the earlier proposal is rejected or recorded. It is contended by the Municipal Corporation in the affidavit that in the Brihanmumbai Municipal Corporation Auto DCR system, no restraint is put on the project proponent from submitting an application once an earlier application is rejected. It is further contended that as per prevailing practices dormant proposals can be continued and recorded proposals can be resubmitted by taking approval of the competent authority by recovering fresh scrutiny fees., In the facts of this case, it is not the case of the petitioners that the first application for retention filed by them under section 44 remained dormant or was filed and not considered by the Municipal Corporation for non‑compliance of certain procedural requirements or that the documents for curing the defect in the said application were not submitted or that the said application was not rejected on merits. The first application made under section 44 of the Maharashtra Regional and Town Planning Act has been rejected by the Municipal Corporation by recording the reasons, and the order has attained finality in view of the dismissal of the writ petition filed by the petitioners impugning the said order of the Municipal Corporation on merits after recording the finding that the petitioners had carried out a large‑scale violation of the provisions of law and had carried out unauthorised construction. Various mandatory permissions were not obtained by the petitioners before carrying out additions and alterations. The Corporation had recorded a finding that due to additional work carried out making various floors habitable now, the free‑of‑Floor‑Space‑Index area on those floors will not be allowed as per Development Control and Promotion Regulation 2034 which will result in an increase in Floor Space Index. Decks claimed free of Floor Space Index on earlier approved buildings are not accessible by common staircase/lift/lift lobby. The same are not allowed free of Floor Space Index as per provisions of Development Control and Promotion Regulation 2034. The petitioners also did not submit the prior clearance of the Mumbai Coastal Zone Management Authority for the proposed regularisation/retention of unauthorised work. The stand now taken by the Corporation is exactly contrary to the order passed earlier which has attained finality., Insofar as the judgment of the Supreme Court in the case of Shree Ram Urban Infrastructure Limited & Another (supra) relied upon by the Municipal Corporation is concerned, the Supreme Court had considered the issue whether deemed permission accrued, and concerning the determination of refuge area as per order passed by the Municipal Commissioner. The order passed by the Municipal Corporation regarding the refuge area came to be upheld by the Supreme Court in the said judgment. In our view, the said judgment does not even apply remotely to the facts of this case and does not advance the case of the petitioners or the Corporation., The Bombay High Court in the case of Mahendra Builders v. State of Maharashtra (supra) under the Maharashtra Regional and Town Planning Act has held that a quasi‑judicial authority cannot review its own order unless the power of review is expressly conferred on it by the statute. The power of review is not an inherent power; it must be conferred by law either specifically or by necessary implication. In our view, the petitioners by filing a second application for retention under section 44 of the Maharashtra Regional and Town Planning Act seek review of the earlier decision by the Municipal Corporation rejecting their first application for retention, a decision that has been admittedly upheld by this Court and is not permissible. There is no provision of review under the Maharashtra Regional and Town Planning Act. The principles laid down by this Court in the case of Mahendra Builders v. State of Maharashtra (supra) apply to the facts of this case., In the said judgment, this Court had considered the facts where the applicants who had applied for regularisation had acquiesced in their right in the impugned order qua the additional rooms and toilets. It was held that no other inference could be drawn looking at the legal proceedings adopted by respondents nos.5 to 7 before the second regularisation application in question came to be filed. This Court held that the said applicant cannot at their whims and fancies and at their convenience take recourse to statutory remedies, overlooking their earlier actions and the consequences of the orders passed against them., This Court accordingly held that taking into consideration these facts, making a second regularisation application after having not agitated the issue in that regard in the earlier proceedings was impermissible in law. This Court accordingly held that the Municipal Commissioner could not have entertained the said application overlooking these glaring facts as noted by this Court in the said judgment. The principles laid down in the said judgment apply to the facts of this case. In this case also the Municipal Corporation admittedly rejected the first application for retention/regularisation filed by the petitioners. The said order passed by the Municipal Corporation has been upheld by this Court. The order passed by this Court has not been challenged by the petitioners before the Supreme Court. The petitioners, having accepted the findings rendered by the Municipal Corporation rejecting the first application for retention and upheld by this Court, could not have filed a second application for retention under section 44 in respect of the same property having the same cause of action., We now decide the issue whether the petitioners, though having carried out the large‑scale violation of the provisions of law and more particularly the sanction granted by the Municipal Corporation, can still have their application for retention considered. We are astonished by the stand taken by the Municipal Corporation in the affidavit in reply and across the bar that there is no scale defined for the quantum of regularisation the Corporation can consider; retention irrespective of the volume of unauthorised construction and breach of provisions cannot be tolerated. If the arguments of the petitioners as well as the Municipal Corporation that there is no bar in considering an application for regularisation of unauthorised construction irrespective of the scale or violation of such unauthorised construction are accepted, every inch of land of Mumbai City even if developed in breach of the sanctioned plan and other mandatory provisions of law would be tolerated by the Municipal Corporation. The entire object and purpose of obtaining mandatory prior permission of the Municipal Corporation before carrying out construction, keeping in mind the public interest, would be frustrated and would defeat the legislative intent., In this backdrop, we shall now decide whether the Municipal Corporation can be allowed to consider an application for retention even in case of large‑scale violation of the sanctioned plan for carrying out construction granted by the Municipal Corporation itself, or to what extent and in what circumstances an application for retention/regularisation of violations can be considered., It is not in dispute that, in the notice issued under section 351 of the Mumbai Municipal Corporation Act by the respondent Corporation on 25 February 2022, the Municipal Corporation had found the work carried out by the petitioners beyond the approved plans and unauthorised. In the order passed by the Municipal Corporation on the said notice issued under section 351, the Municipal Corporation found such structure unauthorised to a large extent. The said order passed under section 351 of the Mumbai Municipal Corporation Act has not been admittedly impugned by the petitioners to date. The findings of the large‑scale violation of the provisions of the Act and the sanctioned plan by the petitioners rendered by the Municipal Corporation have attained finality., The Bombay High Court in the said judgment delivered on 23 June 2022 recorded a finding that the petitioners have carried out large‑scale unauthorised construction, more particularly to the extent of three times the sanctioned construction. The Court accepted the arguments advanced by the learned senior counsel for the Municipal Corporation vehemently opposing the said petition and justifying the order passed by the Municipal Corporation rejecting the application for retention under section 44. There is thus no dispute that the petitioners have carried out large‑scale unauthorised construction in blatant violation of the sanctioned plan and the provisions of law. Various reasons recorded by the Municipal Corporation while rejecting the first application for retention made by the petitioners are accepted by this Court in the said judgment dated 23 June 2022., The petitioners or even the Municipal Corporation cannot be allowed to brush aside the finding of large‑scale unauthorised construction rendered by the Corporation and accepted by this Court under the guise of considering the second application made by the petitioners for retention., It is not disputed by the Municipal Corporation that, under section 342 of the Mumbai Municipal Corporation Act, any person who intends to make any addition to a building or change of existing user of the building has to give to the Commissioner notice of such intention to make additions or change of user of the building. Various restrictions are imposed under section 342 of the Mumbai Municipal Corporation Act providing the nature of work requiring permissions under the said provision. Under section 44 of the Maharashtra Regional and Town Planning Act, an application for development is necessary in such form and containing such particulars and accompanied by such documents, as may be prescribed, not being Central or State Government or local body intending to carry out any development or any land interest or otherwise provided by rules., Under section 45 of the Maharashtra Regional and Town Planning Act, the Planning Authority is empowered to grant permission on an application made under section 44 of the Maharashtra Regional and Town Planning Act unconditionally or subject to such general or special conditions as it may impose with the previous approval of the State Government or refuse the permission. In this case, various conditions were imposed by the Municipal Corporation while granting permission to the petitioners for carrying out the construction. After enactment of Development Control and Promotion Regulation 2034 published on 21 September 2018, these regulations shall apply to all development, redevelopment, erection and/or re‑erection of a building, change of user etc. as well as to the design, construction or reconstruction of and additions or alterations to a building., Under section 351 of the Mumbai Municipal Corporation Act, the respondent Corporation is empowered to take action if the erection of any building or the execution of any such work as described in section 342 is commenced contrary to the provisions of sections 342 or 347, by serving a written notice and is empowered to remove, alter or pull down such unauthorised construction. In this case, the action initiated by the Municipal Corporation against the petitioners for carrying out such large‑scale unauthorised construction has already attained finality., Under section 53 of the Maharashtra Regional and Town Planning Act, the Planning Authority is empowered to serve on the owner, developer or occupier a prior notice of 24 hours requiring him to restore the land to conditions existing before the said development took place, where any development of land has been carried out as indicated in section 52(1)(a) or (c). The provision further provides that if the owner, developer or occupier fails to restore the land, the Planning Authority shall immediately take steps to demolish such development and seal the machinery and materials used or being used therefor. The Planning Authority is empowered to issue notice requiring such permission to demolish or alter. If any action is taken under section 53(1) of the Maharashtra Regional and Town Planning Act, any person aggrieved by such notice is entitled to apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of the land, to which the notice relates, pending the final determination or withdrawal of the application; the mere notice itself shall not affect the retention of buildings or works or the continuance of such use., Section 53(5) provides the consequences in case permission for retention is granted by the Planning Authority or is refused. If the permission for retention of unauthorised construction is rejected by the Planning Authority, any person who has carried out such unauthorised construction can be punished for a term as provided in section 53(7) of the Act. Under the same provision, the Planning Authority is empowered to issue notice to the person who has carried out unauthorised work to restore the construction to the original position as sanctioned by the Planning Authority., The Urban Development Department of Maharashtra issued a notification on 8 May 2018 and sanctioned the Development Plan (DP 2034) and Development Control and Promotion Regulation 2034 (DCPR 2034). The said DP 2034 and DCPR 2034 provide the regulations for carrying out any kind of development in the City of Mumbai. The said DCPR 2034 forms an integral part of DP 2034., The Supreme Court in the case of Mahendra Baburao Mahadik & Ors. v. Subhash Krishna Kanitkar & Ors., (2005) 4 SCC 99, after considering various case laws and construing sections 44, 52, 53, 124E, 143, 2(15) and (19) of the Maharashtra Regional and Town Planning Act, held that the power to grant permission for construction as contained in section 44 of the Maharashtra Regional and Town Planning Act, whether at the initial stage or when a notice is served under section 53(2) of the Act, could be exercised only within the purview of the Building Bye‑laws. The Municipal Corporation has no jurisdiction to direct regularisation of such unauthorised constructions beyond the scope of section 44 of the Maharashtra Regional and Town Planning Act. The power of the Municipal Corporation, it is trite, being confined to the provisions of the said Acts, no action could be taken by it contrary thereto or inconsistent therewith., The Supreme Court in the case of Mahendra Baburao Mahadik & Ors. (supra) adverted to an earlier judgment in the case of Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733 in which the Supreme Court held that though municipal laws permit deviations from sanctioned constructions to be regularised by compounding, that is by way of an exception. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations where the benefit gained by demolition would be far less than the disadvantage suffered. It is held that other than these, deliberate compounding of deviations ought to be kept at a bare minimum., The Supreme Court also considered, in the said judgment, a judgment in the case of M.I. Builders (P) Ltd. v. Radhey Sham Sahu (1999) 6 SCC 464, holding that no consideration should be shown to the builder or any other person where construction is unauthorised. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out.
id_1755	2	Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. It is held that a discretionary power must be exercised having regard to the larger public interest., Division Bench of the Bombay High Court in Sharad Nago Chinawale vs. Ulhas Devram Sabale, 2017 Supreme Court Cases Online Bombay 8179, after construing Regulation 16.2 of the Development Control Regulation, held that what is unauthorized and illegal cannot be regularized in law. Regulation 16.2 is not meant to serve that purpose; otherwise every unauthorized and illegal work could be regularized. Only irregular work can be regularized, as clarified by the Supreme Court of India in Mahendra Baburao Mahadik & Ors., Division Bench of the Bombay High Court in Overseas Chinese Cuisine (India) Pvt. Ltd. & Another, after construing various provisions of the Development Control Regulation, held that the application for regularization is alien to the provisions of the Bombay Municipal Corporation Act or Maharashtra Regional and Town Planning Act, both dealing with construction or development of land contrary to the Regulations. The Court, applying the Wednesbury test of rationality, distinguished the judgment in Girish Vyas (Writ Petition No. 4433 of 1998 with Writ Petition No. 4434 of 1998) because that case involved a large number of tenements already occupied by tenants, and demolition would have been harsh and unjust. The facts in Overseas Chinese Cuisine were different and the Court dismissed the writ petition with costs., The Bombay High Court in Savitribaiphule Shikshan Prasarak Mandal, Kamlapur vs. Solapur Municipal Corporation & Anr., 2019 Supreme Court Cases Online Bombay 1771, held that jurisdiction under Article 226 of the Constitution of India is extraordinary, equitable and discretionary. It cannot be invoked to subvert the law or mock the rule of law. Allowing the petitioner to retain the construction activity or permitting the Municipal Corporation to tolerate it would be contrary to law and a mockery of the rule of law., The Court enforces the performance of statutory duty by public bodies as an obligation to ratepayers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights. The scheme is for the benefit of the public. All residents in the area have a special and substantial interest injured by illegal construction. The principles laid down in Savitribaiphule Shikshan Prasarak Mandal, Kamlapur apply to the facts of this case., Division Bench of the Bombay High Court in Divgi Metal Wares Pvt. Ltd. vs. Municipal Corporation of the City of Pune & Ors. (2019) 5 Maharashtra Law Journal 484 dealt with whether the Planning Authority may allow retention of anything other than what is prescribed by law. The Court held that a resolution and circular prescribing compounding charges to retain activity is not sustainable and set them aside. After construing Sections 44 to 47, 52 and 53 of the Maharashtra Regional and Town Planning Act, the Court held that Section 52 makes the specified acts an offence punishable by penalty, and for a continuing breach Section 53 confers power to require removal of unauthorized development., The Court found that the Planning Authority can serve a prior notice of 24 hours to the owner, developer or occupier requiring restoration of the land to its condition before development when the development is without permission or in contravention of a duly modified permission. If the notice is ignored, the Planning Authority shall demolish such development and seal the machinery and materials used., It is held that where development is carried out without any permission, or in contravention of any condition or a duly modified permission, a distinct notice can be served under Section 53(1A) requiring the noticee to carry out the acts enlisted. If the aggrieved person seeks to retain the activity, he may approach the Authority under subsection (3) of Section 53 for retention. The Court observed that none of the parties showed any provision enabling the Planning Authority to recover such fees., The Supreme Court of India in Supertech Limited vs. Emerald Court Owner Resident Welfare Association & Others, (2021) 10 Supreme Court Cases (1), dismissed the civil appeal of the applicant whose construction was declared unauthorized and whose writ petition was dismissed by the High Court. The Court noted the rampant increase in unauthorized constructions across urban areas, particularly in metropolitan cities, due to collusion between developers and planning authorities. It held that regulation of the entire process is intended to ensure that constructions with severe negative environmental impact are not sanctioned. When regulations are brazenly violated, it strikes at the core of urban planning, resulting in increased harm to the environment and dilution of safety standards. Illegal construction must be dealt with strictly to ensure compliance with the rule of law., The Supreme Court, referring to K. Ramdas Shenoy vs. Town Municipal Council, Udipi, (1974) 2 Supreme Court Cases 506, held that a municipality functions for public benefit and when it acts beyond the powers conferred by the Act or abuses those powers, it usurps powers it does not possess. If the municipality exceeds its authority and infringes the rights of others, it becomes amenable to the jurisdiction of the courts. Approvals that contravene bye‑laws are illegal and inoperative. Unregulated construction materially affects the right of enjoyment of property by residents, and it is the duty of the municipal authority to ensure that the area is not adversely affected., The Supreme Court also referred to Priyanka Estates International (P) Ltd. vs. State of Assam, (2010) 2 Supreme Court Cases 27, noting that illegal and unauthorized constructions beyond sanctioned plans are on the rise, possibly due to paucity of land in big cities. Such activities must be dealt with firmly, otherwise builders will continue to construct beyond approved plans and go scot‑free., The Supreme Court further referred to Esha Ekta Apartments Cooperative Housing Society Ltd. v. Municipal Corporation of Mumbai, (2013) 5 Supreme Court Cases 357, holding that unauthorized construction destroys the concept of planned development and places an unbearable burden on basic amenities provided by public authorities. It was imperative for the public authority to demolish such constructions and impose a penalty on the wrongdoers., The Supreme Court held that by rejecting the prayer for regularization of floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer and the appellate authority demonstrated their determination to ensure planned development of the commercial capital. The Court expressed regret that despite repeated cautions to preserve ecology and protect citizens’ rights, arbitrary regularization of illegal constructions continues., The Supreme Court, in Supertech Limited, did not interfere with the High Court’s judgment ordering demolition of two towers, which have now been demolished. The principles laid down in that judgment apply to the facts of this case, and we are bound by them., The Supreme Court in Pratibha Co‑operative Housing Society Ltd. and another vs. State of Maharashtra & Others, (1991) 3 Supreme Court Cases 341, considered a housing society that made illegal constructions violating Floor Space Index (FSI) by more than 24,000 sq.ft. The Municipal Council ordered demolition of eight floors, and the writ petition was dismissed. The Court held that the violation was not minor, was a flagrant disregard of FSI, and the demolition order had attained finality. Similar substantial violations of FSI and other mandatory provisions exist in the present case and cannot be regularized., Division Bench of the Bombay High Court, suo moto, in Jilani Building at Bhiwandi vs. Bhiwandi Nizampur Municipal Corporation and others, (2022) Supreme Court Cases Online Bombay 386, considered several important issues. The Court held that for the city of Mumbai, the Municipal Corporation is the custodian of all planning affairs within its jurisdiction, including granting statutory permissions for construction, reconstruction, addition or extension, to ensure that unauthorized and illegal structures are not put up., It is held that granting such construction permissions is the responsibility of the planning authority, and when an unauthorized structure is put up, it becomes an obligation of the Municipal Corporation of Greater Mumbai and also of the competent authority under the Maharashtra Slums Act to take action, including prosecution of persons who erected illegal structures and of any officer who aided or abetted the construction and failed to demolish such structures without sufficient reason. Illegal encroachments and unauthorized structures are a menace and a potential danger to Mumbai and other larger cities., It is held that these factors depict absolute lawlessness in implementation of municipal laws. State policies create two categories of citizens: law‑abiding citizens who construct lawfully and enjoy legitimate benefits, and persons who brazenly violate the law, erect illegal structures and enjoy them with impunity under the blessings of municipal and government officers., It is held that a third category consists of persons who illegally enter and encroach on public lands, construct unauthorized structures, reside in them for long periods with the blessings of authorities, and are rewarded under government policies that offer free accommodation under the guise of slum redevelopment. This mechanism breaches the public trust doctrine by siphoning public assets to reward encroachers for private benefit., In our view, the petitioners fall in the second category of persons who have undertaken illegal and unauthorized construction by building three times the sanctioned area, constructing in open spaces and far beyond the permitted Floor Space Index, contrary to the sanctioned plan., The Court, referring to the judgment of the Supreme Court in Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation and Ors., (2013) 3 Supreme Court Cases (Civil) 72, upheld the High Court’s order, holding that the construction undertaken by the private party was in clear violation of the sanctioned plans, a notice was issued by the competent authority, and an application for regularization made after completion could not be sustained., The Supreme Court emphasized that illegal and unauthorized constructions violate municipal laws, the concept of planned development, and affect various fundamental and constitutional rights of other persons. The public feels cheated when illegal constructions are supported by those entrusted with preparing and executing master plans. Unauthorized construction destroys planned development, burdens basic amenities, and it is imperative for authorities to demolish such construction and impose adequate penalty on the wrongdoer., In that judgment, the Court framed various guidelines about the duties and obligations of the Planning Authority relating to unauthorized construction. It held that persons who put up illegal constructions cannot claim immunity. The Municipal Commissioner shall take action for demolition and also institute criminal proceedings against violators, in accordance with law., The Bombay High Court in Sudhir M. Khandwala vs. Municipal Corporation of Greater Mumbai & Ors., 2010 (2) Maharashtra Law Journal 759, framed guidelines on the power to grant or refuse permission for regularization of unauthorized construction, after referring to various Supreme Court judgments. The Court held that punishing wrongdoers is not enough; the unauthorized development must also be removed. The case dealt with additional floors beyond permission and examined whether Section 53(3) of the Maharashtra Regional and Town Planning Act, 1966 could be used for regularization., The