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Criminal Original Petition No. 7664 of 2021 is filed by the petitioners Vilkrishnan, son of Raji, and Vediyappan, son of Kulanthai, against the State represented by the Inspector of Police, Deevattipatty Police Station, Salem District, in Crime No. 14 of 2020. The petition seeks bail under Section 439 of the Criminal Procedure Code. For the petitioners, counsel is Mr. R. Sankarasubbu; for the respondent, counsel is Mrs. M. P. Rabhavathi, Additional Public Prosecutor., The first and second petitioners were arrested and remanded to judicial custody on 18 March 2021 and 19 March 2021 respectively for offences punishable under Sections 188, 120(b), 121, 121(A), 124(A) of the Indian Penal Code and Sections 10, 13, 15, 18 of the Unlawful Activities (Prevention) Act, 1967, in Crime No. 14 of 2020. They now seek bail., The prosecution alleges that all the petitioners are supporters of a banned militant organisation. The husband of the deceased individual, identified as Manivasagam, is said to have died in a police encounter. In support of the deceased, the petitioners allegedly raised slogans praising the deceased and also abused the Honourable Prime Minister and police personnel. Consequently, a criminal case has been registered against all the petitioners., The learned counsel appearing for the petitioners submits that the alleged occurrence took place in the year 2019 and the only allegation is that the petitioners raised slogans in praise of the deceased militant leader, who is the husband of the deceased individual in this case. No allegation of any violence has been made. The main accused, identified as A1, and others were already released on bail, whereas the petitioners have been in jail for more than 45 days. Accordingly, bail is prayed for., The learned Additional Public Prosecutor appearing for the respondent strongly opposes the bail petition on the ground that all the accused are supporters of a banned militant organisation and, on 11 February 2019, following the death of one militant leader, the petitioners raised slogans against the Government and abused Government officials. She points out that other arrested accused were released on bail and therefore opposes granting bail to the petitioners., Considering that the only allegation is the raising of slogans praising the deceased militant leader and that similarly placed co‑accused were released on bail, and taking into account the period of incarceration suffered by the petitioners, this Court is inclined to grant bail to the petitioners subject to the conditions specified below., The petitioners are ordered to be released on bail upon executing a bond for a sum of Rupees Ten Thousand Only (Rs. 10,000) with two sureties, one of whom must be a blood‑related surety, each for a like sum to the satisfaction of the Principal Sessions Judge, Salem. The conditions are: (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 verify identity; (b) the petitioners shall report to the respondent police daily at 10:30 a.m. until further orders; (c) the petitioners shall not tamper with evidence or witnesses during investigation or trial; (d) the petitioners shall not abscond during investigation or trial; (e) on breach of any of the aforesaid conditions, the learned Magistrate or Trial Court may take appropriate action against the petitioner as if the conditions had been imposed and the petitioner released on bail by the learned Magistrate/Trial Court, in accordance with the judgment of the Honourable Supreme Court in P. K. Shaji v. State of Kerala [(2005) AIR SCW 5560]; and (f) if the accused thereafter absconds, a fresh FIR may be registered under Section 229-A of the Indian Penal Code., Date: 30 April 2021. Signed by: (1) The Principal Sessions Judge, Salem; (2) The Inspector of Police, Deevattipatty Police Station, Salem District; (3) The Central Prison, Salem; (4) The Public Prosecutor, High Court, Madras.
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Petitioner: Bhola Singh and another. Respondent: State of Uttar Pradesh and five others. Counsel for petitioner: Dharam Veer Singh. Counsel for respondent: G. A. Honourable Saurabh Shyam Shamshery, Judge., This is a habeas corpus petition alleging that the corpus is the wife of petitioner No. 1. To prove that they were legally married, Sri Dharam Veer Singh, learned counsel for the petitioners, has placed reliance upon a certificate issued by Arya Samaj Mandir, Ghaziabad, a certificate of registration of marriage and certain photographs., Sri Sunil Srivastava, on instructions, submits that a First Information Report has been lodged against petitioner No. 1 by the father of the corpus, petitioner No. 2, and that the investigation is ongoing., The High Court of India has been presented with marriage certificates issued by different Arya Samaj societies, which have been seriously questioned during various proceedings before this court as well as by other High Courts. The said institution has misused its beliefs in organizing marriages without even considering the genuineness of documents, and since the marriage has not been registered, only on the basis of the certificate it cannot be deemed that the parties were married., Otherwise also, habeas corpus is a prerogative writ and an extraordinary remedy. It cannot be issued as a right but only when reasonable grounds or probability is shown (see Mohammad Ikram Hussain v. State of Uttar Pradesh and others, 1964 All India Reporter 1625 and Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 Supreme Court of India). The petitioners have other remedies available under criminal and civil law; therefore, the present writ petition for habeas corpus at the behest of the husband to regain his wife as corpus is not maintainable as a matter of course, ignoring that the marriage cannot be deemed to be solemnized., Since a First Information Report has been lodged against petitioner No. 1 by the father of petitioner No. 2 and the investigation is ongoing, there is no case of illegal detention.