principles laid down are: (i) Retention or regularization authority is found only in Section 53(3) and Section 44 of the Maharashtra Regional and Town Planning Act, 1966; there is no other statutory power to regularize unauthorized constructions. (ii) Regularization is not a matter of course and may be permissible only on a case‑by‑case basis; it cannot be granted merely because Floor Space Index is available or can be generated through Transferable Development Rights (TDR). (iii) Limits of Floor Space Index are prescribed, and construction on a plot must consider the Floor Space Index generated for that plot, with specific regulations for computation. (iv) Once Floor Space Index limits, setbacks and compulsory open spaces are prescribed in the Development Control Regulations, the Commissioner or Planning Authority cannot disregard them in considering a regularization application, as they affect health and safety of inhabitants and the neighbourhood. (v) If regularization would increase pressure on existing amenities, it should not be permitted. (vi) The mere claim by a builder that TDR can be generated and loaded onto the existing plot is not decisive; allowing such practice would enable all unauthorized constructions to be regularized. (vii) Builders might seek to generate TDR on an adjacent plot and load it onto the unauthorized plot, which would increase pressure on infrastructure and defeat the purpose of the legislation. (viii) Permission for regularization should not be granted by loading TDRs and generating more Floor Space Index on existing plots, as this would have disastrous consequences. (ix) The legislature has not intended that provisions relating to health, safety, fire safety and the safety of inhabitants be ignored. (x) The Supreme Court has cautioned against liberal use of the power of regularization and retention of unauthorized works, emphasizing public safety, health, environmental protection and the ill‑effects of unregulated construction. (xi) It cannot be said that every unauthorized construction can be regularized by loading TDRs or relaxing restrictions on Floor Space Index, open space, setbacks or building height; each case must be decided strictly in accordance with building regulations. (xii) When an application for retention is made, it cannot be allowed merely because the builder can generate Floor Space Index through TDR; imposing fines or compounding fees alone should not lead to regularization. (xiii) If large‑scale unauthorized constructions are regularized by imposing fines, it would encourage builders to violate laws, believing they can pay high compounding fees. The penal provisions in Sections 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966, are enacted to discourage unauthorized development and punish wrongdoers. (xiv) The exercise of discretionary power must not become a licence to break planning laws; an individual's property rights are subject to the larger public good. (xv) While dealing with retention and regularization, the extent of irregularities, damage, and conduct of parties are relevant considerations. (xvi) The Planning Authority cannot, as a matter of rule, regularize unauthorized constructions by allowing the builder to compensate with money or by loading TDR/Floor Space Index from adjoining plots, as that would contravene judicial pronouncements. (xvii) Jurisdiction under Article 226 of the Constitution of India is extraordinary, discretionary and equitable, and cannot be exercised merely because of loss or inconvenience to flat purchasers or owners., The principles laid down in Sudhir M. Khandwala apply to the facts of this case, and we are respectfully bound by them. We now consider the re‑working of the permissible Floor Space Index claimed by the petitioners in the second application for retention/regularization., Insofar as the additional Floor Space Index claimed by the petitioners is concerned, the Municipal Corporation as well as this Court have already rejected the claim on the ground that there was no subdivision of the larger plot and that there would be an Floor Space Index imbalance. This Court, in its judgment dated 23 June 2022, considered the additional Floor Space Index claim in the first application for retention., The stand taken by the Municipal Corporation in its affidavit that additional Floor Space Index as per Regulation 30 for Floor Space Index 266.09 can be availed by paying a premium to the State Government and Municipal Corporation is totally illegal and contrary to the judgment of 23 June 2022 and to the principles laid down in Sudhir M. Khandwala. The unauthorized construction carried out by the petitioners is totally illegal, cannot be retained or regularized, and is not in public interest., The claim by the petitioners for additional Transferable Development Rights of 532.18 sq.ft., and the Municipal Corporation’s position that such TDR can be purchased from the market, is untenable and contrary to the principles laid down in Sudhir M. Khandwala. The Municipal Corporation’s suggestion that 399.13 sq.mtrs. built‑up area can be availed for rehabilitation of AH/R & R tenements and transferred from another plot under Regulation 33(20)(B) after handing over the project‑affected persons to the Corporation free of Floor Space Index, is contrary to the law. These provisions cannot be used to regularize illegalities or flagrant violations., The similar stand that 399.13 sq.mtrs. plus 399.13 sq.mtrs. can be availed on the plot after handing over the project‑affected persons to the Corporation free of Floor Space Index and by paying unearned income equal to 40 % of the sale value of shifted built‑up area, is also untenable and contrary to Supreme Court and Bombay High Court principles. Collecting unearned income from a wrongdoer for condoning illegal construction would be an unauthorized act, patent illegality and beyond jurisdiction. The power to permit retention by regularization cannot be exercised to allow a wrongdoer to retain an illegal structure in violation of established principles., It is clear that the Municipal Corporation has accepted to consider and pass an order of regularization despite the earlier order rejecting the application for retention under Section 44, ignoring the principles laid down by the Supreme Court and this Court and overlooking the provisions of law. The Corporation cannot be allowed to take such an inconsistent stand, especially when the earlier order was upheld by this Court., If the petitioners’ application for retention/regularization is allowed despite the extent of violation, any order passed would encourage wholesale unauthorized construction in flagrant violation of the Municipal Corporation Act, Maharashtra Regional and Town Planning Act and Development Control Regulation, and would overreach the earlier order of this Court., The petitioners have admittedly constructed about three times the sanctioned plan, utilizing every inch of plot required to be kept open, without obtaining fire department clearance for high‑rise buildings and without prior clearance of the Maharashtra Coastal Zone Management Authority. The proposed retention/regularization of such unauthorized work would encourage large‑scale violation of law and invite wrongdoers to carry out any extent of unauthorized construction in the City of Mumbai without fear of penal action.
id_1755	3	We are not impressed with the arguments of Mr. Singh, learned counsel for the petitioners, that unauthorized construction carried out by his client is being used for residential purposes, and no prejudice would be caused to the Municipal Corporation or the members of the public at large if the application for retention is allowed by the Municipal Corporation by permitting the petitioners to bring additional Floor Space Index, Transfer of Development Rights or to pay any premium or penalty., Accordingly, we pass the following order: Writ Petition (L) No. 22398 of 2022 is dismissed with cost quantified at Rupees 10,00,000/- which shall be paid by the petitioners to Maharashtra Legal Service Authority within two weeks from today. Application No. P-12001/2022/K/W Ward/FP/342/1/New submitted on 11th July 2022 by the petitioners for retention of unauthorized construction is rejected. The respondents are directed to execute the orders dated 11th March 2022, 16th March 2022 and 23rd June 2022 within two weeks from today and to demolish the unauthorized construction carried out by the petitioners and to report compliance before the Supreme Court of India within one week from the date of implementing the order passed by this Court. Learned counsel for the petitioners seeks continuation of ad interim relief granted by the Supreme Court of India for some time to enable the petitioners to approach the Hon'ble Supreme Court. Application for continuation of ad interim relief is rejected.
id_1756	0	Date of decision: 28th November 2023. Plaintiff: Trading Corporation of Pakistan Private Limited, Rice Exporters Association of Pakistan, and Basmati Growers Association (hereinafter the Plaintants). Defendant: Government of India represented by Mr. Akshay Amritanshu, Mr. Rajendra Kumar, Mr. Jitin George, Mr. Ashutosh Jain, Ms. Anjali Kumari, Advocates (mobile 9931282222) with Mr. Sandeep Verma, Under Secretary, Department of Commerce and Mr. Tarun Bajaj, Director, Agricultural and Processed Food Products Export Development Authority (APEDA)., The hearing was conducted in hybrid mode. The present suit has been filed by the Plaintants seeking an injunction against the Defendant, Government of India, from approving Super Basmati as an approved evolved Basmati for the purposes of export., The Plaintants seek the following reliefs: an order of permanent injunction directing the Defendant not to give effect to the impugned Gazette Notification dated 24 May 2006 permitting exports of evolved Basmati rice or any rice from India under the name, variety, classification or trade name of SUPER; an order of permanent injunction restraining the Defendant, their partners, servants, agents, representatives, exporters from India and all those acting in concert with them or claiming under or through them from taking any further legislative, regulatory or administrative action in furtherance of the impugned Notification and from using the name SUPER BASMATI in relation to export of rice from India; an order of permanent injunction restraining the Defendant from permitting exports of rice under the name SUPER BASMATI constituting passing off of the Plaintants' trans‑border reputation of the SUPER BASMATI name, label, quality, variety and classification of evolved Basmati rice; an order of permanent injunction restraining the Defendant and those acting in consort with the Defendant or under the impugned Notification from indulging in any activity which dilutes the distinctive character of the Plaintants' Super Basmati rice brand, label, classification or variety; and an order of permanent injunction restraining the Defendant, their agents, representatives and all those acting in concert with them from infringing the Plaintants' trade name, label, classification, brand or variety of SUPER BASMATI in their packaging, layout, representation or trade reference to basmati rice exported from India or grown in India., The suit was filed in 2008 and the Plaintants also challenged the Notification dated 24 May 2006 issued by the Department of Commerce, Government of India. By order dated 16 April 2014, the Supreme Court of India framed issues in the suit., Evidence on behalf of the Defendant was concluded. On behalf of the Defendant, Mr. N. Ramesh, Director, Ministry of Commerce, appeared as Deponent Witness 1 and was cross‑examined on 11 April 2019. The cross‑examination has not yet concluded., With effect from 3 September 2020 there has been no appearance on behalf of the Plaintants. Discharge was sought on 24 November 2022 by lead counsel for the Plaintants, but no application for discharge has been moved to date., By order dated 2 November 2023, the Supreme Court of India directed that the Plaintants stopped appearing in the suit effectively from 3 September 2020. Because the lead counsel for the Plaintants could not receive instructions from the Plaintants, discharge was sought on 24 November 2022, but the application for discharge has not been moved. The Court directed that the Defendant shall produce all documents referred to in the evidence by way of affidavit filed on behalf of Deponent Witness 1, Mr. N. Ramesh, and that a competent official from the Ministry of Commerce, Government of India shall remain present in court on the next date of hearing., Thus, on 2 November 2023 the Court directed the Defendant to produce the Notification dated 24 May 2006 which was referred to in the evidence of Deponent Witness 1., Today, Mr. Sandeep Verma, Under Secretary, Department of Commerce and Mr. Tarun Bajaj, Director, Agricultural and Processed Food Products Export Development Authority (APEDA) are present before the Supreme Court of India. It is submitted that under Section 5 of the Seeds Act, 1966, the Government, through the Central Seed Committee, approves Basmati varieties from time to time for the purposes of the Seeds Act. Lead counsel for the Defendant referred to Notification No. 2687 dated 18 September 2017, reproduced as S.O. 3067(E). Whereas, by Office Memorandum No. 17‑12/2007‑SD‑IV dated 29 May 2008, the Central Government described the primary quality characteristics and other ancillary characteristics required to qualify as a Basmati rice variety under Section 5 of the Seeds Act, 1966 (54 of 1966); and whereas, by Office Memorandum No. 335/2014‑SD‑IV dated 7 February 2014, the Central Government issued instructions to discourage the registration for production of seeds of Basmati rice varieties outside the area earmarked under the Geographical Indication for Basmati rice; and whereas, to ensure regulation of quality seed production and supply of notified varieties of Basmati rice in respect of Geographical Indication No. 145, the Geographical Indication Registry, Government of India, Chennai, by Certificate No. 238 dated 15 February 2016, restricted seed production of all varieties of Basmati rice notified under Section 5 of the Seeds Act, 1966, only to the Geographical Indication‑registered rice‑growing areas of the states of Punjab, Haryana, Himachal Pradesh, Delhi, Uttarakhand, parts of Western Uttar Pradesh and the state of Jammu and Kashmir. Accordingly, in exercise of the powers conferred by Section 5 of the Seeds Act, 1966, the Central Government, after consultation with the Central Seed Committee, is of the opinion that it is necessary and expedient to restrict seed production of Basmati rice varieties only to the aforesaid rice‑growing areas., It has been further submitted by lead counsel for the Defendant that Basmati has also been registered as a geographical indication (GI) under the Geographical Indications of Goods (Registration and Protection) Act, 1999, bearing Application No. 145 granted on 15 February 2016. The bibliographic details of the Basmati GI are as follows: Application No. 145, Applicant name Agricultural and Processed Food Products Export Development Authority (APEDA), Date of filing 26 November 2008, Class 30, GI name Basmati GI., Lead counsel for the Defendant also stated that, as per the Notification dated 18 September 2017 issued by the Ministry of Agriculture, seed production of all varieties of Basmati rice notified under Section 5 of the Seeds Act, 1966, is restricted to the GI‑registered rice‑growing areas of Delhi, Punjab, Haryana, parts of Uttar Pradesh and the state of Jammu and Kashmir., Since there is no appearance on behalf of the Plaintants and the suit has not been prosecuted effectively since 2020, and considering the Defendant's stand recorded above, no further orders are called for in the present suit., The suit is accordingly dismissed for non‑prosecution. All pending applications are also disposed of.
id_1757	0	Petitioner: Smt. Saloni Yadav and another. Respondent: State of Uttar Pradesh and three others. Counsel for petitioner: Mr. Mohd. Monis. Counsel for respondents: G. A., Amar Bahadur Maurya, Arvind Singh, Deepak Dubey, Dharmendra Kumar Mishra, Maan Singh, Manoj Kumar Kushwaha, Sunil Kumar Kushwaha, Hon'ble Justice Vivek Kumar Birla, J. Hon'ble Justice Rajendra Kumar IV. A supplementary affidavit sworn by petitioner No. 1 was filed today and taken on record., The matter was heard by learned counsel for the petitioners, Mr. Mohd. Monis, counsel for the informant, Mr. Deepak Dubey, and learned Additional Government Advocate, Mr. G. P. Singh, appearing for the State respondents. The writ petition seeks to quash the First Information Report dated 30 April 2023, registered as Case Crime No. 131 of 2023, under Sections 363 and 366 of the Indian Penal Code, Police Station Pipari, District Kaushambi, and also prays that the petitioner not be arrested in the said case., The petitioners admit that they are in a live-in relationship. The victim was born on 1 January 2004 and is therefore a major of about nineteen years. Petitioner No. 2 was born on 15 March 2006 and is a minor of about seventeen years., Counsel for the petitioners submits that petitioner No. 1 is a major who left her house voluntarily; consequently, no offence under Section 363 of the Indian Penal Code is made out, although the boy is admittedly a minor., During the arguments it was noted that Habeas Corpus Writ Petition No. 525 of 2023 (Ali Abbas and others v. State of Uttar Pradesh and others) has been filed concerning petitioner No. 2, Ali Abbas, who is said to be in the custody of the brother and other relatives of the victim, Saloni Yadav. Both petitioners were taken away by family members of Saloni Yadav; petitioner No. 1 managed to run away, but petitioner No. 2 remains in their custody, prompting the filing of the habeas corpus petition., Counsel for the informant submits that an offence under Section 366 of the Indian Penal Code is made out. Whether the case involves abduction is yet to be investigated, and the fact that the girl is a major in a live-in relationship with a minor does not preclude the making of an offence under Section 366. He further submits that the habeas corpus petition has been filed on false grounds., The learned Additional Government Advocate has also opposed the petition., The Court has considered the rival submissions and perused the record., The petition is filed on the ground that petitioners No. 1 and No. 2 are in a live-in relationship. Petitioner No. 2 is a Muslim. The Lucknow Bench of the High Court of Judicature at Lucknow, in Criminal Miscellaneous Writ Petition No. 3310 of 2023 (Kiran Rawat and another v. State of Uttar Pradesh and others) dated 28 April 2023, observed that under Muslim law live-in relationships, termed \Zina\, are not permitted. The judgment quoted: \However, in Muslim law no recognition can be given to sex outside marriage. 'Zina' is defined as any sexual intercourse except that between husband and wife and includes both extramarital and premarital sex, often translated as fornication. Such premarital sex is not permissible in Islam. Acts such as kissing, touching, and staring are 'Haram' before marriage because they are considered parts of 'Zina' which may lead to actual 'Zina' itself. The punishment according to the Qur'an (Chapter 24) is one hundred lashes for the unmarried male and female who commit fornication together, with the punishment prescribed by the Sunnah for married persons being stoning to death.\, In D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469, the Supreme Court of India rejected the claim of the respondent for maintenance under Section 125 of the Criminal Procedure Code, holding that a person who has never been married cannot be considered a divorced wife and therefore is not entitled to maintenance. The Court then examined live-in relationships under the Protection of Women from Domestic Violence Act, 2005, quoting Sections 2(a) and 2(f): \(a) 'aggrieved person' means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. (f) 'domestic relationship' means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.\, The Court further observed that 'relationship in the nature of marriage' is akin to a common‑law marriage. It quoted: \(31) A 'relationship in the nature of marriage' requires that (a) the couple hold themselves out to society as being akin to spouses; (b) they must be of legal age to marry; (c) they must be otherwise qualified to enter into a legal marriage, including being unmarried; (d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. The parties must also have lived together in a 'shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one‑night stand would not make it a 'domestic relationship'. (32) Not all live‑in relationships will amount to a relationship in the nature of marriage for the benefit of the 2005 Act. The conditions must be satisfied and proved by evidence. (33) The view excludes many women who have had a live‑in relationship from the benefit of the Act, but Parliament used the expression 'relationship in the nature of marriage' and not 'live‑in relationship'. The Court cannot change the language of the statute.\, The quoted paragraphs clearly show that the Supreme Court of India holds that a 'relationship in the nature of marriage' must satisfy several conditions before it can be covered under the provisions of the Protection of Women from Domestic Violence Act, 2005, and that live‑in relationships are not mentioned in that Act., The Protection of Children from Sexual Offences Act, 2012 defines a child as any person below the age of eighteen years. The definition is gender‑neutral, applying equally to males and females., Consequently, a child cannot be in a live‑in relationship; such a relationship would be both immoral and illegal, as live‑in relationships are not afforded any protective umbrella under any law. A minor cannot seek protection from criminal prosecution on the ground of a live‑in relationship with a major, nor can he seek quashing of the criminal prosecution, because the activity is not permissible in law., The Supreme Court of India, in Lata Singh v. State of Uttar Pradesh and another (2006) 5 SCC 475, held that a live‑in relationship between two consenting adults of opposite sex does not amount to any offence., There is no law prohibiting a live‑in relationship, which is premarital sex, in the present case. However, the boy is a minor and cannot be permitted to have such a relationship., In Kiran Rawat (supra) this Court observed: \The Supreme Court has further observed in S. Khushboo v. Kanniammal, 2010 (5) SCC 600 that while mainstream society expects sexual contact only within marriage, there is no statutory offence when adults willingly engage in sexual relations outside marriage, except for adultery under Section 497 of the Indian Penal Code. The Court in Lata Singh v. State of Uttar Pradesh noted that a live‑in relationship between two consenting adults of opposite sex does not amount to any offence (with the obvious exception of adultery), even though it may be perceived as immoral. In that case, the petitioner, a woman who married a man of another caste and cohabited with him, faced a criminal complaint under Sections 366 and 368 of the Indian Penal Code. The Court entertained the writ petition, quashed the criminal trial, and observed that no offence was committed and the case was an abuse of the process of the Court.\, Several conditions must be satisfied for a live‑in relationship to be treated as a relationship in the nature of marriage: the persons must be of legal age (at least eighteen years), must be unmarried, must hold themselves out as spouses, must voluntarily cohabit for a significant period, and must live together in a shared household. The present relationship, lasting at most fifteen days, does not satisfy these conditions., The undisputed fact is the age of petitioner No. 2 and the categorical assertion that the petitioners are living together. Whether any offence under Section 366 of the Indian Penal Code is made out remains to be investigated. To date, no one has cooperated with the investigation, and no statement under Sections 161 or 164 of the Criminal Procedure Code has been recorded., Petitioner No. 1, the alleged victim Saloni Yadav, filed a supplementary affidavit stating that she is a major and went with petitioner No. 2 of her own free will. She alleges that after filing the present petition on 13 May 2023, the informant side kidnapped the petitioners from Prayagraj and took them to Jalalpur Ghosi. She further states that on 15 May 2023 she escaped, reached the father of petitioner No. 2, and narrated the entire story. The alleged offence in the First Information Report is dated 27 April 2023, and the petitioners were separated within fifteen days, indicating that the alleged live‑in relationship lasted only fifteen days. No statements of the victim under Sections 161 or 164 of the Criminal Procedure Code have been recorded by the investigating officer or the Court. It is also pertinent that petitioner No. 1 filed the supplementary affidavit while allegedly in the company of the accused., Section 366 of the Indian Penal Code provides: \Kidnapping, abducting or inducing a woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or by abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person, shall be punishable as aforesaid.\, Section 366 includes kidnapping. Section 359 of the Indian Penal Code defines kidnapping as either kidnapping from India or kidnapping from lawful guardianship. Section 361 defines kidnapping from lawful guardianship, specifying the age of a female as eighteen years. Section 362 defines abduction: \Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.\, The word 'inducement' is defined in Black's Law Dictionary as the act or process of enticing or persuading another person to take a certain course of action. 'Induce' means to make or persuade somebody to do something. In legal glossaries, 'induce' is defined as to inspire, call forth or bring about by influence or stimulation, and 'inducement' as that which induces; something attractive by which a person is led on or persuaded to act., The element of inducement affects the understanding of a person and can persuade another to take a certain course of action, such as running away from home, living with a person who is not a major, and is not eighteen years of age., Given that no one, including the victim, has come forward to give a statement under Sections 161 or 164 of the Criminal Procedure Code, it cannot be said at this stage that there was no use of force or inducement. Consequently, it cannot be concluded that the alleged act of abduction did not occur, and whether an offence under Section 366 of the Indian Penal Code has been committed remains to be ascertained by the investigating agency., In view of the foregoing, we find no good ground to grant any indulgence on the basis that the petitioners are in a live‑in relationship. The case is not suitable for the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.
id_1758	0	A.K. Jayasankaran Nambiar, J. The facts of the instant case bring to the fore a classic instance of how a litigant, with the help of clever lawyers, can successfully tweak the law and the legal system in her favour, and avoid transfers and postings that form an integral part of her conditions of service. The appellant protagonist is an Assistant Sub-Inspector/Clerk in the Central Industrial Security Force and she has managed to continue in the home station at Kochi for nearly a decade, much to the chagrin and exasperation of her employers who are charged with administering a disciplined and uniformed force., The appellant joined the service of the Central Industrial Security Force in the rank of Head Constable/Clerk on 22 September 2007 under a compassionate appointment scheme. Her father was a Naik in the CISF who died in an ambush by armed militants while on duty in Nagaland. She was promoted as Assistant Sub-Inspector/Clerk and posted in Cochin on 24 January 2008. She continued as such till 31 October 2013 and thereafter she was posted at the CISF unit in Cochin Port Trust with effect from 1 November 2013., In June 2015, when she was transferred to Vishakapatnam by an order dated 6 June 2015, she approached the High Court of Kerala through Writ Petition (Civil) No. 18515 of 2015, which was disposed with a direction to the respondents to consider a representation preferred by her against the transfer. The respondents considered her representation favourably and cancelled the order of transfer by relying on the applicable guidelines for transfer that envisaged, inter alia, that in cases where a husband and wife were both in Central Government service, they had to be retained in the same station as far as possible. She thus continued in Cochin till [date missing]. It is significant that the appellant’s husband is employed in Fertilisers and Chemicals (Travancore) Limited, a Central Public Sector Undertaking that has offices only in Kerala, and hence if the guidelines are treated as mandatory and invariable, the appellant can never be transferred out of Cochin., By an order dated 16 March 2017, the appellant was transferred to National Thermal Power Corporation, Kudgi (Karnataka). She impugned the order through Writ Petition (Civil) No. 9392 of 2017, which was disposed with a direction to the respondents to consider a representation that she had preferred against the transfer. When the representation was rejected, she again approached the High Court of Kerala through Writ Petition (Civil) No. 16682 of 2017, contending that by virtue of the specific provisions in the guidelines, she could not be transferred to a station other than one where her husband was posted. The Court found no reason to interfere with the order of transfer, noting that she had been continuing in Kerala for more than eight years and in the Cochin unit for more than three years and eight months. The Court also found that no malafides had been established by the appellant and therefore the transfer order could not be assailed, especially as it pertained to the transfer of an employee in a disciplined force. The learned Judge, however, directed the respondents to consider her case for a re‑transfer to Cochin as and when vacancies were available at the Cochin unit, after accommodating the officers awaiting such transfers, without waiting for the appellant to complete three years at the transferred station., The appellant thereafter joined service at Kudgi on 6 July 2017. Immediately thereafter, the respondents considered her request for re‑transfer and posted her back at the Bharat Petroleum Corporation Limited unit in Cochin by an order dated 22 September 2017. She reported for duty at the BPCL unit with effect from 7 October 2017. Significantly, even during her three‑month tenure at Kudgi, she effectively worked there only for three days, as the remaining period was covered by leave and joining time that she had availed. While she was working at the BPCL unit in Cochin, by an order dated 3 September 2021, impugned in the writ petition, she was transferred to the CISF unit attached to the Oil and Natural Gas Corporation in Narsapur (Andhra Pradesh)., In the writ petition preferred by her, the challenge to the transfer order was premised on the grounds that (i) as per the extant guidelines, she was entitled to protection from transfer outside of her home state since she was appointed on compassionate grounds; (ii) the transfer order was punitive in nature because it was in response to a sexual harassment complaint that she had preferred against the eighth respondent Assistant Commandant; (iii) the transfer order being issued mid‑term and not as part of a general transfer order, the respondents were obliged to furnish cogent reasons for the untimely transfer; (iv) as per the extant guidelines she was entitled to be posted at the same station as her spouse who was working in a Central Public Sector Undertaking with offices only in Kerala; (v) there were many vacancies of Assistant Sub‑Inspector/Clerk in Ernakulam and she could be accommodated in one of them, especially when other senior ASIs were available to be transferred out of Cochin; and (vi) the transfer order would visit her and her family with untold hardship and affect her family life as well as the education of her children., In the statement and counter affidavit filed on behalf of the respondents, the averments in the writ petition were traversed, inter alia, by pointing out that (i) as per the extant guidelines the petitioner was liable to be posted at any place within her home sector, which includes the southern sector comprising the States of Andhra Pradesh, Karnataka, Kerala, Telangana, Tamil Nadu, Puducherry and Lakshadweep; (ii) the petitioner could not always rely on the provision that provided for a posting in the same station as her spouse, as that would effectively render the petitioner immune from transfer while in service; (iii) out of her total service tenure of 13 years and 11 months as on 4 September 2021, she had spent 13 years and 4 months in Cochin‑based units alone; (iv) the petitioner had not submitted any formal complaint regarding sexual harassment by the eighth respondent, although the respondents had put in place a comprehensive complaint mechanism through Circular No. 09/2014 issued under Letter No. (267) dated 26/27 March 2014; (v) the eighth respondent was in no way connected with the transfer order issued to the petitioner; (vi) the petitioner had been subjected to disciplinary proceedings in which orders of punishment had been passed by the eighth respondent, which the petitioner had accepted by not pursuing the matter further before the appellate authority; and (vii) no fundamental or other right of the petitioner had been infringed by the transfer order as it was passed in the exigencies of service and in public interest., The learned single Judge who considered the matter found that the petitioner did not establish the allegation of malafides in relation to the transfer order. Regarding the allegation that the sexual harassment complaint against the eighth respondent triggered the transfer, the Judge found that the petitioner had not filed any formal complaint nor mentioned anything about such harassment in the representation preferred against her transfer. Consequently, the allegation of sexual harassment, raised for the first time in the writ petition, did not merit consideration. For the other grounds urged by the petitioner, the Judge found that the provisions in the guidelines would not aid the petitioner in resisting the transfer order, which was issued in the exigencies of service. The writ petition was accordingly dismissed., After the judgment in the writ petition was pronounced, a submission was made on behalf of the writ petitioner that, as she had not reported for duty at the transferred station despite expiry of the joining time, the period of absence be treated as eligible leave. The learned single Judge took note of the submission and directed the respondents to consider the request favourably and further granted the petitioner five days to comply with the transfer order. The appellant did not comply within the time granted but preferred this writ appeal immediately thereafter., The writ appeal was admitted by the High Court of Kerala on 30 November 2021. Despite noting the respondents’ submission that, pursuant to the transfer order impugned in the writ petition, the appellant had been relieved from service and a substitute had joined in her place, the Court ordered that the operation and enforcement of the transfer order be kept in abeyance as against the appellant and directed the respondents to explore the possibility of provisionally retaining the appellant in Cochin. By an order dated 14 February 2022, the Court directed the respondents to post the appellant in a vacancy at the CISF unit attached to Cochin International Airport at Nedumbassery, subject to the outcome of the writ appeal. Accordingly, the appellant was posted at Nedumbassery by an order dated 21 February 2022 and she is continuing there., In the appeal, the thrust of the averments is towards establishing a case of victimisation against the appellant. Emphasis is laid on the allegations regarding sexual harassment urged in the writ petition and the submission that the learned single Judge did not consider the gravity of those allegations or their effect on influencing the transfer order., The learned Senior Counsel Sri. Joseph Kodianthara, assisted by Adv. Sri. R. Kishore, appearing on behalf of the appellant, refers to the correspondence between the appellant and the eighth respondent, as well as the punishment orders passed by the eighth respondent, to contend that harassment was meted out to the appellant. He also contends that, insofar as the specific allegations of sexual harassment in the writ petition have not been rebutted in any counter affidavit filed on behalf of the eighth respondent, the allegations should be seen as accepted by the eighth respondent. He further refers to documents showing the results of a counselling session undergone by the appellant in the presence of the third respondent, suggesting that the latter had threatened the appellant with a transfer if she did not amend her ways. Emphasising that the impugned transfer was ordered mid‑term, the senior counsel argues that, while this court will not ordinarily interfere with transfers necessitated by exigencies of service, a mid‑term transfer must be scrutinised carefully to determine whether it was punitive. He asserts that in the instant case the transfer was punitive, as the chain of causation from the allegation of sexual harassment to the transfer order is clearly established., Per contra, Sri. S. Manu, the learned Assistant Solicitor General appearing on behalf of the respondents, submits that there is no scope for interfering with the judgment of the learned single Judge. He highlights documents showing the basis for disciplinary proceedings initiated against the appellant by the eighth respondent, noting that the appellant, a clerk in the Accounts department of the CISF, took it upon herself to adjudicate the validity of monetary benefit claims submitted by the eighth respondent, an Assistant Commandant and her superior. She stalled the processing of the claim by noting objections even after senior officers had indicated that the claims could be processed without further clarification. Consequently, disciplinary proceedings were initiated, resulting in punishment orders that the appellant did not challenge before the appellate authority. She also refused to file replies to the charge memos before the eighth respondent, opting instead to reply to another superior officer, leading to ex parte penalty orders. The learned ASG argues that these incidents of misconduct played a significant role in the respondents’ decision to transfer the appellant to Narsapur and that the transfer cannot be characterised as punitive. Regarding the sexual harassment allegation, he points out that the only mention of such an incident was a stray remark recorded by the appellant during a telephone conversation with a superior officer without the officer’s consent, and that the appellant did not pursue the matter further. He cites precedents such as Major General J.K. Bansal v. Union of India, Bank of India v. Jagjit Singh Mehta, Union of India v. Sri Janardhan Debanath, Basheer J. v. State of Kerala, and S.K. Nausad Rahman v. Union of India to contend that a transfer passed in the exigencies of service and for administrative convenience is not amenable to interference under Article 226 of the Constitution of India., We have considered the rival submissions, perused the pleadings on record and taken note of the judgments relied upon by counsel on either side. Before analysing the facts, we deem it apposite to notice the law on the subject., It is now a fairly well‑settled principle of service law that the power to transfer an employee in a transferable service lies within the prerogative of the employer, who knows best where an employee should be deployed for an effective discharge of duties. This is especially true in a uniformed service where the exigencies of service include matters relating to the maintenance of discipline within its ranks. By recognising this inherent freedom, courts have generally adopted a hands‑off approach to transfers, interfering only in rare instances where the transfer is vitiated by statutory violations, malafides, or is punitive without prior disciplinary proceedings., In a disciplined force such as the CISF, there may arise cases where the continuance of an employee at a particular station is detrimental to discipline, and it may be prudent for the employer to transfer the employee to another station to maintain discipline while availing the employee’s service. The intention is not to punish but to relocate for discipline. Such transfers do not call for judicial interference as they are measures taken in the exigencies of service and for efficient administration. There is no prejudice to the employee as no stigma is attached to the transfer that would affect future prospects., It is also law that for effecting a transfer, no enquiry need be conducted to first ascertain misconduct, as requiring such would frustrate the purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity. Whether an employee can be transferred to a different division is a matter for the employer, depending on administrative necessities., On analysis of the facts, we find the appellant to be a person who relentlessly portrays herself as a victim of circumstances to avoid posting outside Cochin. In almost every representation she has highlighted that her appointment was on compassionate grounds following her father’s death and that, as per the guidelines, she must be posted where her husband is posted. Her husband works in Fertilisers and Chemicals (Travancore) Limited, a Central Public Sector Undertaking with no office outside Kerala, allowing her to rely on the guidelines to stall transfer orders. When in 2017 her attempt to stall a transfer to Kudgi failed, she joined duty there only to be transferred back to Cochin three months later, pursuant to a request for re‑transfer. Even during the three months at Kudgi, she effectively worked only three days, the rest being covered by leave and joining time., The accommodation granted by the respondents contributed to the appellant’s extended tenure at Cochin, but rather than expressing gratitude, she displayed arrogance in discharging duties. Documents show that, as a clerk in the Accounts department, she arrogated to herself the role of a superior officer deciding on the validity of a monetary benefit claim (LTC) submitted by the eighth respondent, an Assistant Commandant and her superior. Her duty was merely to forward the claim with remarks, if any, to the competent authority. Instead, she stalled processing by noting objections even after senior officers indicated the claim could be processed without further clarification. This conduct invited disciplinary proceedings initiated by the eighth respondent, resulting in punishment orders that the appellant did not challenge in appellate proceedings. She also refused to file replies to the charge memos before the eighth respondent, opting to reply to another superior officer, leading to ex parte penalty orders., We find that the incidents of misconduct played a significant role in the respondents’ decision to transfer the appellant to Narsapur, and we see nothing wrong in it. The transfer cannot be characterised as punitive merely because the respondents noted the appellant’s misconduct. It is a prudent measure taken to maintain discipline in the workplace, especially as the respondents are charged with administering a disciplined force., The other grounds of challenge are legally unsustainable. The allegation of sexual harassment against the eighth respondent was never established. The appellant’s representations against the eighth respondent were essentially complaints about disciplinary proceedings, and she accepted the penalties without challenging them, rendering those complaints baseless. The stray mention of a sexual harassment incident recorded during a telephone conversation without the officer’s consent was not pursued further, and therefore the single Judge correctly found that the charge did not deserve consideration., The contention that the applicable guidelines were violated in transferring the appellant to Narsapur lacks merit. The guidelines require retention only in the home sector, which for the appellant includes the southern sector comprising Andhra Pradesh, Karnataka, Kerala, Telangana, Tamil Nadu, Puducherry and Lakshadweep. Her reliance on the guideline envisaging posting in the same station as her spouse is not justified. As observed by the Supreme Court in Bank of India v. Jagjit Singh Mehta, while spouses should be posted at the same station as far as practicable, it does not create an absolute right to such posting when administrative needs dictate otherwise., The statutory provisions governing the CISF, notably Section 15 of the Central Industrial Security Force Act, 1968, permit posting an employee anywhere in India. We are not persuaded by the senior counsel’s argument that a mid‑term transfer should be viewed with suspicion. The transfer was justified in the interests of maintaining discipline in the force., The upshot of the discussion is that we see no reason to interfere with the judgment of the learned single Judge. We therefore vacate the interim orders passed in this appeal and dismiss the appeal. The respondents are free to relieve the appellant from her present posting at Nedumbassery and direct her to report for duty at Narsapur forthwith, after allowing her the normal joining time granted to transferred officers in the force. The writ appeal is dismissed.