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Mister Sandeep Sethi, Senior Advocate with Mister Atif Shamim, Advocate versus Central Bureau of Investigation. Respondent through Mister Mridul Jain, Special Police Prosecutor for Central Bureau of Investigation. Judgment reserved on 01 September 2020, date of decision 15 September 2021. The appellant, by the present appeal, assails the impugned judgment dated 25 April 2001 and the impugned order on sentence dated 26 April 2001 of the Special Court, Tis Hazari Courts, Delhi in relation to Reference Case Number 47(A)/96 - Delhi whereby the appellant was convicted for offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 186/201 read with Sections 511, 224 and 332 of the Indian Penal Code, 1860., The impugned order on sentence dated 26 April 2001 sentenced the appellant as follows: For the offence under section 7 of the Prevention of Corruption Act, the prescribed sentence is imprisonment of not less than six months and may extend to five years and also a fine. The court sentenced the appellant to simple imprisonment for two years and a fine of Rs 2,000, or in default simple imprisonment for two months. For the offence under section 13(2) read with Section 13(1)(d), the punishment is imprisonment of not less than one year and may extend to seven years and also a fine. The appellant was sentenced to simple imprisonment for three years and a fine of Rs 5,000, or in default further simple imprisonment for three months. For the offence under section 201, the punishment is imprisonment of a term which may extend to one fourth of the longest term of imprisonment provided for the offence, or with fine or both, if the offence is punishable with less than ten years of imprisonment. Section 511 provides that where no express provision is made for the punishment of such attempt, punishment shall be imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment of the largest term provided for the offence, with fine as provided for the offence or both. The court sentenced the appellant to simple imprisonment for three months and a fine of Rs 500, or in default simple imprisonment for ten days, for the offence punishable under section 201 read with section 511 of the Indian Penal Code. For the offence under section 332, the appellant was sentenced to simple imprisonment for one year and a fine of Rs 1,500, or in default simple imprisonment for one month. For the offence under section 224, the appellant was sentenced to simple imprisonment for six months and a fine of Rs 1,000, or in default simple imprisonment for twenty days. All substantive sentences shall run concurrently and the appellant shall be entitled to the benefit of set‑off for any period undergone in custody during investigation or trial., By order dated 23 May 2001, when the present appeal was admitted (Criminal Miscellaneous Number 911/2001), an application under section 389 of the Criminal Procedure Code, 1973, for suspension of sentence was submitted on behalf of the appellant stating that the fine had already been deposited. The grant of bail was disposed of with directions that the sentence awarded to the appellant was suspended on submission of a personal bond of Rs 15,000 with one surety in the like amount to the satisfaction of the Special Court., The prosecution version, through the charge sheet dated 29 August 1996, states that the appellant, while posted and functioning as a public servant in the capacity of Assistant Sub‑Inspector No. 2979/D, Police Post Shanti Nagar, New Delhi, falling under the jurisdiction of Police Station Keshav Puram, Delhi, abused his official position and demanded a sum of Rs 10,000 as a bribe from Shri Sunil Kumar Aggarwal, son of Shri Shyam Lal Aggarwal, against whom the appellant was investigating a complaint lodged by Shri Bal Krishan Aggarwal on 04 June 1996 concerning the disappearance of his daughter Alka Aggarwal. It was alleged that the appellant accepted a sum of Rs 5,000 from Shri Sunil Kumar Aggarwal as a reward for not initiating any action against him., The charge sheet further indicates that Shri Bal Kishan Aggarwal, son of Shri Sant Lal, lodged a complaint on 04 June 1996 with the Officer In‑charge, Police Post Shanti Nagar, alleging that his daughter Alka Aggarwal had disappeared from the house since 28 May 1996 and that Shri Jagdish Jindal, his sons Pawan Jindal and Surinder Jindal, and others including Sunil Kumar Aggarwal were involved in her kidnapping. The complaint was marked to the appellant, Shri Ram Naresh Tiwari, then posted as an Assistant Sub‑Inspector for further action. On 06 June 1996, the appellant raided the residence of Shri Jagdish Jindal, brought Shri Jagdish Jindal and his son Pawan Jindal to the police post, obtained an undertaking from them to attend the police post on 07 June 1996, and allowed them to return to their residence at 2 a.m. on 07 June 1996., On 07 June 1996, Shri Surinder Kumar Jindal married Ms Alka Aggarwal at the Arya Samaj Mandir, Anarkali, New Delhi, and the complainant informed the appellant that he was no longer interested in the complaint. The appellant telephoned Shri Sunil Kumar Aggarwal four times, directing him to contact the police post. On 15 June 1996, Shri Sunil Kumar Aggarwal, along with his friend Shri Surinder Jindal, contacted the appellant at the police post and informed him that the matter was over as the marriage had already been solemnised. The appellant demanded a bribe of Rs 10,000 from Shri Sunil Kumar Aggarwal and, on the complainant’s request, directed him to pay Rs 5,000 by 4 p.m. on 15 June 1996, failing which the appellant would arrest Shri Sunil Kumar Aggarwal despite no case being registered. Shri Sunil Kumar Aggarwal did