id_1759	0	Applicant: Smriti Singh alias Mausami Singh and three others. Opposite Party: State of Uttar Pradesh and another. Counsel for Applicant: Shri Prakash Dwivedi and Saurabh Sachan. Counsel for Opposite Party: Additional Government Advocate Ajatshatru Pandey and Honourable Sanjay Kumar Singh. Heard: Mr. Saurabh Sachan, learned counsel for the applicants; Mr. Rabindra Kumar Singh, learned Additional Government Advocate assisted by Ms. Pratiksha Rai, learned brief holder for the State of Uttar Pradesh; and Mr. Ajatshatru Pandey, learned counsel appearing on behalf of the opposite party., The applicants have filed an application under Section 482 of the Code of Criminal Procedure seeking to quash the summoning order dated 21 April 2022 and the proceedings of Complaint Case No. 2513 of 2021 (Satyam Singh versus Smriti Singh), filed under Sections 494 and 109 of the Indian Penal Code, Police Station Sigra, District Varanasi, and pending before the High Court of Judicature at Allahabad., The facts are that on 5 June 2017, the marriage of the complainant (opposite party No. 2, Satyam Singh) was solemnised with the applicant (No. 1, Smriti Singh alias Mausami Singh) according to Hindu rites, but the marriage failed. Due to acrimonious relations and matrimonial dispute, applicant No. 1 lodged a First Information Report on 30 June 2017, registered as Crime Case No. 0341 of 2017, for offences under Sections 498-A, 323, 504, 506, 354 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, at Kotwali Dehat Police Station, District Mirzapur, against opposite party No. 2 and his family members Kaushlendra Pratap Singh, Suman Singh and Shivam Singh alias Banti, alleging harassment, torture and demand for additional dowry. The FIR also alleges that, for non‑fulfilment of dowry demand, she was ousted from her matrimonial home on 22 June 2017., The investigation culminated in a charge‑sheet dated 24 January 2018, submitted against all accused named in the FIR. The accused, including opposite party No. 2, challenged the charge‑sheet by filing an application under Section 482 of the Code of Criminal Procedure (No. 929 of 2019), wherein the matter was referred to a mediation and conciliation centre by order dated 10 January 2019, but the mediation failed., Applicant No. 1 also filed Criminal Miscellaneous Case No. 64 of 2018 under Section 125 of the Code of Criminal Procedure before the Principal Judge, Family Court, Mirzapur. The Family Court decided ex‑parte by order dated 11 January 2021, directing opposite party No. 2 to pay Rs 4,000 per month to his wife until she remarries., Thereafter, opposite party No. 2 made an application before higher police officials alleging bigamy by his wife Smriti Singh alias Mausami. The Circle Officer, Sadar, District Mirzapur investigated and found the bigamy allegation false, submitting an inquiry report dated 6 January 2021 to the Superintendent of Police, Mirzapur., On 20 September 2021, opposite party No. 2 filed a complaint against the applicants and several others, including Mahant Singh alias Raghvendra Singh, Jhallar Singh, Vimla Devi, Ramjit Singh and others, for offences under Sections 494 and 109 of the Indian Penal Code, alleging that applicant No. 1 had sanctified a second marriage on 3 September 2017 with Mahant Singh alias Raghvendra Singh, son of Jhallar Singh, resident of Village Bhikaripur, Police Station Kachwa, District Mirzapur, in the house of Ramjit Singh, District Varanasi, in accordance with Vidhiwat Hindu Dharm Shastra, and was living with the second husband without obtaining a divorce., The learned Magistrate, after recording the statement of the complainant under Section 200 of the Code of Criminal Procedure and his witnesses Kaushlendra Pratap Singh and Suraj Kumar Rai as PW‑1 and PW‑2, summoned the applicants and co‑accused under Sections 494 and 109 of the Indian Penal Code by order dated 21 April 2022, which is the subject of the present application., Assailing the impugned summoning order dated 21 April 2022, the applicants contend that they have been falsely implicated; the complaint of opposite party No. 2 is a counter‑blast to the FIR lodged by applicant No. 1; the alleged second marriage is vehemently denied; there is no evidence of solemnisation, no mention of Saptapadi ceremony, no priest named, and the photograph attached shows the bride’s face concealed, rendering it inadmissible; consequently, the proceeding is a malicious prosecution and an abuse of process., Learned counsel for the applicants relied upon the following Supreme Court of India judgments: (a) Bhaurao Shankar Lokhande and others versus State of Maharashtra and others, AIR 1965 Supreme Court 1564; (b) Priya Bala Ghosh versus Suresh Chandra Ghosh, (1971) 1 SCC; (c) Gopal Lal versus State of Rajasthan, (1979) 2 SCC 170., The Additional Government Advocate appearing for the State of Uttar Pradesh submitted that the FIR dated 30 June 2017 was properly investigated, the charge‑sheet dated 24 January 2018 was correctly filed, and the bigamy allegation was investigated and found false, with an inquiry report dated 6 January 2023 submitted to the Superintendent of Police, Mirzapur., The counsel for the complainant opposed the applicants’ submissions, asserting that witnesses Suraj Kumar Rai and Kaushlendra Pratap Singh had seen the second marriage and that a photograph of applicant No. 1 with Mahant Singh was filed, though he did not dispute other factual aspects raised by the applicants., Section 494 of the Indian Penal Code provides that whoever, having a husband or wife living, marries in any case in which such marriage is void because it takes place during the life of such husband or wife, shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. The section does not apply where the marriage has been declared void by a court of competent jurisdiction or where the former spouse has been absent for seven years and the person contracting the subsequent marriage informs the other of the facts., The expression ‘whoever marries’ in Section 494 must be read as ‘whoever marries validly’; if the marriage is not valid under the applicable law, it is not a marriage in the eyes of law, and the provision does not apply., To constitute an offence of bigamy under Section 494, the prosecution must establish: (i) that the accused was already married; (ii) that the first spouse was alive at the time of the second marriage; (iii) that the second marriage was celebrated in the same manner as the first; and (iv) that the second marriage is void because it occurred during the lifetime of the first spouse., Section 7 of the Hindu Marriage Act, 1955 states that a Hindu marriage may be solemnised according to the customary rites and ceremonies of either party, and where the rites include the Saptapadi (the taking of seven steps before the sacred fire), the marriage becomes complete and binding when the seventh step is taken., Having heard the submissions and perused the record, the High Court notes that on 5 September 2022 it had granted three weeks to the complainant to file a counter‑affidavit, which was not filed. The complainant Satyam Singh and witness Kaushlendra Pratap Singh are son and father and are also accused in the FIR of 30 June 2017; witness Suraj Kumar Rai is also a relative. The police investigation into the bigamy allegation was found false. The Court observes that the term ‘solemnise’ means to celebrate a marriage with proper ceremonies; without such ceremonies, there is no valid marriage, and consequently no offence under Section 494 can be made out. The alleged photograph is insufficient evidence, and the absence of evidence of Saptapadi means the essential ingredients of the offence are lacking. Therefore, no prima facie offence is established against the applicants., The Court quotes relevant Supreme Court of India judgments: Madhavrao Jiwajirao Scindia and others versus Sambhajirao Chandrojirao Angre and others (1988) 1 SCC 692, stating that when a prosecution is sought to be quashed, the test is whether the uncontroverted allegations prima facie establish the offence; State of Haryana and others versus Chaudhary Bhajan Lal and others, 1992 SCC (Cri) 426, laying down seven criteria for quashing proceedings under Section 482; Pepsi Foods Ltd. versus Special Judicial Magistrate (1998) 5 SCC 749, emphasizing the need for the magistrate to apply his mind to the facts before summoning; Dilawar Balu Kurane versus State of Maharashtra (2002) 2 SCC 135, noting that a judge exercising jurisdiction under Section 227 of the Code of Criminal Procedure must consider the broad probabilities without conducting a trial; Som Mittal versus Government of Karnataka (2008) 3 SCC 753, holding that the inherent power under Section 482 may be invoked to prevent miscarriage of justice; and Ravinder Singh versus Sukhbir Singh and others (2013) 9 SCC 245, emphasizing the court’s duty to protect an apparently innocent person from harassment., On the foregoing discussion, the High Court holds that the criminal proceedings against the applicants are a malicious prosecution and an abuse of process. The impugned summoning order dated 21 April 2022 is not sustainable and must be set aside., The impugned summoning order dated 21 April 2022 and further proceedings of Complaint Case No. 2513 of 2021 (Satyam Singh versus Smriti Singh) against the applicants are hereby quashed., The present application under Section 482 of the Code of Criminal Procedure is allowed.
id_1762	0	Ilavarasan, Petitioner, versus The Superintendent of Police, Office of the Superintendent of Police, Ramanathapuram; The Inspector of Police, Thirupalaikudi Police Station, Ramanathapuram District; Maheswaran; and Vijayan, Respondents. PRAYER: Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying the Madras High Court to issue a Writ of Habeas Corpus, to direct the respondents to produce the body or person of the detenu named Mathithra, aged 21 years, wife of Ilavarasan, before this Court and set her at liberty., The petitioner seeking production of his wife, namely Mathithra, aged about 21 years, has filed this Habeas Corpus Petition., Mr. S. Ravi, learned Additional Public Prosecutor, takes notice for the respondents 1 and 2., The case of the petitioner is that he fell in love with the detenu and, since the detenu was a minor at that time, they decided to get married after some time. In the meanwhile, the parents of the detenu performed a child marriage without her volition with the fourth respondent herein forcibly. Thereafter, the detenu voluntarily came out from the parental home and went to the petitioner's house. On 24.04.2023, the detenu and the petitioner got married. On 03.05.2023, the third respondent came to the house of the petitioner and forcibly taken away her. Hence, this petition is filed., Mr. R. Alagumani, learned counsel for the petitioner, would submit that the earlier child marriage was performed by the parents of the detenu, which was opposed by the detenu and there is no compatibility in the said marriage. Thereafter, on her own volition, the detenu decided to join with the petitioner. Accordingly, a special marriage was conducted in the presence of advocates and office bearers of the Trade Union, under Section 7‑A of the Hindu Marriage Act, 1955, and it is perfectly a valid marriage. Hence, the Madras High Court may issue a direction to the Law Enforcing Agency to secure the detenu from the fourth respondent and hand over her custody to the petitioner., The Additional Public Prosecutor appearing for the official respondents submitted that the petitioner kidnapped the detenu twice. The cases in Crime No. 46 of 2023 and C.S.R. No. 88 of 2023 were registered against the petitioner for the alleged kidnappings. Suppressing the same, the petitioner filed the present Habeas Corpus Petition in order to harass the parents of the detenu as well as the detenu. He further submitted that during enquiry, the detenu wants to go along with the husband. Accordingly, he prays for dismissal of this petition., Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the official respondents., The petitioner claims that the marriage between the petitioner and the detenu was performed in the presence of Kanagasabai M. A. B. L., and Balamurugan, who is the Deputy Secretary of State Legal Wing, District Trade Union, Tiruppur, who claim to be advocates and, based on that, the marriage was performed on 24.04.2023. A self‑respect marriage certificate was also issued by the above‑said advocates., We are wondered as to how the advocates are authorised to perform special marriages in their office or Trade Union. When a similar matter came up for consideration in S. Balakrishnan Pandiyan vs. The Superintendent of Police, Kanchipuram District and others, reported in 2014 (6) C.T.C. 129, the Madras High Court has categorically held as follows: 39. Our declaration of law that marriages performed in secrecy in the Office of Advocates and Bar Association Rooms cannot amount to solemnisation within the meaning of Sections 7 and 7‑A of the Hindu Marriage Act, cannot be used as a sword by the males for cutting the nuptial knot in matrimonial proceedings, but can be used only by the fair sex to get liberated from sham marriages of this nature. We also hold that the Certificate of Solemnisation issued by advocates will not be per se proof of solemnisation of marriage in a matrimonial dispute. 40. Coming to the propriety of advocates going to the Registration Office and presenting the Memorandum of Registration of Marriages, Mr. R. C. Paul Kanagaraj submitted that there is no bar for the advocates to present the papers for registration and he drew parallels by citing the practice of advocates presenting documents like sale deed etc. for registration before the Registration Officials. We are unable to agree with this submission of the learned counsel for the following reasons: (a) Under the Tamil Nadu Document Writers Licence Rules, 1982, all non‑testamentary documents should be prepared only by a Document Writer licensed in this behalf and it shall be duly attested by him with his full name and licence number. The Rules define 'Document Writer' as a person engaged in the profession of preparing documents. Preparation of document requires legal acumen and therefore, this falls within the province of the professional duties of an advocate. The Registrar is required to go through the recitals in the document and also check the valuation etc. At that time, when there is a doubt in law, he will have to clarify it from the person who had drafted the document. Therefore, the presence of an advocate for registration of documents becomes essential. (b) An advocate before registering a marriage issues a Solemnisation Certificate in his capacity as priest, as defined by Section 2(e) of the Act. Neither the Act nor the Rules insist upon the presence of the priest during registration. The scope of registration is to check the identity of the parties and the witnesses and the enquiry is only factual. There is no question of law or legal question involved in such an enquiry for the advocate to be present and give clarification to the Registrar of Marriages. The Registrar of Marriages is performing a public duty and the Act itself provides that he should give reasons for refusing to register a marriage and the order passed by him is an appealable one. We find there is no scope for the presence of the lawyer‑cum‑priest for effecting registration of a marriage. When the Registrar entertains any doubt with regard to the performance of the marriage, he may call upon the parties to produce further information to satisfy himself and only at that juncture, the necessity of the priest to appear before the Registrar may arise and not otherwise. Therefore, we do not approve of advocates appearing before the Registrar and presenting the Memorandum of Registration, for that would definitely lower the dignity of the Bar in the eyes of the public. The preamble of the Bar Council Rules extracted above clearly states that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non‑professional capacity, may still be improper for an advocate., A perusal of the above decision makes it clear that the marriage performed by the advocates in their office is not a valid marriage, unless the marriage is registered under the Tamil Nadu Registration of Marriages Act, 2009 and the physical appearance of the parties before the Registrar is essential. However, the petitioner claims that their marriage was performed in the presence of the office bearers. It is not a valid one. Further, the earlier marriage performed by the parents of the detenu was not questioned either by the detenu or her parents. Hence, the earlier marriage performed by the parents of the detenu is perfectly valid and the subsequent marriage performed in the presence of the advocates and office bearers of the Trade Union is invalid. After the above decision of the Division Bench, marriages performed by the advocates are not valid and disciplinary action is to be initiated against those advocates., Hence, we are of the strong opinion that this is a fit case to refer the matter to the Bar Council of Tamil Nadu to initiate disciplinary action against the advocates who performed the marriage. The Bar Council of Tamil Nadu is directed to initiate disciplinary action against Kanagasabai M. A. B. L., and Balamurugan, Deputy Secretary, State Legal Wing, District Traders Union, Tiruppur, after issuing notice to them., The Bar Council of Tamil Nadu is also directed to initiate disciplinary action against the lawyers who are conducting these types of marriages all over Tamil Nadu by issuing fake certificates, after providing an opportunity to them within a period of three months from the date of receipt of a copy of this order. The Law Enforcing Agency is also at liberty to proceed against the lawyers who are performing these types of marriages as well as the petitioner in the manner known to law., In the result, as there is no illegal custody of the detenu as alleged by the petitioner, this Habeas Corpus Petition is dismissed.
id_1763	0	Date of Decision: 07.11.2023 Petitioner through: Mister Prateek Kumar, Advocate Versus Respondent through: None for respondent Number 1 Miss Prerna Mehta and Mister Rajeev M. Roy, Advocates for respondent Number 2 Mister Abhishek Nanda and Miss Parul Tomer, Advocates for respondent Number 3, The petitioners in the instant writ petition are aggrieved by the impugned award dated 19 October 2020 passed by respondent Number 1 – Insurance Ombudsman. The said award affirmed the order dated 12 April 2020 passed by respondent Number 2 – Insurance Company, wherein the claim of the petitioners was rejected., The facts of the case would show that the petitioners have availed Master Travel Insurance Policy Number by the name of the Reliance Travel Care Policy – Corporate Short Term. The said travel policy covers both the petitioners who intended to travel by Alitalia Airlines vide flight Number AZ‑769 from Delhi to Rome (Italy) on 28 February 2020 for their honeymoon trip., The Government of India, on 26 February 2020, issued an advisory to its citizens to refrain from any non‑essential travel to Italy. The petitioners, adhering to the advice passed by the Government of India and keeping in mind a rising number of cases of Covid‑19 across the globe, decided to cancel their bookings as, according to their understanding, the places to visit became uninhabitable. Thereafter, on 11 March 2020, the World Health Organization declared the coronavirus as a pandemic and on 13 March 2020, the Ministry of Home Affairs notified the states and declared Covid‑19 as a notified disaster., On 12 April 2020, the petitioners wrote an email to respondent Number 2 – Insurance Company asserting their claim for the amount insured on account of cancellation of their trip. Respondent Number 2 – Insurance Company, on the same date, reverted back to the petitioners denying their claim on the ground that Covid‑19 is not covered under the policy., On the following day, i.e., 13 April 2020, the petitioners replied to the email dated 12 April 2020, stating that the rejection of their claim was de hors the terms of the policy and it was nowhere stated in the policy that for any reason whatsoever if the trip is cancelled, respondent Number 2 – Insurance Company would not be liable for the payment of claim. On 15 April 2020, respondent Number 2 – Insurance Company further reiterated its reason for denying the claim. On 18 April 2020, the petitioners lodged a complaint before the Head of the Grievance Redressal Cell, Reliance General Insurance Co. Ltd. In response thereto, on 5 May 2020 again, the petitioners were served with the same reason for denial of their claim., The petitioners filed a complaint under Rule 13(1)(b) of the Insurance Ombudsman Rules, 2017 before the learned Insurance Ombudsman. On 19 October 2020, the complaint of the petitioners was rejected by respondent Number 1 – Insurance Ombudsman and accordingly, the petitioners have approached the High Court of Delhi in the instant writ petition., Learned counsel appearing on behalf of the petitioners submits that the reason for rejection of the claim of the petitioners is illegal, improper and the entire understanding of respondent Number 1 – Insurance Ombudsman is based on misreading of the relevant clauses of the insurance policy. He submits that respondent Number 1 – Insurance Ombudsman is a quasi‑judicial authority which must deal with the cases objectively on the basis of material available before the concerned authority. According to him, the entire understanding of respondent Number 2 – Insurance Company and of respondent Number 1 – Insurance Ombudsman is on account of misinterpretation of Clause 7 of the policy in question., He further submits that the travel plan was not cancelled by the petitioners owing to any Government Regulation or Prohibition. He therefore submits that when the travel plan was not cancelled by the petitioners on account of any Government Regulation or Prohibition, respondent Number 1 – Insurance Ombudsman has wrongly rejected the petitioners’ claim., Learned counsel for the petitioners has placed reliance on the decisions of the Supreme Court of India in the cases of General Assurance Society Ltd. v. Chandmull Jain and Anr., Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, Gurshinder Singh v. Shriram General Insurance Company Limited and another. He has also placed reliance on the decisions of this High Court of Delhi in the cases of Pavan Sachdeva v. Office of the Insurance Ombudsman and Another and Gurmeet Singh v. Office of the Insurance Ombudsman & Others, and the decision of the High Court of Bombay in the case of Aditya Birla Sun Life v. Insurance Ombudsman and Another., None has appeared on behalf of respondent Number 1., Learned counsel appearing on behalf of respondent Number 2 – Insurance Company opposes the submissions made by learned counsel for the petitioners. She submits that in the instant case, the petitioners try to call upon the Supreme Court of India to adjudicate on disputed questions of fact. According to her, the writ petition under Article 226 of the Constitution of India is not maintainable against a private insurance company. She also submits that the High Court of Delhi, in exercise of power under Article 226 of the Constitution of India, cannot adjudicate the terms of the policies and also the petitioners have an efficacious alternative remedy available under the Consumer Protection Act, 2019. She therefore submits that in any case the rejection of the claim of the petitioners by respondent Number 2 – Insurance Company is strictly in terms of the conditions of the policy and therefore respondent Number 1 – Insurance Ombudsman has rightly rejected the petitioners’ claim., She further submits that the email dated 12 April 2020 sent by the petitioners itself unequivocally states that the petitioners have cancelled their trip on account of the advisory issued by the Government of India on 26 February 2020. She therefore submits that it is an admitted case where the petitioners, owing to the Government instructions, have cancelled their trip and therefore no interference is called for., Learned counsel appearing on behalf of respondent Number 3 – Insurance Regulatory and Development Authority of India (IRDAI) also opposes the submissions made by learned counsel for the petitioners. He submits that the petitioners, if at all they have any grievance, must avail the alternate remedy in view of the provisions of the Consumer Protection Act, 2019. He placed reliance on Rule 17(8) of the Insurance Ombudsman Rules, 2017 to submit that the award of respondent Number 1 – Insurance Ombudsman shall be binding on the insurer or insurance broker, as the case may be. He therefore contends that the petitioners are not bound by the said award and accordingly, they can avail the remedy available under the Consumer Protection Act, 2019., I have heard learned counsel appearing on behalf of the parties and have perused the record., Since the facts of the case, i.e., availment of the policy in question, cancellation of the trip etc., are not disputed, they are not required to be considered at length., The only reason for rejection of the claim of the petitioners, as can be inferred from paragraph Number 21 of the impugned award dated 19 October 2020, is the cancellation of the trip of the petitioners on account of Government Regulation or Prohibition. For the sake of clarity, paragraph Number 21 of the impugned award is reproduced as follows: \21. Result of hearing with the parties (Observations and Conclusion): Case called. Parties are present and recall their arguments as noted in Para 12 above. The Complainant had booked ticket for himself and his wife for travel to Italy and Spain from 28.02.2020 and had purchased a travelcare insurance policy from the Insurer for this trip. The Government of India issued an advisory on 26.02.2020 directing its citizens to refrain from any non‑essential travel to a few countries, that included Italy, that were showing severe onset of the Coronavirus Pandemic. The Complainant wrote an email to the Respondent Insurer on 12.04.2020 narrating these facts and also stating that as per the advisory issued by the Government of India on 26.02.2020 and being an Indian citizen, he was forced to cancel the abovementioned trip to Italy and Spain and requested the Insurer to compensate him with the insured amount due to the cancellation of the trip. The Insurer responded to the Complainant the same day (12.04.2020), stating that they regret to inform that Trip Cancellation/interruption for the said event due to Corona Virus Outbreak was not claimable as per policy terms and condition Number 2, 3 & 7 of the Exclusions. In his complaint to this forum, the Complainant has argued that the Exclusions clauses of the policy do not mention pandemic due to corona or any virus. He has also argued that the GOI Advisory dated 26.02.2020 had stated that Italy was not suitable for visit, which should be interpreted to mean that Italy had become uninhabitable, which would justify his claim for reimbursement of the cost of trip cancellation. I have gone through the arguments and evidence submitted by the Complainant and the Respondent Insurer. The policy sub‑clauses, which were referred to by the Insurer in repudiating the claim are quoted as below: What it does not cover? 2. Travel arrangements cancelled or changed by an airline, cruise line, or tour operator, unless the cancellation is the result of bad weather. 3. Changes in plans by the Insured/Insured Person, an Immediate Family Member or Travelling Companion for any reason. 7. Any government regulation or prohibition. The Complainant had cancelled the trip, as per his communication to the Insurer cited above, owing to the GOI Advisory dated 26.02.2020. This justifies the repudiation. The argument of the Complainant that the GOI Advisory should lead to the interpretation that Italy had become uninhabitable, is not justified, because the advisory was only to reduce the chances of spread of the pandemic to/from the visitors and does not give any conclusion that Italy as a country had become uninhabitable. In these circumstances, the complaint deserves to be rejected. Award The complaint is rejected\., It is, thus, seen that Clause 7 of the insurance policy states that if, besides others, the trip is cancelled on account of any Government Regulation or Prohibition, the insured would not be entitled to insurance claim. What is required to be considered in the instant case is whether the petitioners have cancelled their trip on account of any Government Regulation or Prohibition. If the entire material available on record is perused, except an advisory dated 26 February 2020, there is no Regulation or Prohibition issued by the Government of India. The advisory dated 26 February 2020 reads as follows: \Update on Novel Coronavirus (COVID‑19): New Travel Advisory Posted On: 26 FEB 2020 12:47PM by PIB Delhi In view of the evolving situation related to COVID‑19 being reported from other countries, besides the travel advisories already issued by Ministry of Health & Family Welfare, Government of India, following additional directions are issued: 1. Indians are advised to refrain from non‑essential travel to Republic of Korea, Iran and Italy. 2. People coming from Republic of Korea, Iran and Italy or having such travel history since 10th February 2020 may be quarantined for 14 days on arrival to India. 3. For any technical queries, may contact on 24×7 Health ministry Control Room helpline number +91‑11‑23978046 or email at ncov2019@gmail.com.\, If the said advisory is to be understood in the right perspective, it would indicate that in view of the evolving situation related to Covid‑19 from other countries, the Government of India issued certain directions. The directions were only advisory in nature. It includes the Indian citizens to refrain from non‑essential travel to Republic of Korea, Iran and Italy., It is, thus, seen that if the words Regulation or Prohibition are to be understood in their strict sense, the advisory cannot, at any prudent stretch of imagination, mean prohibition for Indian citizens to travel to Republic of Korea, Iran and Italy. The word advisory, as per Cambridge Advanced Learner’s Dictionary, signifies ‘an official announcement that contains advice, information, or a warning’., Therefore, as the word advisory in its plain and simple meaning would mean advice or suggestion, this High Court would interpret the word in its ordinary and popular sense. Hence, the word advisory would simply mean advice and does not construe to mean prohibition or regulation. In the instant case, if the petitioners, owing to the advisory and on due application of their mind, decided not to travel to Italy, the same cannot mean that the petitioners were prohibited by the Government of India from travelling to Italy., Therefore, the entire understanding of respondent Number 1 – Insurance Ombudsman is against the terms of the policy., This High Court, in the case of Pavan Sachdeva (supra), was dealing with the controversy relating to rejection of the claim under the Cigna TTK Health Insurance Family Policy. The respondent therein rejected the claim of the petitioners on the ground of non‑disclosure of some essential information. The respondent therein also raised similar objection with respect to maintainability of the writ petition., A coordinate bench of this High Court, in its decision in Pavan Sachdeva (supra), while relying on the decision of the Supreme Court of India in the case of Life Insurance Corporation of India and Ors. v. Asha Goel and Another, has held that the writ petition under the facts of that case was maintainable as there was no disputed question of fact involved in the said writ petition. The Supreme Court of India in the case of Asha Goel (supra) has held as follows: \Article 226 of the Constitution confers extraordinary jurisdiction on the High Court to issue high prerogative writs for enforcement of the fundamental rights or for any other purpose. It is wide and expansive. The Constitution does not place any fetter on exercise of the extraordinary jurisdiction. It is left to the discretion of the High Court. Therefore, it cannot be laid down as a general proposition of law that in no case the High Court can entertain a writ petition under Article 226 of the Constitution to enforce a claim under a life insurance policy. It is neither possible nor proper to enumerate exhaustively the circumstances in which such a claim can or cannot be enforced by filing a writ petition. The determination of the question depends on consideration of several factors like, whether a writ petitioner is merely attempting to enforce his/her contractual rights or the case raises important questions of law and constitutional issues, the nature of the dispute raised; the nature of inquiry necessary for determination of the dispute etc. The matter is to be considered in the facts and circumstances of each case. While the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution cannot be denied altogether, courts must bear in mind the self‑imposed restriction consistently followed by High Courts all these years after the constitutional power came into existence in not entertaining writ petitions filed for enforcement of purely contractual rights and obligations which involve disputed questions of facts. The courts have consistently taken the view that in a case where for determination of the dispute raised, it is necessary to inquire into facts for determination of which it may become necessary to record oral evidence a proceeding under Article 226 of the Constitution, is not the appropriate forum. The position is also well settled that if the contract entered between the parties provide an alternate forum for resolution of disputes arising from the contract, then the parties should approach the forum agreed by them and the High Court in writ jurisdiction should not permit them to bypass the agreed forum of dispute resolution. At the cost of repetition it may be stated that in the above discussions we have only indicated some of the circumstances in which the High Court have declined to entertain petitions filed under Article 226 of the Constitution for enforcement of contractual rights and obligation; the discussions are not intended to be exhaustive. This Court from time to time disapproved of a High Court entertaining a petition under Article 226 of the Constitution in matters of enforcement of contractual rights and obligation particularly where the claim by one party is contested by the other and adjudication of the dispute requires inquiry into facts. We may notice a few such cases; Mohd. Hanif v. State of Assam [(1969) 2 SCC 782]; Banchhanidhi Rath v. State of Orissa [(1972) 4 SCC 781]; Rukmanibai Gupta v. Collector, Jabalpur [(1980) 4 SCC 556]; Food Corpn. of India v. Jagannath Dutta [1993 Supp (3) SCC 635] and State of H.P. v. Raja Mahendra Pal [(1999) 4 SCC 43].\, The position that emerges from the discussions in the decided cases is that ordinarily the High Court should not entertain a writ petition filed under Article 226 of the Constitution for mere enforcement of a claim under a contract of insurance. Where an insurer has repudiated the claim, in case such a writ petition is filed, the High Court has to consider the facts and circumstances of the case, the nature of the dispute raised and the nature of the inquiry necessary to be made for determination of the questions raised and other relevant factors before taking a decision whether it should entertain the writ petition or reject it as not maintainable., It has also to be kept in mind that in case an insured or nominee of the deceased insured is refused relief merely on the ground that the claim relates to contractual rights and obligations and he/she is driven to a long‑drawn litigation in the civil court it will cause serious prejudice to the claimant/other beneficiaries of the policy. The pros and cons of the matter in the context of the fact‑situation of the case should be carefully weighed and appropriate decision should be taken., In a case where claim by an insured or a nominee is repudiated raising a serious dispute and the Court finds the dispute to be a bona fide one which requires oral and documentary evidence for its determination then the appropriate remedy is a civil suit and not a writ petition under Article 226 of the Constitution. Similarly, where a plea of fraud is pleaded by the insurer and on examination is found prima facie to have merit and oral and documentary evidence may become necessary for determination of the issue raised, then a writ petition is not an appropriate remedy., This High Court, in the case of Pavan Sachdeva (supra) in terms of paragraphs 26 to 30 has held as follows: \26. Applying the above test to the facts of the present case, it must be held that the present Writ Petition is maintainable. There are no disputed questions of fact involved in the present petition. Further, what is challenged before this court is the order passed by the Insurance Ombudsman appointed under Rule 7 of the Insurance Ombudsman Rules, 2017 (hereinafter referred to as 'Rules'). The object of the Rules is to resolve all complaints of insurance in a cost effective and impartial manner. The Insurance Ombudsman can, under Rule 16 of the Rules, make recommendations on a fair settlement, and failing a settlement, under Rule 17, pass an Award adjudicating such complaint, as has been done in the present case. The Ombudsman, in such adjudication has to keep in mind the relevant considerations required for such adjudication. Where the Writ Court finds that the Award has been passed by the Ombudsman by ignoring relevant considerations or on irrelevant considerations, it would be entitled to entertain such petition and issue a Writ of Certiorari quashing such Award. 27. In the present case, the Ombudsman has clearly failed to apply the correct test to the dispute before it. The impugned order records that the Discharge Summary dated 01.10.2017 confirms that the insured patient had Sarcoidosis since 1982. The Discharge Summary in fact, records Past Medical History as under: Sarcoidosis 1982 took steroids for 3 months. The above remark in the Discharge Summary cannot be read to mean that the petitioner continued to suffer from Sarcoidosis as has been interpreted by the Ombudsman. The impugned order has therefore, proceeded on an incorrect basis and cannot be sustained. 28. There is no dispute on the quantum of the claim of the petitioner. The petitioner has claimed Rs. 6,06,859/- towards medical reimbursement. Such claim is stated to have been made on 01.10.2017. There is no dispute on this date as well. 29. Accordingly, the respondent Number 2 is directed to pay to the petitioner, within a period of four weeks from the date of the judgment, a sum of Rs. 6,06,859/- (Rupees six lakhs six thousand eight hundred and fifty nine only) along with simple interest at the rate of 9% per annum with effect from 01.10.2017 till the date of payment. The respondent Number 2 shall also pay cost quantified as Rs. 25,000/- (Rupees twenty five thousand only) to the petitioner.\, Accordingly, the order dated 12 April 2020, passed by respondent Number 2 Insurance Company and the order dated 19 October 2020, passed by respondent Number 1 – Insurance Ombudsman, are hereby set aside., Since there is no other reason for repudiating the claim of the petitioners except Clause 7 of the insurance policy, the matter does not require to be remitted back to respondent Number 1 – Insurance Ombudsman or to respondent Number 2 – Insurance Company for fresh consideration., Accordingly, it is directed that the claim of the petitioners pertaining to policy Number be honoured within a period of four weeks from the date of receipt of the copy of the order passed today along with interest at 6% from the date the claim became due., With the aforesaid observations, the petition stands disposed of along with pending application(s), if any.
id_1764	0	PCR No. 3686/2023 dated 13 June 2023. Present: Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka. Complainant 1: Shankar Shet, son of Suresh, 41 years, residing at No. 66, Shivpura Colony, Gokul Road, Hubli, Dharwad, Karnataka 580030. Complainant 2: Mallayya Shivalingayya Hiremat, son of Shivalingayya, 43 years, residing at LIG No. 531, 14th Cross, Navanagar, Hubli, Dharwad 580025. Accused: Sri Siddaramaiah, son of Siddaramegowda, 75 years, Ex‑Chief Minister (now present), working at Room No. 204, 2nd Floor, Vidhana Soudha, residing at Residence No. 1 Kumar Krupa East, Gandhi Bhavan Road, Bangalore 560001., This private complaint is filed by the complainants under section 200 of the Code of Criminal Procedure against the accused, praying for an order to take cognizance of the offence under section 499 of the Indian Penal Code, which is punishable under section 500 of the Indian Penal Code, and to issue process to the accused., The complainants belong to the Lingayath sub‑sect of Hinduism. Complainant 2 is a Lingayath by birth and Complainant 1 has been a Lingayath since 2016. They are activists working towards the preservation and development of Lingayath culture in the State of Karnataka. The accused, who was the Ex‑Chief Minister at the time, made a derogatory and defamatory statement against the Lingayath community before the media during the 2023 General Assembly campaigning in Varuna Constituency., It is alleged that on 22‑04‑2023, while campaigning, a news reporter asked the accused his opinion on the Bharatiya Janata Party’s strategy of selecting a Lingayath candidate as Chief Minister. The accused allegedly replied by stating that Chief Ministers who are Lingayaths have spoiled the State due to their corrupt nature. The statement was made before the media and the footage was telecast on 22‑04‑2023 on all leading media channels of Karnataka. The accused’s statement that Lingayath people who had been Chief Ministers of the State have indulged in corruption is alleged to amount to the offence of criminal defamation., It is further alleged that the accused’s statement suggested that Lingayath people, because of low moral values and greed, indulge in corruption whenever they become Chief Ministers. As a result, the reputation and moral value of the entire Lingayath community have been degraded before the general public. The accused was aware that any oral statement made before the media would be telecast and published nationwide, yet he made the statement. No court has convicted or held any Lingayath Chief Minister of Karnataka guilty of offences punishable under the Prevention of Corruption Act or any other offence. The statement was aimed at damaging the reputation of the community to benefit the accused’s political career. Based on these allegations, the complainants pray to take cognizance of the offence under section 499 of the Indian Penal Code, punishable under section 500., Along with this private complaint, the complainants have produced the caste certificate of Complainant 2, a pen‑drive containing video footage showing the accused making defamatory statements, newspaper cuttings covering the statements, and a Section 65‑B certificate under the Evidence Act., After hearing the learned counsel for the complainants and perusing the averments in the complaint and the documents filed, the following points arise for consideration: (1) Whether grounds are made out to take cognizance of the alleged offences? (2) What order should be passed?, My answer to the above points is as follows: Point 1 – Negative. Point 2 – As per the final order, the following:, To take cognizance of any offence alleged by the complainants against the accused, the alleged offence must be established from the complaint and the documents produced. In the present case, the complainants allege that the accused, then Ex‑Chief Minister, made a statement before the media while campaigning for the 2023 General Assembly election in Varuna Constituency. When a news reporter asked him about the BJP’s strategy of selecting a Lingayath candidate as Chief Minister, the accused allegedly replied that Chief Ministers who are Lingayaths have spoiled the State due to their corrupt nature. This statement was telecast on 22‑04‑2023 on all leading media channels in Karnataka. The complainants claim that the statement has tarnished the entire Lingayath community, thereby damaging their reputation., Section 499 of the Indian Penal Code penalises harming the reputation of any person. Explanation‑2 to section 499 states that it may amount to defamation to make an imputation concerning a company, association or collection of persons as such. The expression ‘as such’ is significant. In AIR 1938 Sind 88 (Ahmedali Adamali v. Emperor), it was held that if a collection or company of persons is defamed, a member may complain on behalf of the whole, but the defamation must be shown to be of all persons in the association as such., Along with the complaint, a SanDisk pen‑drive containing the video footage of the campaign, wherein the alleged defamatory statement is made, was produced. During the arguments, the video was played in open court with the permission of this Special Court (Karnataka). The video shows a news reporter questioning the present Honorable Chief Minister Sri Siddaramaiah, and his answer is recorded., The statement clearly pertains only to the Chief Minister who held office at the time of the statement, not to the entire Lingayath community. No imputation has been made against the Lingayath community as such. The complainants have not suffered any legal injury; their reputation has not been lowered. Since they are not the aggrieved persons, taking cognizance of the offence would amount to an abuse of legal process. Moreover, the statement is not per se defamatory; it is a political answer given by the opposition leader to a reporter’s question. Consequently, the complainants lack locus standi, and the complaint is not maintainable. Accordingly, Point 1 is answered in the negative., Point 2 – Based on the foregoing discussion, the complaint filed by the complainants under section 200 of the Code of Criminal Procedure for the alleged offence under section 499 of the Indian Penal Code, punishable under section 500, is dismissed. (Typed by me directly on the computer, corrected and then pronounced by me in open court on 13 June 2023.)