not pay the bribe and lodged a complaint with the Superintendent of Police, Central Bureau of Investigation, Delhi on 15 June 1996, requesting legal action against the appellant for demanding a bribe., The charge sheet states that the bribe amount of Rs 5,000 was recovered from the cavity between the tabletop and the drawers, the notes were tallied, and witnesses confirmed the notes as mentioned in Annexure A to the handing‑over memo. The appellant’s left‑hand wash turned pink, indicating that he had accepted the bribe with his own hands. After a personal search, the appellant was allowed to change his dress and, on the pretext of going to the urinal, fled by jumping from the roof but was caught and brought back to the police post. Formalities were recorded in a recovery memo dated 15 June 1996. The Deputy Commissioner of Police, North‑West District, Delhi, in the sanction order dated 08 August 1996, after being fully satisfied with the facts and circumstances, opined that a prima facie case for offences punishable under section 7 and section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and sections 186, 201 read with sections 511, 224, 332 and 353 of the Indian Penal Code, 1860, was made out., The appellant’s defence included the following witnesses: DW‑1, HC Basti Ram, Police Station Keshav Puram, who produced the daily diary register of June 1996 containing entries dated 15 June 1996; DW‑2, HC Jagat Singh, Sub‑Inspector, DCP (North‑West), Police Station Keshav Puram, who produced the receipt and dispatch register showing sanction for prosecution in Reference Case Number 47(A)/96‑Delhi dispatched to the Superintendent of Police, Central Bureau of Investigation, New Delhi, but could not produce the sanctioned file; DW‑3, Shri Kulbushan Mehta, Advocate, who appeared on behalf of the appellant before the Duty Magistrate at Patiala House Courts and submitted an application for medical examination of the appellant under section 54 of the Criminal Procedure Code; DW‑4, Sub‑Inspector Jaipal Singh, Police Training College, Zharoda Kalan, New Delhi, who was in charge of Police Post Shanti Nagar in June 1996 and testified that on 15 June 1996 he returned to the post, was informed by Constable Pratap Singh that persons in plain clothes had apprehended the appellant, that the appellant was being beaten and manhandled, and that he inquired about the bribe money, which the CBI officials claimed could not be recovered. He further stated that he reported the incident to the Station House Officer and Additional Station House Officer, and that later CBI officials threatened to summon him under section 160 of the Criminal Procedure Code., The learned Special Judge of the Special Court, Tis Hazari Courts, Delhi, after considering the evidence and the appellant’s statement under section 313 of the Criminal Procedure Code, held that the sanction for prosecution dated 08 August 1996, as evidenced by Exhibit Prosecution Witness 2/A, was perfectly valid and legal. The Judge observed that despite discrepancies and contradictions in the prosecution evidence, the testimony of Prosecution Witness 3, the complainant, was fully corroborated by the shadow witness, Prosecution Witness 4, Shri Naresh Kumar, regarding acceptance of the tainted money as a bribe and its recovery from the appellant’s possession. The Judge noted that it is difficult to find a case bereft of embellishment, exaggeration, contradictions and inconsistencies, and that witnesses, when not tutored, give natural and spontaneous versions. The Judge rejected the appellant’s contention that the complainant bore a grudge, and observed that the appellant had failed to substantiate that the tainted money was not recovered from his possession. The Court further held that the testimony of DW‑4 did not inspire confidence, especially when the sanctioning authority had stated that a prima facie case under sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and sections 186, 201 read with sections 511, 224 and 332 of the Indian Penal Code was made out against the appellant.
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A pending with him and which admittedly had not been filed by him despite the knowledge that the marriage between Alka and Surinder with the consent of Petitioner Witness 7 (i.e. Shri Bal Krishan Aggarwal) had already taken place on 08.06.1996 which date is prior to that of the trap, i.e., 15.06.1996. The learned Trial Court further held to the effect that it was proved that the statement of the complainant was recorded as Exhibit Petitioner Witness 3/D by the accused on 01.06.1996 and that statements of Jagdish Gupta and Pawan Kumar were recorded on 08.06.1996 in the case registered on the complaint of Bal Krishan Aggarwal, Petitioner Witness 7 as per Exhibit Petitioner Witness 6/B-1 to B-9 after they were summoned by the accused but were released in the night on 06.06.1996 after preparing their search memos with direction to appear again at the Police Post Shanti Nagar in the morning. On 08.06.1996 they had made the statement regarding marriage between Alka, daughter of Bal Krishan, and Surinder Kumar, son of Jagdish Gupta and brother of Pawan Kumar, and that the complainant was one of the suspects in the complaint of Petitioner Witness 7 and therefore it was natural motivation for the accused to ask for illegal gratification from the complainant to absolve him of the case registered on the complaint of Bal Kishan Aggarwal which would have been otherwise filed on 08.06.1996 in view of the statements made by the other persons named as suspects. Inter alia it was held vide the impugned judgment that there was no reason for the accused to record the statements of the complainant on 15.06.1996, the day on which the trap was laid., The learned Trial Court further held to the effect that the accused, i.e., the appellant herein, had tried to create evidence to