id_1765	0	ABC v State of Maharashtra Ashwini [Age and address withheld for privacy] Petitioner versus State of Maharashtra, through Principal Secretary, Public Health Department, Mantralaya, Mumbai 400023. Respondent for the petitioner Ms Aditi Saxena, with Rachita Padwal. Respondent state Mr V M Mali, Additional Government Pleader. Dated: 20th January 2023., The name, age and address of the petitioner are withheld to protect her privacy. Rule, returnable forthwith., The petitioner first came to the High Court of Maharashtra in mid‑January 2023. By then she was in roughly her 32nd week of pregnancy. She said that a routine medical check‑up showed serious fetal anomalies and abnormalities. On 13th January 2023 the Court passed an order., On 7th September 2022 the petitioner underwent a sonography and a fetal anomaly scan at 14 weeks; the test result was normal. A few months later, on 22nd December 2022, a follow‑up sonography and fetal anomaly scan at 29 weeks showed that the fetus suffered from multiple anomalies, including microcephaly and lissencephaly, and mild uteroplacental insufficiency., On 30th December 2022 the petitioner was admitted to Sassoon General Hospital, Pune. A Medical Board was constituted as required by the Medical Termination of Pregnancy Act 1971. The Board confirmed the diagnosis of anomalies, added the possibility of intellectual disability, but held that both conditions were not life‑threatening and denied the request for a medical termination of pregnancy in view of the advanced gestational period., Paragraph 4(a) of the petition states that the petitioner and her husband have taken counselling from registered medical professionals. They say they are from a humble background with severe financial constraints and will not be able to provide additional care or meet the expenses of an infant born with such conditions. They therefore seek the intervention of the High Court of Maharashtra to permit a termination of the pregnancy. The Court immediately requires a follow‑up opinion after an examination by the Medical Board at Sassoon General Hospital, Pune., The Board must specifically address whether an infant born with these conditions is likely to require extensive and continuous medical intervention, the possible costs associated, and assess the physical and mental health condition of the mother. The Court notes the previous opinion that the condition of the fetus is not presently life‑threatening, but requires an opinion on whether a medical termination at this stage poses a risk or danger to the petitioner physically or mentally. The petitioner must be evaluated by a qualified psychiatrist attached to Sassoon General Hospital and admitted to the hospital on the same day for examination the following morning. A copy of the report may be transmitted to the email address of the learned Additional Government Pleader, with a carbon copy to the appropriate officials., On 16th January 2023 the Court took on record the report of Sassoon Hospital (marked X). The report does not controvert the medical position or the result of the tests. The condition of the fetus is undisputed: detection of microcephaly and lissencephaly. Clinical and sonographic examination shows a pregnancy of gestational age by date 33 weeks and by scan 32 weeks 6 days. The petitioner has no major medical, obstetric or psychiatric complications at present. In view of the observations by the Medical Board faculty, the deformity being correctable at government and municipal corporation hospitals free of cost, and considering the advanced gestational age, medical termination of pregnancy is not recommended with kind permission of the Hon'ble High Court of Maharashtra., Ms Saxena takes exception to this recommendation. She submits that the High Court of Maharashtra is not bound by these recommendations and draws attention to the undisputed medical condition of the fetus., Section 3 of the Medical Termination of Pregnancy Act 1971, as amended, reads: (1) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence if a pregnancy is terminated by him in accordance with the provisions of this Act. (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, or (b) where the length exceeds twenty weeks but does not exceed twenty‑four weeks, in case of a category of woman prescribed by rules made under this Act, if not less than two registered medical practitioners, in good faith, form the opinion that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. Explanation 1: Where a pregnancy occurs as a result of failure of any contraceptive device or method, the anguish caused may be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2: Where a pregnancy is alleged to have been caused by rape, the anguish caused 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 at different gestational ages shall be as prescribed by rules made under this Act. (2B) The provisions of sub‑sections (2) relating to the length of the pregnancy shall not apply to termination where such termination is necessitated by the diagnosis of substantial fetal abnormalities by a Medical Board. (2C) Every State Government or Union Territory shall, by notification in the Official Gazette, constitute a Medical Board for the purposes of this Act. (2D) The Medical Board shall consist of a gynaecologist, a paediatrician, a radiologist or sonologist, and such other members as may be notified. (3) In determining whether the continuance of a pregnancy would involve such risk of injury, 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 that age, is a mentally ill person, shall be terminated except with the written consent of her guardian. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman., Ms Saxena points out that the medical termination of a late pregnancy beyond twenty‑four weeks is not absolutely prohibited. The statute does not specify what happens if a fetal abnormality is detected late in the pregnancy. Therefore, the writ jurisdiction of the High Court of Maharashtra is invoked, and the Court must intervene., She argues that the case speaks directly to the reproductive autonomy of the woman, specifically the expectant mother. The Court does not expect a late termination of pregnancy to be rubber‑stamped simply because the petitioner wants it; the law will not pander to whimsy or caprice., The timelines in Section 3 provide a complete answer. For a married adult woman, a normal gestation runs for about 280 days or 40 weeks. Up to 20 weeks, and before 24 weeks, the statute permits termination on the opinion of a sole medical practitioner. Between 20 and 24 weeks, the good‑faith opinions of two medical practitioners are needed, addressing risk to the woman's life or grave injury to her physical or mental health, or a substantial risk that the child would be born with serious physical or mental abnormalities. Explanation 1 deals with unplanned pregnancy up to 20 weeks resulting from contraceptive failure, presuming grave mental health injury. Explanation 2 presumes grave mental health injury where the pregnancy is the result of sexual assault., Section 3(2B) states that the provisions relating to the length of the pregnancy shall not apply where termination is necessitated by the diagnosis of substantial fetal abnormalities by a Medical Board. Ms Saxena emphasizes that once a medical report confirms substantial fetal abnormalities, the time‑limits of up to 20 weeks or less than 24 weeks do not apply., She submits that the Medical Board has misdirected itself. Both conditions (i) substantial fetal abnormality and (ii) the mother being physically and mentally able to undergo the procedure are satisfied. Therefore, the Board cannot, in law, render any other opinion as to whether termination should be performed solely on the basis of the length of the pregnancy., Ms Saxena refers to a Guideline Note for medical records for termination of pregnancy beyond 20 weeks issued by the Government of India, Department of Health and Family Welfare, National Health Mission. The note lists major fetal abnormalities; Category A includes central nervous system abnormalities, item 15 being microcephaly. The petitioner’s fetus has microcephaly and lissencephaly, with mild uteroplacental insufficiency, as confirmed by a private clinic report and by antenatal MRI performed on 7th January 2023., The Centers for Disease Control and Prevention (CDC) describes microcephaly as a birth defect where a baby’s head is smaller than expected, often associated with smaller brains, seizures, developmental delays, speech problems, movement and balance issues, feeding difficulties, hearing loss and vision problems. The condition may be lifelong, severe cases can be life‑threatening, and there is no known cure; constant medical follow‑up is required., Lissencephaly, meaning “smooth brain”, is a rare gene‑linked brain malformation characterized by absence of normal cortical folds and often associated with microcephaly. It results from defective neuronal migration, causing facial abnormalities, difficulty swallowing, failure to thrive, muscle spasms, seizures, severe psychomotor retardation, and may be associated with other conditions. There is no cure; supportive care is required., The National Institute of Neurological Disorders and Stroke (NINDS) reports that many children with lissencephaly die before the age of three, usually from aspiration, respiratory disease, or severe seizures. Some may survive with minimal development, while a few achieve near‑normal development, underscoring the need for specialist opinion., Thus the petitioner’s fetus is affected by both microcephaly and lissencephaly, indicating a poor prognosis with no prospect of a normal healthy life. The Medical Board has overlooked this., The three‑judge decision of the Supreme Court in X v Principal Secretary, Health & Family Welfare Department, Government of NCT of Delhi & Anr (2022 SCC OnLine SC 1321) elaborates the jurisprudential facets underlying the Medical Termination of Pregnancy Act. The Court noted constitutional values such as the right to reproductive autonomy, the right to live a dignified life, the right to equality and the right to privacy., The Supreme Court explained that reproductive rights include the freedom to decide on all matters relating to sexual and reproductive health, access to education and information about contraception, the right to choose whether and when to have children, the right to safe and legal abortions, and autonomy free from coercion or violence., It further observed that reproductive autonomy is closely linked with bodily autonomy. The consequences of an unwanted pregnancy on a woman’s body and mind cannot be understated; forcing a woman to continue an unwanted pregnancy infringes on her right to bodily and decisional autonomy., In Suchita Srivastava (supra) the Court recognized reproductive autonomy as a dimension of personal liberty under Article 21, affirming that women have the entitlement to carry a pregnancy to term, give birth, raise children, and also the right not to procreate., Decisional autonomy, an integral part of the right to privacy, allows individuals to make intimate decisions about their bodies. The Court has held that personal aspects such as family, marriage, procreation and sexual orientation are intrinsic to dignity, and that the right to privacy protects autonomy in matters of bodily integrity, including decisions about termination of pregnancy., The right to dignity encapsulates the right of every individual to be treated as a self‑governing entity with intrinsic value. Denying women the choice to terminate an unwanted pregnancy strips them of autonomy over their bodies and lives, violating their dignity., Refusing a medical termination of pregnancy solely on the ground of delay would condemn the fetus to a sub‑optimal life and rob the petitioner‑mother of her right to dignity, reproductive autonomy and decisional autonomy. The petitioner knows there is no possibility of a normal healthy baby., Ms Saxena submits that the Medical Termination of Pregnancy Act, a progressive statute, should not be read in a misogynistic or patriarchal manner to force the petitioner mother into a choice that is not hers. The petitioner’s modest means and the severe prognosis of the fetus mean that a rejection of the petition based only on the Medical Board’s opinion would violate her reproductive autonomy, right to privacy, right to self‑determination and her fundamental right to make an informed choice about her body.
id_1765	1	Accepting the Medical Board's view is therefore not just to condemn the fetus to a substandard life but is to force on the petitioner and her husband an unhappy and traumatic parenthood. The effect on them and their family cannot even be imagined., Miss Saxena is appropriately restrained in what she says. But there is no mistaking her true message. Hers is an appeal not only to the judicial mind but to the moral conscience that must accompany it., We are mindful of our limitations in writ law although our powers under Article 226 of the Constitution of India are indeed wide. They are discretionary. They are equitable. But every petition under Article 226 invoking fundamental rights under Part III of the Constitution is an appeal to the judicial conscience. Cases such as this often raise profound moral questions and dilemmas. But this is immutable: that the arc of the moral universe always bends towards justice., Through Miss Saxena, this is what we hear the petitioner say: If my petition be dismissed, I am fated to deliver a child who has no prospect of a normal childhood or anything remotely resembling a normal life, one who will not live fully and in health, one who may not even survive beyond 20 January 2023, the age of 10. I found out about this very late in my pregnancy. No one is to blame. But at least cede to me the choice to determine what I and I alone may decide should be done with and to my body. Do not deny me my right to dignity, my various autonomies and freedoms. Do not deny me the right to determine the trajectory of my life and my marriage. Do not deny me my freedom of choice., When it is put to us like this, whether from habit or training or received wisdom, we turn to the Act for answers. You will find none there, Miss Saxena tells us, and we do believe she is correct. The Act is of 1971. It was ahead of its time. But in the cold sterility of a legislation, we must discern where justice lies when it is to be applied to the human condition. This is not a case where a blanket invocation of this or that provision will provide an answer. We must ensure above all that the rights of the petitioner including those enunciated by the Supreme Court of India are never compromised in the sometimes blind application of a statute. Justice may have to be blindfolded; it can never be allowed to be blindsided. We are agnostic about the relative positions of parties. We can never be agnostic about where justice needs to be delivered., Another question has greatly troubled us. What if after carrying this fetus to term, the petitioner finds she cannot tend to it? Is she then to be forced to make the next decision, to give up a child in adoption? How is that to be done? More importantly, why should that have to be done? The opinion of the Medical Board is oddly silent on this. It only addresses medical interventions, the availability of ongoing treatments and nothing more. It does not take into account the social and economic position of the petitioner and her husband. It ignores their milieu entirely. It does not even attempt to envision the kind of life with no quality at all that the petitioner must endure for an indefinite future if the Board's recommendation is to be followed. The Board really does only one thing: because late, therefore no. And that is plainly wrong, as we have seen. Given a severe fetal abnormality, the length of the pregnancy does not matter., In cases such as these, we believe courts must calibrate themselves to not only the facts as they stand but must also consider that what these cases present are, above all, profound questions of identity, agency, self‑determination and the right to make an informed choice. We will not ignore the petitioner’s social and economic condition. We cannot. We believe Miss Saxena is correct in her submissions. The petitioner takes an informed decision. It is not an easy one. But that decision is hers, and hers alone to make, once the conditions in the statute are met. The right to choose is the petitioner’s. It is not the right of the Medical Board. And it is also not the right of the Court to abrogate the petitioner’s rights once they are found to fall within the contemplation of the law., The recommendation of the Board does not appeal to us at all., In these circumstances, we allow the petition and permit the medical termination of the petitioner’s pregnancy., To protect the petitioner’s privacy, we are making a separate operative order. The operative order is not to be uploaded., We should be remiss if we did not commend Miss Saxena for the manner in which she has conducted this case. We discern her profound engagement with the issue at its broadest level, and we believe we can gauge at least to some extent the depth and intensity of her concern. But she has most admirably tempered both emotion and passion, throughout maintaining the necessary reserve and addressing herself to the state of the law. For his part, Mister Mali, learned Advocate General of the State, is to be appreciated for his restraint. A referral to the Board may be mandated by statute, but he himself is also conscious of the condition of the petitioner. His only duty, he submits, is to bring to the notice of the Supreme Court of India that a certain procedure needs to be followed. His second duty is of course to assure the Court that the petitioner will get whatever support she needs from the hospital. There will be no compromise in that regard. We express our appreciation of the stand he takes., Rule is made absolute in these terms. No costs.
id_1767	0	Judgment reserved on 10 October 2022; judgment delivered on 12 October 2022. Through: Mr. N. Hariharan, Senior Advocate, with Mr. Bharat Chugh, Mr. Siddharth Shiva Kumar, Mr. Siddarth S. Yadav, Mr. Varun Deswal, Ms. Punya Rekha Angara, Mr. Prateek Bhalla, Mr. Sharian Mukherji, Mr. Rahul, Mr. Kaushal Kaushik and Mr. Adab Ahmad, Advocates, versus Through: Mr. Aman Usman, Assistant Public Prosecutor for the State. Counsel for complainant (appearance not given)., An application under Section 389 read with Section 482 of the Criminal Procedure Code has been preferred on behalf of the appellant for suspension of sentence and release of the appellant on bail during the pendency of appeal. The appellant has preferred the appeal against the judgment dated 02 July 2022 and order on sentence dated 13 July 2022 passed by the learned Additional Sessions Judge, Patiala House Courts, New Delhi in First Information Report No. 684/2015 under Sections 376(2)(n) and 313 of the Indian Penal Code registered at Police Station R. K. Puram whereby he has been sentenced to undergo rigorous imprisonment of ten years for the offence punishable under Section 376(2)(n) of the Indian Penal Code and directed to pay a fine of Rs 6 lakh (in default of payment of fine to undergo simple imprisonment for one year). However, the appellant stands acquitted of the offence under Section 313 of the Indian Penal Code., Learned counsel for the appellant submits that there is patent infirmity in convicting the accused as crucial evidence in favour of the appellant has been overlooked and challenges the impugned judgment on the following grounds: the learned Trial Court erred in concluding that the appellant obtained the prosecutrix's consent for sexual intercourse on a false promise of marriage; there is patent illegality in the impugned judgment as glaring lacunae in prosecution evidence have been overlooked and there is overwhelming unrebutted evidence on record that the prosecutrix herself had written blogs posted on social media indicating she did not believe in the institution of marriage; the appellant met the complainant on the social media application Tinder, which is known for casual dating, and the prosecutrix herself did not believe in the idea of marriage, making it improbable that she was misled by an alleged promise of marriage; there is overwhelming evidence that the prosecutrix knew the appellant was already married with two children, falsifying the theory of an alleged promise to marry, with reliance placed upon the testimony of DW‑3 (wife of the appellant) and the names of the children engraved on the appellant's forearm as permanent tattoos, which the prosecutrix likely noticed but feigned ignorance during cross‑examination, and the alleged sexual encounters on 26 May 2015 and 10 June 2015 have been denied with no corroborative evidence to infer rape; no corroborative evidence was collected from Hyatt Hotel regarding the alleged sexual encounter, although the prosecutrix is alleged to have bled during assault while on her menstrual cycle, and the stay at Hyatt Hotel on 26 May 2015 was only at the behest of the prosecutrix, while evidence of an alleged abortion undertaken by the prosecutrix at the appellant's behest is far from sterling and the appellant's presence at the time of abortion is not confirmed, rendering the prosecutrix's testimony unworthy of belief due to lack of specific details and improvements in her testimony; the present First Information Report was lodged after a delay of about 88 days with no explanation; the learned Trial Court acquitted the appellant under Section 313 of the Indian Penal Code, disbelieving the prosecutrix's testimony and concluding that she consented to termination of the alleged pregnancy, and erred in invoking the presumption under Section 114 of the Indian Evidence Act; the report of defence expert DW‑2 examined on behalf of the appellant was wrongly ignored by the learned Trial Court, and reliance is placed upon numerous judgments including Uday v. State of Karnataka (2003) 4 SCC 46, X (Assumed Name) v. State & Anr., Criminal Revision Petition 110/2017, Gravit Indora v. National Capital Territory of Delhi 2015 SCC OnLine Del 9673, Babu v. State of Kerala 2013 SCC OnLine Ker 24124, Rai Sandeep @ Deepu v. State of NCT of Delhi (2012) 8 SCC 21, Narender Kumar v. State (NCT of Delhi) (2012) 7 SCC 171, Rajesh Namdeo Mhatre v. State of Maharashtra (2002) 4 Mh LJ 266, Chinniah Server v. State of Madras and Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, Rachna Singh v. State 2019 SCC OnLine Del 8519, Ganesan v. State (2020) 10 SCC 573, Sadashiv Ramrao Hadbe v. State of Maharashtra (2006) 10 SCC 92, Kanan and Ors. v. State of Kerala (1979) 3 SCC 319, Dana Yadav v. State of Bihar (2002) 7 SCC 295, Padum Kumar v. State of Uttar Pradesh (2020) 3 SCC 35, Dudh Nath Pandey v. State of Uttar Pradesh 1981 2 SCC 166, Pradeep Saini v. State 2009 SCC OnLine Del 2803, Aiyali v. State Bank of India 1993 SCC OnLine MP 252, Rajesh Patel v. State of Jharkhand (2013) 3 SCC 791, Babu Singh v. State of UP (1978) 1 SCC 579, Angana v. State of Rajasthan (2009) 3 SCC 767, Atul Tripathi v. State of UP (2014) 9 SCC 177 and Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) SCC (Cri) 553. The counsel also submits that the appellant's father requires dialysis on a daily basis and that the appellant is the father of two daughters who are dependent on him for their education and livelihood., On the other hand, the application has been vehemently opposed by the Assistant Public Prosecutor for the State along with counsel for the complainant. It is pointed out by the prosecution that the complainant was duly examined at Safdarjung Hospital and her statement under Section 164 of the Criminal Procedure Code was recorded, wherein she supported her version as given in the complaint. The prosecution asserts that the appellant misled the complainant for sexual intercourse on a false promise of marriage and that reliance cannot be placed upon the social posts or blogs by the prosecutrix as her thought process may change, which does not preclude believing that she was duped by a false promise. It is further urged that the prosecutrix was not aware of the appellant's marital status and that the testimony of the appellant's wife, DW‑3, was rightly rejected. The delay in registration of the First Information Report has been duly explained by the prosecution., I have given considered thought to the contentions raised. It may be reiterated that the Appellate Court, at the stage of suspension of sentence and release on bail till disposal of the appeal, has to examine whether there is any patent infirmity in the order of conviction that renders the conviction prima facie erroneous. The evidence is not to be re‑assessed or re‑analyzed to suspend the execution of the sentence. Detailed observations on the merits of the case are not called for at this stage lest they prejudice the petitioner, but the matter must be seen in the light of settled principles of law., Reverting back to the facts of the present case, it may be observed that the detailed submissions on behalf of the appellant point out that the fact of the appellant's marriage was already known to the prosecutrix. Further, the blogs and posts on social media made by the prosecutrix appear to reflect that she had reservations about the institution of marriage and supported the idea of a live‑in relationship; these observations are relevant since the blogs were made prior to the alleged reporting of the incident. It appears that the sexual encounter initially at Hyatt Hotel on 26 May 2015 was completely voluntary. The evidence relating to the incident dated 10 June 2015 also requires deeper scrutiny in light of the defence evidence led on behalf of the appellant. While the evidence is not to be re‑assessed for the purpose of execution of the sentence, the infirmities pointed out on record need consideration. It may also be noticed that the disposal of the appeal is likely to take some time., Having regard to the evidence on record and the infirmities pointed out by counsel for the appellant, I am of the considered opinion that the sentence of the appellant be suspended till the disposal of the appeal and that he be admitted to bail on furnishing a personal bond of Rs 25,000 (Rupees Twenty‑Five Thousand only) with two sureties in the like amount to the satisfaction of the learned Trial Court, subject to the following conditions: the appellant shall provide his mobile number to the Investigating Officer, Station House Officer and the concerned trial court at the time of release, which shall be kept in working condition at all times and shall not be switched off or changed without prior intimation; the appellant shall not indulge in any criminal or illegal activity during the bail period; the appellant shall be released on bail, subject to deposit of the fine amount. The application for suspension of sentence is accordingly allowed. These observations are made solely for the purpose of consideration of the application for suspension of sentence and shall have no bearing on the final disposal of the appeal. A copy of this order shall be forwarded to the Superintendent of Jail and the learned Trial Court for information and compliance.
id_1768	0	Appellant versus the State of Maharashtra and another Respondents: Mr. Murtaza Najmi with Mrs. Farida Murtaza Najmi, Ms. Davinder Sabharwal, Ms. Siddhi Ghogale, Ms. Sulbha Chakranarayan and Ms. Aqsa Tajuddin for the Appellant. Mr. S. R. Agarkar, A. P. P. for the State. Ms. Sonali Sable with Mr. Macchindra Bodke for Respondent No.2/Complainant present., The Appellant was tried by the Special Judge at the Special Court, Mumbai in Protection of Children from Sexual Offences (POCSO) Special Case No. 203 of 2016 for offences punishable under Sections 363, 376, 107 and 109 of the Indian Penal Code and under Sections 4, 6 and 17 of the Protection of Children from Sexual Offences Act, 2012. He was convicted by judgment and order dated 21 February 2019 and sentenced to rigorous imprisonment for ten years under Section 6 of the POCSO Act and ordered to pay a fine of Rs. 2,000. In default, he would undergo rigorous imprisonment for one month. Although found guilty of offences under Section 376 of the Indian Penal Code and Sections 4 and 6 of the POCSO Act, no separate punishment was awarded for those offences., The prosecution case was presented before the learned Special Judge through Witness 1, the brother of the prosecutrix, and the prosecutrix herself (Witness 4). The key points are as follows:, Witness 1 deposed that his sister was attending a madrasa and that when their grandmother, residing in Jharkhand, died on 29 January 2016, all family members except his sister, his wife and their children went for the last rituals. On 30 January 2016 he received a phone call from his wife informing him that his sister was missing from the house, and he immediately went to Mumbai and began a frantic search. About a month before the incident he had become aware that his sister was having an affair with the accused and, suspecting the accused’s involvement, lodged a complaint expressing his suspicion. He mentioned his sister’s age as 17 years. The FIR was lodged on 1 February 2016, registering an offence under Section 363 of the Indian Penal Code., The prosecutrix and the accused were traced at Hadgood, District Anand, State of Gujarat. Both were brought to Byculla Police Station where her statement was recorded under Section 164 of the Criminal Procedure Code. The birth certificate collected during investigation, which was actually a school leaving certificate, revealed her date of birth as 5 September 1998. Since she was a minor, offences under Section 376 of the Indian Penal Code and Sections 4 and 6 of the POCSO Act were added., The prosecutrix was sent for medical examination to Grant Government Medical College and Sir J. J. Hospital, Mumbai. She gave a history of a love relationship with a known person for one year, admitted to having penovaginal sexual intercourse multiple times with his consent, and narrated that the person had promised marriage but later denied it. The medical examination recorded old healed hymenal tears at the 4 and 8 o’clock positions. As the examination was conducted seven days after the incident, no fresh injuries were observed., The prosecutrix was pregnant of 14.6 weeks and aborted the pregnancy on 22 March 2016 with her father’s consent. DNA testing of the fetal femur bone compared with maternal blood and cord blood, and with the accused’s DNA, conclusively recorded that the aborted fetus had the prosecutrix and the accused as biological parents., The accused faced charges of kidnapping the prosecutrix from Mumbai and transporting her to Gujarat and Uttar Pradesh, and of committing rape from 30 January 2016 to 18 March 2016. He was also charged under Sections 3 and 4 of the POCSO Act. Along with the present appellant, two other persons were charge‑sheeted for abetting the offence and were charged under Section 109 read with Section 34 of the Indian Penal Code and under Section 17 of the POCSO Act. The accused pleaded not guilty, and the prosecution examined six witnesses, including the prosecutrix as Witness 4., The prosecutrix, a student in the 10th standard at a girls’ high school, produced her original birth certificate (school leaving certificate) showing a date of birth of 5 September 1998. She stated that she had known the accused for two years prior to the incident, as he was a friend of her brother and visited their house, though her father restrained him from coming inside, leading them to meet outside. He gave her his mobile number, and she called him. He expressed willingness to marry her and took her to a lodge where they established a sexual relationship., In January 2015, on the accused’s suggestion, she left her house because her father did not accept the relationship. She accompanied co‑accused Amir while her family members were out of Mumbai due to a relative’s demise. She stated that she was taken to Gujarat and then to Uttar Pradesh via Rajasthan, where she stayed for one month before returning to Gujarat. She hired a room and stayed with the accused for one week until her father, with police assistance, tracked her and brought her home. She admitted that throughout the period she was in the company of accused No.1 there was a sexual relationship., She also admitted that at Sir J. J. Hospital she terminated her pregnancy and, after discharge, returned home. Relevant admissions from her deposition include:, \Our love affair was going on for one to two years. It is true that there was a difference in financial condition between his family and my family. Our financial condition was sound while his financial condition was poor. The accused and his family members were working in my father’s factory. On 30 January 2016 when I left home my Badi Bhabhi was at home. Badi Bhabhi did not go to Jharkhand because of her children’s school while I stayed to accompany her. It is not true that my father did not take me and Badi Bhabhi to Jharkhand as our relatives there were aware of my love affair. I told my father that I would not go to Jharkhand because I intended to elope with the accused.\, When I was staying with the accused I wrote two letters to Dongri Police Station, one in Hindi and another in English, both bearing my signature. These letters are marked as Exhibit 46 (Letter in Hindi) and Exhibit 47 (Letter in English)., It is not true that today, because of family pressure, I am deposing false things. It is not true that our Nikah was performed on 6 September 2014. It is true that in Gujarat, Rajasthan and Uttar Pradesh we stayed as husband and wife. As per Sharia, a girl below the age of 18 can marry if she is willing. As per Sharia, a Muslim man can marry more than once, but for a second marriage the permission of the earlier wife is necessary., The letters at Exhibit 46 and Exhibit 47 state that she is Muslim by religion and, as per Muslim Personal Law, she is an adult capable of performing Nikah. She claimed that her Nikah was performed on 6 September 2014 with the accused, that she consented freely, and that she had attained puberty, making her eligible to marry under Islamic law. She also alleged that her father opposed the marriage, pressured her for divorce, and later abducted her, keeping her under CCTV surveillance and emotionally blackmailing her to separate from her husband. She asserted that she informed the police that the Nikah was performed without any influence, inducement, threat, force or coercion, and that she was residing with her legally wedded husband of her own free consent. She also stated that she was pregnant and feared her father would not permit her to reside with her husband., There is no birth certificate on record; the document exhibited as Exhibit 45 is actually a school leaving certificate of Hume High School, showing her caste as Muslim and date of birth as 5 September 1998, with the date of leaving school recorded as 31 January 2013. The investigating officer claimed to have collected the original birth certificate, but the exhibit is a school leaving certificate. The prosecutrix was a minor, aged 17 years and 5 months at the time of lodging the FIR., The prosecutrix’s deposition, including cross‑examination, shows that she had a love relationship with accused No.1, that she willingly accompanied him when her family members were absent, and that she stayed with him for over a month in Gujarat, Rajasthan and Uttar Pradesh, even visiting a dentist and receiving treatment for pregnancy. She categorically admitted that she stayed with accused No.1 projecting herself as his wife., The learned Special Judge rightly acquitted the appellant from the offence of kidnapping under Section 363 of the Indian Penal Code, specifically appreciating the willful act of the prosecutrix in accompanying the accused, and relying on the decision of the Apex Court in S. Varadarajan v. State of Madras., The issue before the learned Special Judge was whether the prosecution proved that from 30 January 2016 to 17 March 2016 the accused committed rape, penetrative sexual assault or aggravated penetrative sexual assault on the prosecutrix, who was below 18 years, and whether he is guilty of offences under Section 376 of the Indian Penal Code and Sections 4 and 6 of the POCSO Act. The judge recorded a finding in the affirmative that the prosecution proved the charge., The judge noted that although the relationship was consensual, the prosecutrix was a minor of about 17 years and 5–6 months. Under the definition of rape in Section 375 of the Indian Penal Code, if the victim is a minor, sexual intercourse with or without her consent amounts to rape. Therefore, the consensual sex was treated as rape., The judge also considered the capacity of a Muslim girl to contract marriage upon attaining puberty without guardian consent, as per Article 251 of the Mohammedan Law, which presumes puberty at age 15 in the absence of evidence. However, the Indian Majority Act modifies this, and a Muslim girl aged about 15 may still be a minor under Indian law and under Section 361 of the Indian Penal Code. Consequently, the case was not considered kidnapping, but the rape conviction under Section 376 of the Indian Penal Code and Sections 4 and 6 of the POCSO Act was upheld., In reviewing whether the judge’s finding justifies the conviction and sentence, the evidence of Witness 4 and Witness 1 shows that the prosecutrix had a love affair with the accused, known to her family, which opposed the alliance. She eloped with the accused while senior family members were absent, consistent with the principle laid down in S. Varadarajan., The prosecutrix claimed that a Nikah was performed on 6 September 2014, but the prosecution did not produce any evidence of the marriage. Investigating officers were silent on the matter, and although a Kazi’s statement was recorded, the Kazi was not called as a witness, so the claim was not proved., The prosecution’s examination revealed a strong bond of love between the prosecutrix and the accused for almost two years, strongly opposed by her family. Witness 1 admitted that the family did not take her to Jharkhand for the grandmother’s rites to avoid scandal. The prosecutrix also stated that she was never asked for a Nikahnama and that when she confronted the accused about the alleged marriage, he denied it., The central question is whether, given that the prosecutrix was 17 years and 5 months old at the time of the FIR and voluntarily engaged in sexual intercourse with the accused, the act attracts liability under the POCSO Act and constitutes rape under Section 376 of the Indian Penal Code, despite the consensual nature of the relationship., Section 375, by virtue of Explanation 2, defines consent as an unequivocal voluntary agreement communicated by words, gestures or any form of verbal or non‑verbal communication, and clarifies that a woman who does not physically resist the act of penetration shall not be deemed to have consented solely on that basis., Sexual autonomy encompasses both the right to engage in wanted sexual activity and the right to be protected from unwanted sexual aggression.
id_1768	1	Only when both aspects of an adolescent's rights are recognized can human sexual dignity be considered fully respected. Development of sexuality starts as early as intrauterine life following conception and continues through infancy, childhood, adolescence, adulthood and till death. Self‑awareness about sexuality evolves during childhood. Adolescence is a phase of transition during which major developments of sexuality take place, with puberty marked as a major landmark in the journey of sexuality. During this period cognitive development occurs, resulting in development of thinking and reasoning. It is also a phase of emotional development, involving social involvement, peer interaction and sexual interest. Different behavioural experimentation is seen in early adolescence, risk‑taking in middle adolescence, followed by a stage of assessing one's own risk, accompanied by changes in lifestyle due to urbanisation, migration, education and mixing of cultures, each factor contributing in its own way to development. Adolescence is a period during which an individual's thought, perception and response become coloured sexually. It is an age to explore and understand sexuality. Sexual curiosity in adolescence often leads to exposure to pornography, indulgence in sexual activities and increased vulnerability to sexual abuse. Sometimes it is difficult to control the feelings arising in an adolescent, in the wake of many critical biological and psychological changes occurring during this phase. Development of secondary sexual characteristics and psychological changes often aid these challenges. These are supplemented by family and society's attitude as well as cultural influence, particularly at the time of puberty. Various factors play a major role in deciding the adolescent's sexual behaviour after puberty., With the advent of easy accessibility of information and the widespread use of the Internet as a resource for sexual information, especially among adolescents, the appeal lies in the ease and anonymity with which an online seeker can obtain information regarding sensitive topics. This generates curiosity, which may have positive as well as negative influences on today's youth. In the era where adolescents have free access to the Internet, mobile devices, over‑the‑top platforms and movies, which create a deep impact upon their minds, coupled with inquisitiveness about sex along with physical attraction towards the opposite sex and infatuation, the issue of youthful sexuality must be tackled in the current society by appropriately moderating their behaviour., The United Nations formally defines an adolescent as a person between ten and nineteen years of age and a young person as between ten and twenty‑four years of age in the South Asia Region. The roots of the age of consent are traced back to a nineteenth‑century case of Phulmoni Dasi, a minor woman who married a man aged thirty‑five when she was eleven and died when her husband forcibly consummated the marriage. This incident, an alleged rape of a minor girl, led to the enactment of the Age of Consent Act, 1891. Though the husband was acquitted of the rape charge, he was found guilty of causing death by rash and negligent act. Over time, the age of consent has been increased by various statutes in India and was maintained at sixteen from 1940 till 2012, when the Protection of Children from Sexual Offences Act raised the age of consent to eighteen years, probably one of the highest ages globally, as the majority of countries have set their age of consent in the range of fourteen to sixteen years. Children in the age group of fourteen are considered capable of giving consent to sex in countries such as Germany, Italy, Portugal and Hungary. In England and Wales, the age of consent is sixteen. Among Asian countries, Japan has set the age of consent at thirteen. In Bangladesh, Section 9(1) of the Women and Child Abuse Prevention Act, 2000 defines rape as sexual intercourse with a woman, with or without her consent, when she is below sixteen years of age. Similarly, in Sri Lanka the age of consent is sixteen. In comparison, as far as India is concerned, the age of marriage for male and female is fixed at twenty‑one and eighteen years respectively as per the Child Marriage Prohibition Act, 2006. The definition of the term child varies from statute to statute and, as per the Protection of Children from Sexual Offences Act, any person below eighteen years is considered a child and the Act criminalises all sexual activities for those under the age of eighteen years, even if the act was committed by consent., This aspect of the Protection of Children from Sexual Offences Act was flagged by various High Courts. In G. Vijayalakshmi versus State, the Madras High Court, while dealing with a petition for quashing proceedings against the accused under the Indian Penal Code, the Protection of Children from Sexual Offences Act and the Prohibition of Child Marriage Act, 2006 on the ground of consent, found that during the trial the victim and her family turned hostile, stating that the relationship was consensual and that she had eloped with the accused. On personally interacting with the victim and examining her statement given on oath, the Court was satisfied that the relationship with the accused was consensual. However, the rigours of the Protection of Children from Sexual Offences Act would not have permitted quashing of proceedings, since any sexual indulgence with a minor falls within the scope and ambit of the Act in the form of Sections 4, 6 etc., Justice N. Anand Venkatesh, relying upon the earlier decision of the learned single judge in Sabari versus Inspector of Police, held that there can be no second thought as to the seriousness of offences under the Protection of Children from Sexual Offences Act and the object it seeks to achieve. It is also imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for the severity of the sentences provided under the Act, if applied hastily or irresponsibly, could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What began as a law to protect and render justice to victims and survivors of child abuse can become a tool in the hands of certain sections of society to abuse the process of law., The learned single judge, in Sabari's case, recognised that incidences where teenagers and young adults fall victim to offences under the Protection of Children from Sexual Offences Act being slapped against them without understanding the implication of the severity of the enactment is an issue that brings much concern to the conscience of this Court. A reading of the Statement of Objects and Reasons of the Protection of Children from Sexual Offences Act shows that the Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India and the Convention on the Rights of the Child. However, a large array of cases filed under the Act arise on the basis of complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other. The scheme of the Act clearly shows that it did not intend to bring within its scope cases where adolescents or teenagers are involved in consensual romantic relationships., This view was followed by another judgment of the Calcutta High Court, Justice Sabyasachi Bhattacharya, in Ranjit Rajbanshi versus State of West Bengal and Others, while dealing with an appeal filed by a convict who was held guilty of penetrative sexual assault. The learned judge noted the physical intimacy between the accused and the victim and also referred to the meeting between the families to propose a marriage, which did not work out. In this background, the question arose whether the provisions of the Protection of Children from Sexual Offences Act should be applied to a voluntary joint act of sexual union. Recording that the victim was above sixteen years but below eighteen years, Justice Bhattacharya posed the moot question of how consent should be regarded when the girl is seventeen years and three hundred sixty‑four days old, but on the next day, at seventeen years and three hundred sixty‑five days, she is capable of giving consent., The Karnataka High Court, in State of Karnataka versus Basavraj son of Yellappa Madar, made pertinent observations: the aim and objective of the Protection of Children from Sexual Offences Act is to protect minor children from sexual exploitation and it is clear that a minor cannot provide consent, the minor under the Act being a person under the age of eighteen years. Having come across several cases relating to minor girls above the age of sixteen who have fallen in love, eloped and had sexual intercourse with a boy, the Court expressed the opinion that the Law Commission of India should rethink the age criteria to take into consideration ground realities. The aspect of consent even by a girl of sixteen years and above would have to be considered if there is indeed an offence under the Indian Penal Code or the Protection of Children from Sexual Offences Act. Normally when evidence is led that the victim is a major, the testimony of an act committed while she was a minor would have to be given due value. It is also seen that many of the offences deemed under the Act are a result of lack of knowledge on the part of the minor girl and the boy, who are often closely related or well known to each other as classmates., In the case of Atul Mishra versus State of Uttar Pradesh, while deciding the bail application of the accused who had committed an offence under the Protection of Children from Sexual Offences Act, the Court noted that the victim and the accused knew each other from school, had eloped and were staying together for a few years, even having a child together, clearly indicating that the relationship was consensual. The Court focused upon the aspect of the teenagers and concluded that a bio‑social approach needs to be adopted, one that conceptualises the biological and social requirements of two teenagers who, on account of mutual infatuation, are attracted and decide their future. Their decision could be impulsive and immature but certainly not sinful or tainted as branded in the First Information Report or complaint of the informant., Recently, Justice Deepak Kumar Agarwal, a judge of the Gwalior Bench of the Madhya Pradesh High Court, requested the Central Government to reduce the age of consent for females to sixteen, observing that the present age of eighteen is disturbing the fabric of society, as it is based upon adolescents' choice. Justice Agarwal recorded that every male or female of fourteen years, due to social media awareness and easily accessible internet connectivity, is reaching puberty early and gets attracted to each other, which ultimately results in consensual physical relationships., The scenario that emerges is that, with a girl below eighteen considered a minor, there is a presupposed notion that she is not expected to indulge in sexual activity and, even if she does, her consent is immaterial and considered no consent in the eyes of law. Such an act would be classified as statutory rape, as one of