rebut the initial demand on 15.06.1996 as set up vide Exhibit Diary Writer 1/A, 1/B and 1/C and observed also to the effect that the manipulation of these daily diaries was reflected from the fact that while all entries made on 15/16.06.1996 were in the hand of the daily diary writer but the entry with regard to the accused at item No.10 carried over to the next page (Exhibit Diary Writer 1/B) is in his own hand and that all other entries thereafter were also in the hand of the daily diary writer on duty. It was further observed by the learned Trial Court that vide Exhibit Diary Writer 1/C, the Central Bureau of Investigation officials had made the entry at serial No.24 which reads as follows: “At 9:35 P.M. today, the Central Bureau of Investigation party after investigation of the accused left the premises of Police Post for Central Bureau of Investigation, Lodi Road, New Delhi, after affecting the arrest of Shri R.N. Tiwari, Assistant Sub-Inspector of Police Post, who was caught red handed while demanding Rs.10,000 and accepting Rs.5,000 as bribe from the complainant while the process was going on. Shri Tiwari made efforts to destroy evidence as well as run away from the Police Post but could not succeed in his efforts. Shri Sri Prasad and Surinder Kumar, who had sustained injuries, have been rushed to Hindu Rao Hospital for medical relief. The accused Shri R.N. Tiwari has been since arrested and grounds of his arrest informed to him as well as to the site Police Station Keshav Puram. He shall be produced before the Competent Court tomorrow.” The Central Bureau of Investigation party had arrived at Police Post at about 4:15 P.M. after receipt of the pre‑appointed signal., The learned Trial Court thus held that there was no protest note or endorsement made against this entry by the In‑charge Police Post, who claimed as Diary Writer 4 that he returned to the Police Post on 15.06.1996 at 4:30 P.M. and was informed by Constable Pratap Singh, who was working as a daily diary writer (Roznamcha Munshi), that some persons in plain clothes had apprehended the accused, i.e., the appellant herein, and they were disclosing their identity as Central Bureau of Investigation officials and that the accused was being beaten and man‑handled. As per his testimony Diary Writer 4 remained at the Police Post from 4:30 to 9:30 P.M. and thereafter about 9:30 P.M. the Central Bureau of Investigation officials took the accused with them, i.e., the appellant herein, and later on he learned that he had been arrested in a trap case., The learned Trial Court held to the effect that everything regarding the alleged beating and man‑handling happened in his knowledge and about which he had informed the Station House Officer and the Additional Station House Officer, who reached the spot but neither of them had taken up the matter with their superior authorities, of the accused being falsely implicated in the instant case. The learned Trial Court also observed to the effect that there was nothing on the record that either of them made any representation to their superior authorities including the sanctioning authority, namely, Shri Prabhat Singh, who was working as Deputy Commissioner of Police (North‑West District), when the sanction order Exhibit Petitioner Witness 2/A was passed and thus the learned Trial Court held that the same clearly showed that the accused had allegedly demanded and accepted illegal gratification and that the tainted money was recovered from him and that the sanctioning authority had fully satisfied itself from the material produced before it., The learned Trial Court further held to the effect that in view of the evidence that was on record, the arguments raised on behalf of the accused, i.e., the appellant herein, did not hold ground in the face of the unflinching testimony of Petitioner Witness 3 and Petitioner Witness 4 and the clinching evidence of other prosecution witnesses, who circumstantially corroborated the prosecution version. The learned Trial Court thus held that all the three elements, i.e., demand, acceptance and recovery to constitute the offence of bribe were proved. The learned Trial Court further held to the effect that in as much as demand, acceptance and recovery was established, the bribe money was recovered from the possession of the accused, thus the onus shifted to the accused, i.e., the appellant herein, to rebut the presumption as raised by the application of Section 20 of the Prevention of Corruption Act, 1988., Section 20 of the Prevention of Corruption Act, 1988, as applicable at the time of the incident provides as follows: 20. Presumption where public servant accepts gratification other than legal remuneration. (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub‑section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate., The learned Trial Court also placed reliance on the observations in the case C.K. Damodaran Nair v. Government of India, 1997 Criminal Law Journal 739 wherein it was held to the effect: From a combined reading of Section 161 of the Indian Penal Code and Section 4(1) of the Act it is evident that if, in the instant case, the prosecution has succeeded in proving that the appellant was a public servant at the material time and that he had ‘accepted’ or ‘obtained’ Rs.1,000 as gratification not only the first two ingredients of the former would stand proved but also the third, in view of the presumption under the latter which the Court is bound to draw unless, of course, the appellant, in his turn, has succeeded in rebutting that presumption. According to the Shorter Oxford Dictionary ‘accept’ means to take or receive with a ‘consenting mind’. Obviously such a ‘consent’ can be established not only by leading evidence of prior agreement but also from the circumstances surrounding the transaction itself without proof of such prior agreement. If an acquaintance of a public servant in expectation and with the hope that in future, if need be, he would be able to get some official favour from him voluntarily offers any gratification and if the public servant willingly takes or receives such gratification it would certainly amount to ‘acceptance’ within the meaning of Section 161 of the Indian Penal Code. It cannot be said, therefore, as an abstract proposition of law, that without a prior demand there cannot be ‘acceptance’. The Court also placed reliance on the observations in this verdict referred to herein above to the effect: according to the prosecution the appellant ‘accepted’ that amount, the appellant contended that the same was thrust into his trouser pocket by Petitioner Witness 9. From the judgment of the Trial Court we find that the principal reason which weighed with it for accepting the case of the defence in preference to that of the prosecution was that Petitioner Witness 9 was an interested witness and Petitioner Witnesses 3 and 4, the two independent witnesses, who were examined by the prosecution to prove the transaction did not speak about any demand made by the appellant. Having gone through the evidence of the above two witnesses, namely, Petitioner Witnesses 3 and 4 we are in complete agreement with the High Court that the finding recorded by the Trial Court in this regard is patently perverse. Both these witnesses, who at the material time were holding responsible positions in State Bank of India and Canara Bank respectively, categorically stated that they saw Petitioner Witness 9 taking out the notes from his shirt’s pocket and handing over the same to Damodaran (the appellant), and the appellant, after counting those notes, putting them in the right front pocket of his trousers. The unimpeachable evidence of these two independent witnesses conclusively proves that the transaction was consensual. That necessarily means that the appellant ‘accepted’ the money and the defence story that Petitioner Witness 9 thrust the money is patently untrue. Consequent upon such proof, the presumption under Section 4(1) of the Act would operate and since the appellant did not rebut that presumption the conviction of the appellant under Section 161 of the Indian Penal Code has to be upheld., The learned Special Judge vide the impugned judgment also placed reliance on the observations of the Honorable Supreme Court in M. Narsinge Rao v. State of Andhra Pradesh, 2000 vol. XAD Supreme Court, in relation to the question whether a legal presumption can be based on factual presumption, whereupon it was held to the effect: The latter is discretionary whereas the former is compulsory. Such a question arose in this appeal and in view of the importance of the issue a two‑judge Bench referred this case to be heard by a larger bench. The legal presumption envisaged in Section 20 of the Prevention of Corruption Act, 1988 (for short the Act) is that on proof of certain fact the Court shall presume certain other fact. Where there is no direct evidence for establishing the primary fact the Court has to depend upon the process of inference drawn from other facts to reach the said primary fact. The crux of the question involved, therefore, is whether an inference thus made could be used as a premise for the compulsory presumption envisaged in Section 20 of the Act. Their lordships further observed: When the sub‑section deals with legal presumption it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act., It was further held vide the impugned judgment that though the accused pleaded innocence in his statement under Section 313 of the Criminal Procedure Code, 1973, which he had vainly attempted to establish by producing defence evidence, by examining Diary Writer 3, yet the learned Trial Court held that the accused, i.e., the appellant herein, had failed to rebut the onus as laid upon him by virtue of the presumptions under Section 20 of the Prevention of Corruption Act, 1988 and further held that the defence evidence had been found unreliable in the circumstances of the case as had been detailed and discussed in the impugned judgment and thus it was held that the prosecution had been able to establish its case against the accused, i.e., the appellant herein, for the offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the said enactment., The learned Trial Court also held that the other offences with which the accused had been charged had also been established through the testimonies of the witnesses examined., It has been submitted through the written submissions and also the arguments addressed on behalf of the appellant that the prosecution version had not even been remotely established against the appellant and that the Trial Court judgment was wholly infirm., Inter alia, it was submitted on behalf of the accused, i.e., the appellant herein, that in his cross‑examination, the complainant had stated that he was not summoned by the appellant, i.e., the accused, and rather alleges that he received a call on his mobile from the appellant; however no such call records had been placed on record by the prosecution to establish that any such call was made and also no witness from the mobile company was examined during trial., On behalf of the accused, i.e., the appellant herein, it has further been submitted that the complainant in his examination‑in‑chief stated that the appellant herein had called him and Surinder Jindal to the Police Station and there allegedly the initial demand for bribe was made but that the main accused in the case was Surinder Jindal and not the complainant and that it was very surprising that in spite of the main accused being present before him, the appellant did not make the demand for money from him and rather chose to target the co‑accused. On behalf of the appellant it has further been submitted that the complainant has stated in his cross‑examination that