the persons is legally too young to consent, and, since her consent is deemed no consent, the act attracts the charge of rape and a grave offence under the Protection of Children from Sexual Offences Act. Consequently, even a boy aged twenty who engages in sexual intercourse with a girl aged seventeen years and three hundred sixty‑four days would be found guilty of rape despite the girl's admission of equal participation. The minor is not considered capable of giving valid consent in the eyes of law for entering into consensual sex., The concern about the rising number of cases where minors are punished under the Protection of Children from Sexual Offences Act is being expressed in various proceedings before the Supreme Court of India, the High Courts of the country and the POCSO Special Courts where such cases are tried. Despite a clear stand by a female that the act was consensual, the male counterpart is convicted under the Protection of Children from Sexual Offences Act with the specific reasoning that the Act was never intended to include consensual sex with a minor., A case of physical attraction or infatuation always arises when a teenager enters into a sexual relationship, and it is high time that our country is cognisant of developments around the world. In a country like Japan, a student‑supported movement is gaining momentum. It is necessary that India observes global trends, but one thing is certain: if a young boy is castigated for committing rape on a minor girl merely because she is below eighteen, despite being an equal participant, he would suffer a severe dent that he will have to carry lifelong. With no option left to the courts trying POCSO cases to impose punishment lesser than that prescribed for penetrative sexual assault, the accused necessarily has to undertake the maximum punishment. In this scenario, the question posed by the Madhya Pradesh High Court regarding the injustice faced by adolescent boys assumes great significance. Ultimately, it is for Parliament to ponder the issue, but being cognisant of the cases before the courts, many of which involve romantic relationships, is essential., The United Nations Committee on the Rights of the Child, in General Comment No. 20, with respect to the minimum age of consent for sexual intercourse, has urged States to strike a balance between protection of children from sexual exploitation and abuse and respect for their evolving autonomy. It has recommended that States parties should take into account the need to balance protection and evolving capacities and define an acceptable minimum age when determining the legal age for sexual consent. States should avoid criminalising adolescents of similar ages for factually consensual and non‑exploitative sexual activity., While all children are entitled to protection from sexual violence, such protection should also enable young people to extend their boundaries, exercise choices and engage in necessary risk‑taking without exposing them to inappropriate harm. The penal approach towards adolescent sexuality has created barriers to access to sexual and reproductive health services. The criminalisation of romantic relationships has overburdened the criminal justice system, consuming significant time of the judiciary, police and child protection system, and when the victim turns hostile by not supporting the charge against the accused, it can result in acquittal. Though the Protection of Children from Sexual Offences Act cannot stop natural feelings towards the opposite sex, particularly during a period of biological and psychological changes, punishing a minor boy who entered into a relationship with a minor girl who were driven by hormones would be against the best interest of the child. The State's duty to safeguard the ability to make decisions and protect individual autonomy should not deprive adolescents of this right. The mere apprehension that adolescents might make impulsive and bad decisions cannot be used to classify them uniformly, and ignoring their will and wishes is inappropriate. The age of consent must be distinguished from the age of marriage, as sexual acts do not occur only within the confines of marriage, and the judicial system must take note of this important aspect., A balance between the protection of a vulnerable class and those capable of exercising the power to decide what is right for them must be struck. As rightly observed by Justice D. Y. Chandrachud in Justice K. S. Puttaswamy (Retd.) versus Union of India, the duty of the State is to safeguard the ability to make decisions – the autonomy of the individual – and not to dictate those decisions., A provision which does not take into consideration societal realities and proceeds on the assumption that every sexual indulgence with a minor, irrespective of whether she was capable of being an equal participant, has created a situation resulting in acquittal of the accused in cases of consensual sexual relationship where the age gap between the accused and the victim is small., Turning to the facts before me, the accused and the prosecutrix were involved in a love affair. The girl left her house of her own accord and accompanied the accused, travelling to different states and addressing letters to police stations stating that she willingly accompanied the accused and referring to a Nikah being performed with him. With the evidence on record, the learned Special Judge of the POCSO Special Court correctly concluded that there was no evidence establishing that the accused had taken away or enticed her, and therefore an offence under Section 363 of the Indian Penal Code was not made out. However, considering that she continued to stay with the accused and a physical relationship was established while she was aged seventeen years and five to six months, the Judge concluded that the act amounted to an offence of rape, as her consent was immaterial since she was a minor. Consequently, the Special Judge recorded a finding of guilt against the accused under Section 376 of the Indian Penal Code as well as Sections 4 and 6 of the Protection of Children from Sexual Offences Act., In the wake of the clear case of consensual sex emerging from the prosecution, between a girl aged seventeen years and five months and a man aged twenty‑five, merely because the statute provides punishment for sexual indulgence where the girl has not attained the age of maturity i.e., eighteen, and despite her conduct indicating she understood the consequences, I am of the opinion that the learned Special Judge erred in convicting the appellant for the offence of rape under Section 376 of the Indian Penal Code and the offences under Sections 4 and 6 of the Protection of Children from Sexual Offences Act and awarding him the sentence in the impugned judgment., As a result of the above discussion, the impugned judgment dated twenty‑first February two thousand nineteen passed by the learned Special Judge in POCSO Special Case No. 203 of 2016 is set aside. The appellant is entitled to liberty, being acquitted of the charges levelled against him, and shall be released forthwith unless his custody is required in some other criminal case.
id_177	0	Daily Order Consumer Complaint No. CC/270/2023 dated 2 February 2024. Date of Institution: 25 May 2023. Date of Decision: 2 February 2024., Complainants: 1. Rajesh Chopra, son of Sh. S.K. Chpora, residing at House No. 1006, Sector 43 B, Chandigarh. 2. Gamini Chpora, wife of Rajesh Chopra, residing at the same address. 3. M/s Air India Ltd., Sector Commercial Office 162‑164, Sector 34‑A, Chandigarh, represented by its authorized representative, Director and Managing Director. Second address: Sector Commercial Office No. 1‑13, Airlines House, Gurudwara Rakab Ganj Road, Parliament Street, behind All India Radio, Delhi., Opposite parties: Sh. Mandeep Singh Rawat, Advocate for the opposite parties. Advocate for complainants: Sh. Daksh Prem Azad. The matter was presided over by Pawanjit Singh, President., The present consumer complaint has been filed by the complainants under Section 34 of the Consumer Protection Act, 2019 against the opposite parties. The complainants had booked two air tickets on 12 January 2023 from New York John F. Kennedy International Airport Terminal 4 to Delhi Indira Gandhi International Airport Terminal 3, flight number AI 102, Class D, seat 10E, with departure on 20 January 2023 and arrival on 21 January 2023. For the tickets the complainants paid a total amount of Rs 8,24,964 for both tickets (Annexure C‑1). The complainants are senior citizens and complainant No. 1 is a brain‑stroke patient and handicapped; therefore they booked business‑class tickets to travel comfortably., Complainant No. 1 had travelled to the United States for physiotherapy sessions, but during the flight the complainants were forced to sit on broken seats that had only a stool for foot support for a continuous 14‑hour journey. The seats could not be reclined to a lie‑flat position, resulting in excessive swelling and pain in the feet of complainant No. 1. Photographs of the defective seat are annexed as Annexure C‑2, the medical record of complainant No. 1 as Annexure C‑3, photographs of the feet as Annexure C‑4, and copies of physiotherapy sessions as Annexure C‑5., The complainants expressed extreme distress at the condition of the aircraft despite paying a large amount for business‑class tickets, indicating deficiency in service by the opposite parties. The complainants, through their son, raised the concern by email (Annexure C‑6 dated 23 January 2023), to which the opposite parties replied (Annexure C‑7) without any satisfactory result, only expressing regret for the inconvenience. Subsequently, the complainants sent a legal notice (Annexure C‑8) by registered post, which was replied by the opposite parties (Annexure C‑11) alleging that the complainant should have been vigilant regarding the seat selection for a 14‑hour journey. The alleged conduct amounts to deficiency in service and unfair trade practice by the opposite parties. The opposite parties were requested several times to admit the claim, but no result was obtained, leading to the present consumer complaint., The opposite parties were properly served and, when they did not appear before this Commission, the matter proceeded ex parte on 25 July 2023. During the pendency of the complaint, counsel for the opposite parties sought permission to join the proceedings and was allowed to join subsequent proceedings., In order to prove their case, the complainants have tendered their evidence by way of affidavit and supporting documents. The learned counsel for the parties were heard and the file was examined carefully., It is an admitted fact that the complainants are senior citizens and purchased business‑class tickets from the opposite parties for travel from New York to Delhi, paying Rs 8,24,964 as shown in Annexure C‑1. The facilities of the business‑class seats were not provided, resulting in health issues such as swelling of the leg and feet of complainant No. 1. The documents produced on record need to be examined to determine the real controversy., Annexure C‑1 is the electronic ticket itinerary receipt and boarding passes indicating the two business‑class tickets. Annexure C‑2 is a photograph showing that only a stool was provided in front of the complainants. Annexure C‑4 is a photograph sheet clearly indicating swelling of the legs and feet of complainant No. 1, which was diagnosed by Medical Officer Ravi Kumar Jain on 26 January 2023 (Annexure C‑3). Annexure C‑5 is the billing sheet indicating that physiotherapy was provided to complainant No. 1. Annexure C‑6 is the email sent by the son of the complainants raising concerns about the difficulties faced during the journey. Annexure C‑8 is the legal notice sent by the complainants raising concerns about the inconvenience faced during the long journey., The allegations made by the complainants, supported by the duly sworn affidavit and documentary evidence, clearly prove that the seats allotted were defective as they did not slide or move forward, causing physical pain and discomfort due to swelling in the legs and feet throughout the long air journey. The complainant also underwent treatment for the swelling from the medical officer. Since the complainants suffered physical inconvenience and mental agony because of the defective seats, the opposite party airline is bound to compensate the complainants, especially complainant No. 1, for its deficiency in providing service., In view of the foregoing discussion, the consumer complaint is partly allowed. The opposite parties are directed to pay an amount of Rs 50,000 to the complainants as compensation for mental agony and harassment, and Rs 10,000 to the complainants as costs of litigation., The order shall be complied with by the opposite parties within 45 days from the date of receipt of the certified copy, failing which they shall pay the amounts mentioned above with interest at 12 % per annum from the date of this order until realization, apart from complying with the direction regarding costs. Pending miscellaneous applications, if any, are disposed of. Certified copies of this order shall be sent to the parties free of charge. The file is to be consigned.
id_1770	0	Supplementary gd/ssd/cm/ Debajyoti /Kole/ Tanmoy (Through Video Conference) Writ Petition (Arbitration) 10504 of 2021 Shri Firhad Hakim @ Bobby Hakim & Ors. Mr. Tushar Mehta, Solicitor General of India; Mr. Y.J. Dastoor, Additional Solicitor General of India; Mr. Samrat Goswami, Advocate for the petitioner and Applicants in Criminal Application No. 5 through Dr. Abhishek Manu Singhvi, Senior Advocate; Mr. Kalyan Bandopadhyay, Senior Advocate; Mr. Sandip Dasgupta, Advocate; Mr. Niladri Bhattacharya, Advocate; Mr. Ayan Kumar De, Advocate for the applicants in Criminal Application Nos. 1, 3 & 4 through Vice Chancellor; Mr. Siddharth Luthra, Senior Advocate; Mr. Debayan Sen, Advocate for the respondent in Criminal Application No. 2 of 2021 through Vice Chancellor; Mr. Kishore Dutta, Advocate General; Mr. Abhratosh Majumder, Additional Advocate General; Mr. Sayan Sinha, Advocate for the State through Vice Chancellor Arijit Banerjee, Judge. These four applications have been filed by four accused persons in a criminal case initiated against them and others under Section 120B of the Indian Penal Code read with Sections 7, 13(2) and 13(1)(a) & (d) of the Prevention of Corruption Act, 1988. The applications are for recalling an order dated 17 May 2021 passed by the Supreme Court of India in Writ Petition (Arbitration) 10504 of 2021., By that order, the Supreme Court of India stayed the operation of the bail order passed by the learned Judge, Special CBI Court No. I, City Sessions Court, Calcutta, on 17 May 2021 in favour of the present applicants who had been taken into custody on that very morning. It was further directed that the accused persons shall be treated as being in judicial custody till further orders. The reasons for which the Supreme Court of India stayed the operation of the bail order are recorded in its order dated 17 May 2021 and have nothing to do with the merits of the bail order., The facts which are not in dispute are that a case under the Prevention of Corruption Act was registered against many accused including some Ministers in the present Government of West Bengal, on the directions issued by the Supreme Court of India. In view of various orders passed by the Supreme Court of India, the investigation and prosecution of cases against Members of Parliament and Members of Legislative Assembly were to be monitored by the Court. It was only thereafter that the matter was expedited. Sanction of prosecution was granted by the Competent Authority and four accused were arrested on the morning of that day. They were to be produced in court., Immediately after their arrest, a mob started gathering outside the Central Bureau of Investigation office. At 10.50 hours, the Chief Minister of West Bengal, Smt. Mamata Banerjee, sat on dharna in the CBI office. It is claimed by Mr. Tushar Mehta, Solicitor General of India, that she was demanding their unconditional release, a fact not denied by the learned Advocate General. In addition, the learned counsel for the Central Bureau of Investigation stated that the Law Minister of the State, along with supporters, mobbed the court where the accused were to be presented along with the charge sheet. The Law Minister remained in the court complex throughout the day until the arguments were heard., In these facts and circumstances, any order passed by the Supreme Court of India would not have the faith and confidence of the people in the system of administration of justice. Public trust and confidence in the judicial system would be eroded if such incidents are allowed to happen in matters where political leaders are arrested and are to be produced in court. The people may feel that it is not the rule of law that prevails but a mob that has the upper hand, especially when it is led by the Chief Minister in the CBI office and by the Law Minister in the court complex. If the parties to a litigation believe in the rule of law, such a system must be followed., In our opinion, the aforesaid facts are sufficient to take cognizance of the present matter with reference to the request of the Solicitor General of India for examination of the issue regarding transfer of the trial. We are not touching the merits of the controversy but the manner in which pressure was sought to be put will not inspire confidence of the people in the rule of law. As the arguments were being heard, the order was passed by the Special CBI Court No. I, City Sessions Court, Calcutta; we deem it appropriate to stay that order and direct that the accused persons shall be treated as being in judicial custody till further orders. The authority in whose custody they are kept shall ensure that they have all medical facilities available as required and that they are treated in terms of the provisions of the Jail Manual., The grounds urged in the present applications for recalling the Supreme Court of India's order dated 17 May 2021 are manifold, including that the order was passed without giving notice to the applicants who have been vitally affected by being deprived of the benefit of the bail order passed by the Special CBI Court. We are in the process of hearing these applications along with Criminal Application No. 5 of 2021 filed in Writ Petition (Arbitration) 10504 of 2021 by the Central Bureau of Investigation, wherein the prayers are firstly for transfer of the criminal proceedings to the Supreme Court of India in exercise of power under Section 407 of the Code of Criminal Procedure; secondly, to declare the proceedings dated 17 May 2021 before the Special CBI Court to be a nullity in the eyes of law; and thirdly, for continuance of the Supreme Court of India's order dated 17 May 2021 pending final hearing and disposal of the CBI's application. Hearing of the said applications is yet to be concluded. However, a prayer has been made for interim bail on behalf of the four accused persons., As stated above, by the Supreme Court of India's order dated 17 May 2021, the bail granted in favour of the four accused persons was stayed until further orders. We have heard Dr. Abhishek Manu Singhvi, Mr. Siddharth Luthra and Mr. Kalyan Bandopadhyay, Senior Advocates appearing for the applicants in the recalling applications; Mr. Tushar Mehta, Solicitor General of India appearing for the Central Bureau of Investigation; and Mr. Kishore Dutta, Advocate General for the State of West Bengal. This order is confined to the issue of whether interim bail should be granted to the accused persons as was done by the Special CBI Court., It is admitted that the accused persons are all advanced in age. The applicant in Criminal Application No. 1 of 2021 is about 62 years old; the applicant in Criminal Application No. 2 of 2021 is about 75 years old; the applicant in Criminal Application No. 3 of 2021 is around 80 years old and the applicant in Criminal Application No. 4 of 2021 is about 75 years old. It is also not in dispute that the applicants suffer from various age‑related and other ailments. Presently, the applicants in Criminal Applications No. 2, 3 and 4 of 2021 are stated to be in a hospital while in judicial custody. It has not been disputed by the learned counsel for the Central Bureau of Investigation that the applicants have always co‑operated with the investigating officer. Three of the applicants are Members of the Legislative Assembly of West Bengal and two of them are also State Cabinet Ministers. One of the applicants is a former Mayor of Calcutta. They are all permanent residents of Calcutta. There is little chance of absconding or flight risk insofar as the applicants are concerned., The Solicitor General of India submitted that if the applicants are released on bail, they are likely to tamper with evidence and intimidate prosecution witnesses by using their high position and influence in society. This argument does not appeal to me. The case dates back to 2014 and the FIR is of 2017. If the applicants indeed intended to tamper with evidence, they would have done so by now. Investigation against the present applicants is complete and the charge‑sheet has been submitted against them, as stated unequivocally in paragraphs 9 and 10 of the remand application filed by the Central Bureau of Investigation before the Special CBI Court. It is also stated that further investigation against the other accused persons is continuing. I have not understood how custodial detention of the applicants is necessary any more, or how further investigation against the other accused persons will be hampered if the applicants are not detained in custody., Additionally, the Honorable Supreme Court of India has also said that in these times of the COVID‑19 pandemic, bail should be granted liberally unless custodial detention of the accused is absolutely essential. In view of the aforesaid, I am of the view that the applicants have made out a prima facie case for interim bail. Accordingly, the applicants, namely Firhad Hakim @ Bobby Hakim, Shri Sovan Chatterjee, Madan Mitra and Subrata Mukherjee, shall be released on bail upon furnishing bail bonds of Rs.50,000 (Rupees Fifty Thousand) each with two sureties of Rs.25,000 (Rupees Twenty‑Five Thousand) each to the satisfaction of the learned Chief Metropolitan Magistrate, Calcutta and on the further condition that they must co‑operate with the Investigating Officer in respect of further investigation of the case and shall meet the Investigating Officer once every fortnight until further orders. The applicants shall also not, whether by themselves or through any other person, make any attempt to tamper with evidence or intimidate/threaten any of the prosecution witnesses. In case of breach of any of the said conditions, the interim bail hereby granted will be liable to be cancelled.

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