Surinder Jindal had been sent outside the room when the demand for money was made and that Surinder Jindal had not been examined in this case as a witness., It was further submitted on behalf of the appellant that whereas the complainant Petitioner Witness 3 has stated in his examination‑in‑chief that the appellant had been informed of the marriage of Alka and Surinder Jindal, the complainant in the abduction case (Petitioner Witness 7) had also stated in his cross‑examination that he had told the appellant not to file the complaint till his son‑in‑law or his family members hand over the photographs and proof of marriage and that the complainant had also stated in his cross‑examination that he was aware that in fact no case had been registered by the appellant on the complaint of the father of the abducted girl., It has been submitted on behalf of the appellant that the complainant had stated in his examination‑in‑chief that when the complainant met the appellant in his room, the appellant said ‘Main tumhein is case se nikalrahahun, kuchh to karkejao and kahanjaarahe ho jolaaye ho wo de do’. It has further been submitted on behalf of the appellant that in his cross‑examination the complainant stated that he does not remember the exact exchange of words that took place between him and the appellant and that Petitioner Witness 4, Naresh Kumar, the shadow witness, who was present when this conversation took place, states in his examination‑in‑chief that the appellant had said to the complainant ‘paiselaaye ho’ and thus, it is submitted on behalf of the appellant that the aspect whether there was any conversation that actually took place between the complainant and the appellant when the demand was allegedly made is wholly doubtful in as much as the complainant is unsure of the actual exchange of words and the shadow witness also testified to a different exchange of words between the appellant and the complainant and that it is highly improbable that the appellant had demanded Rs.5,000 as a bribe from the complainant during the conversation., It has thus been submitted on behalf of the appellant that in such circumstances, the question of the appellant demanding a bribe does not arise as he had already been informed that Alka and Surinder Jindal had married and that it was inconceivable why the appellant would demand the bribe from a person who was not even the main accused in the case and that further when the complainant was not sure as to the words used by the appellant to demand a bribe, the same was enough to cast a doubt on the fact whether any demand of Rs.5,000 was actually made by the appellant., It has, inter alia, been submitted on behalf of the appellant that there was no proof that the complainant had been called by the appellant to the Police Station or that he had decided to go there of his own accord and it was thus submitted on behalf of the appellant that Surinder Jindal was not present in the room when the alleged initial demand was made and the fact that Surinder Jindal was never examined as a witness leads to an irresistible conclusion that there was no demand of illegal gratification made by the appellant and thus, it has been contended on behalf of the appellant that there is nothing on the record to establish the demand of the bribe having been made by the appellant., Reliance in relation to the said submissions was placed on behalf of the appellant on the verdict in Subhash Parbat Sonvane v. State of Gujarat, Judgment 2002(4) Supreme Court 348, on observations in paragraphs 5 to 8 thereof which read to the effect: 5. The learned senior counsel Mr. Anand appearing on behalf of appellant submitted that the judgment and order passed by the High Court confirming the conviction of the appellant under Section 13(1)(d)(i) of the Act is on the face of it illegal and erroneous. He submitted that for convicting the appellant for the offence under Section 13(1)(d), the prosecution must establish that by corrupt and illegal means the accused has obtained for himself or for any other person any valuable thing or pecuniary advantage. He submitted that in the present case, there is no evidence on record that the appellant ‘obtained’ any amount by corrupt or illegal means. 6. In our view, mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d)(i). Section 13(1)(d) is as follows: “13. Criminal misconduct by a public servant – (1) A public servant is said to commit the offence of criminal misconduct, (b) if he, (i) by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage or (ii) by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage or (iii) While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.” 7. In Section 7 and 13(1)(a) and (b) of the Act the Legislature has specifically used the words ‘accepts’ or ‘obtains’. As against this there is departure in the language used in Clause (1)(d) of Section 13 and it has omitted the word ‘accepts’ and has emphasized the word ‘obtains’. Further, the ingredient of Sub‑clause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under Clause (ii), he obtains such thing by abusing his position as public servant and Sub‑clause (iii) contemplates that while holding office as the public servant he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under Section 13(1)(d), there must be evidence on record that the accused ‘obtained’ for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing of pecuniary advantage without any public interest., It was also placed on behalf of the appellant on the verdict in Ramprakash Arora v. State of Punjab, All India Reporter 1973 Supreme Court, observations in paragraph 10 thereof to the effect: 10. Apart from what has been stated above we cannot overlook the fact as to why the appellant demanded illegal gratification on February 15, 1968, after he had already submitted a report on February 12, by verifying at the spot that the connection be given and that the sanction had actually been accorded by the Sub‑Divisional Officer on February to contend to the effect that when the work for which the alleged bribe is demanded has already been done, there is no question of a demand for illegal gratification., It was submitted on behalf of the appellant that there was no clarity as to the acceptance of the alleged bribe money by the appellant in as much as according to the complainant in his examination‑in‑chief, the complainant had stated that he had placed the money on the table whereas the shadow witness has stated in his examination‑in‑chief that the money was first handed over to the appellant and that the complainant had not kept the money on the table at all and that Petitioner Witness 4 denied that the complainant had not given the notes in the hands of the appellant. It was thus strenuously urged on behalf of the appellant that there was no clarity as to whether the money was handed over to the appellant or was kept on the table of the appellant and the shadow witness in his examination‑in‑chief had rather stated that the money was kept on the other side of the table. It was thus submitted on behalf of the appellant that there was no clarity regarding the acceptance of the money whether the same was put on the table or was directly handed over to the appellant and that there is also an ambiguity regarding the position of the money post its alleged hand over to the appellant and that whilst the complainant says that it was put in a cavity in the table, the shadow witness differed in his version and stated that it was put on the other side of the table and that all these inconsistencies left room for doubt as far as acceptance of money by the appellant is concerned., It was submitted on behalf of the appellant that apart from demand, acceptance of illegal gratification is also necessary for a conviction and reliance was placed on the verdict of the Honorable Supreme Court in Banarsi Dass v. State of Haryana, 2010 4 SCC 450, to contend to the effect that: 23. To constitute an offence under Section 161 of the Indian Penal Code it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5(1)(d) of the Act, the demand and acceptance of the money for doing a favour in discharge of his official duties is sine qua non to the conviction of the accused. 24. In M.K. Harshan v. State of Kerala, (1996) 11 SCC 720 : 1997 SCC (Criminal) 283 this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as follows: (SCC pp. 723‑24, para 8) 8. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of Petitioner Witness 1. Since Petitioner Witness 1’s evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of Petitioner Witness 1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable., It was submitted on behalf of the appellant that the complainant in his examination‑in‑chief had stated that the person of the appellant was searched but the notes were not found and he further stated that efforts were again made to search for the notes on the arrival of Petitioner Witness 11, S.K. Peshin, the Investigating Officer, whereafter the notes were recovered and that the complainant had also stated that the notes were recovered by the shadow witness Petitioner Witness 4, Naresh Kumar, that he further went on to state that search was made of the table but the money was recovered by the shadow witness and not by the Investigating Officer., It was further submitted on behalf of the appellant that Petitioner Witness 4, the shadow witness, in his examination‑in‑chief had stated that a search was conducted but the money could not be recovered and had further stated that the money was recovered from the cavity in between the top and the drawer of the table and that the shadow witness in his cross‑examination had stated that the money was not recovered from the table of the appellant and had rather stated that the table was overturned and the tainted notes were recovered. Inter alia, it was submitted on behalf of the appellant that the shadow witness nowhere in his testimony had stated that it was he who had recovered the money, whereas as per the complainant it was the shadow witness who had recovered the money from the appellant.
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On behalf of the appellant it was submitted that Witness 6 Raj Kamal, in his examination‑in‑chief, stated that he was directed to search and recover the money but was unable to recover any money on the first attempt. He later said he was again directed to search and recovered the money from the cavity of the table. The complainant claimed that Witness 4 Naresh Kumar had recovered the money, whereas Witness 6 asserted that he himself had recovered it. In his cross‑examination Witness 6 clarified that the money was not recovered from the top of the table or any drawer, yet the handwash of the appellant had been taken., It was further submitted that Sub‑Inspector Surender Kumar, Witness 9 and a member of the raiding party, in his examination‑in‑chief, stated that the money was searched for but could not be traced, and only on a subsequent attempt was it recovered. In his cross‑examination he reiterated that the money was not found on the person of the appellant. The complainant, in his examination‑in‑chief, categorically stated that the money was not found on the appellant but was recovered on the arrival of Witness 11 SK Peshin, without disclosing where the money was recovered. In his cross‑examination the complainant alleged that the notes were recovered by the shadow witness, Witness 4, from the person of the appellant., Witness 4 Naresh Kumar was found to give a contrary stand regarding the recovery of money. In his examination‑in‑chief he said the money could not be recovered in the initial search but was later recovered from the cavity of the table. In his cross‑examination he denied that the money was recovered from the appellant’s table and stated that the table had to be overturned to recover the money. The appellant argued that it is illogical for the table to be overturned if the money was kept in the cavity, and that Witness 4 never stated in either examination‑in‑chief or cross‑examination that he himself recovered the money, contrary to the statement of Witness 3., The appellant also contended that the complainant, in his cross‑examination, stated that the appellant grappled with members of the raiding team and that the shadow witness, Witness 4, in his examination‑in‑chief, said the solution containing the appellant’s handwash fell on the ground during a scuffle between Central Bureau of Investigation officials and the appellant. Witness 9 Surender Kumar, in his examination‑in‑chief, described how the bottle of solution containing the appellant’s handwash fell, the solution spread on the floor, was later picked up and placed into another bottle, and the handwash was again taken. The appellant submitted that it is inconceivable how the solution could be picked up and repackaged after spreading on the floor., The appellant relied on the judgment of the Supreme Court of India in Suraj Mal v. State (1979) 4 SCC 725, particularly paragraph 2, which held that mere recovery of money outside the circumstances in which it was paid cannot be sufficient for a conviction. The paragraph notes that the defence was that the appellant was falsely implicated, nothing was recovered from him, and the Special Judge, despite finding the evidence extremely shaky, convicted the appellant. The High Court, in upholding the conviction, overlooked that the same evidence had been rejected with respect to the co‑accused Ram Narain. The Supreme Court observed that when witnesses make inconsistent statements, their testimony becomes unreliable and, in the absence of special circumstances, no conviction can be based on such evidence., The appellant further argued that although the complainant’s statement on page 71 of the paper‑book indicated that all three accused, including the appellant, had met him and demanded a bribe of Rs 2000, the appellant’s demand was only Rs 100. The report lodged before Mr Katoch contains no mention of the appellant demanding any bribe, nor does it note his presence when the demand was made by Davender Singh. The appellant’s statement under Section 342 of the Criminal Procedure Code denies the recovery of money and asserts false implication. The High Court’s finding that the appellant admitted either payment or recovery is therefore incorrect., The appellant submitted that the impugned judgment is infirm due to injuries sustained by the appellant. The prosecution failed to rebut the testimony of Documentary Witness 4 Sh. Jaipal Singh, In‑charge, Police Station Shanti Nagar, who stated that the appellant was beaten and manhandled. Sub‑Inspector Surendra, in his cross‑examination, said the appellant was not medically examined. Documentary Witness 3 Kulbhushan Mehta, counsel for the appellant before the trial court, noted that despite the trial court’s order for a medical examination, no medical report was placed on record. The appellant relied on the Supreme Court of India judgment in Lakshmi Singh and Ors. v. State of Bihar (1976) 4 SCC 394, paragraph 12, which emphasizes that failure to explain injuries casts doubt on the prosecution’s case., The appellant highlighted that the sanctioning authority had not properly sanctioned the prosecution. Documentary Witness 2 HC Jagat Singh, called from the concerned DCP’s office, stated in his examination‑in‑chief that he could not produce the sanction file because it was not traceable. In the absence of the file showing what material was placed before the sanctioning authority, the prosecution suffered legal infirmities. Witness 2 Sh. Prabhat Singh, the sanctioning authority, admitted in cross‑examination that he had accorded the sanction without mentioning the description of the documents before him, raising doubt as to whether any material was actually considered. The appellant relied on the Supreme Court of India judgment in Mohd Iqbal Ahmad v. State of A.P. (1979) 4 SCC 172., The appellant presented a table of inconsistencies between the testimonies of prosecution witnesses. For example, Witness 3 initially stated that money was not found on the appellant, later claimed it was recovered by SK Peshin, and subsequently asserted that it was recovered by Witness 4 Naresh Kumar. He also could not confirm whether the recovery was made by Raj Kamal (Witness 6). The complainant’s statements differed regarding the conversation with the appellant, with variations such as “jo laaye ho de jao, kuchh to karke jao” and “kaafi late aaye ho, paise laaye ho.” These contradictions, the appellant argued, undermine the credibility of the prosecution’s case., The appellant further relied on the Supreme Court of India judgment in Dinesh Kumar Kalidas Patel v. State of Gujarat (2018) 3 SCC 313, paragraph 14, which states that for an offence under Section 201 IPC, mere suspicion is insufficient; the prosecution must prove that the accused knew or had reason to believe that the offence was committed and caused the disappearance of evidence with the intention of shielding the offender., The Central Bureau of Investigation, through a written synopsis dated 22 July 2020 signed by Inspector Dharmendra Kumar Singh, submitted that the appellant was a public servant and that the complaint against Witness 3 had been assigned to the appellant. The CBI relied on the ingredients of the offence under Section 7 of the Prevention of Corruption Act and on Sections 13 and 20 of the same enactment. It also placed reliance on the Supreme Court of India judgment in Noha v. State of Kerala (SC MANU/SC/8635/2006), which held that when voluntary and conscious acceptance of money is proved, the prosecution need not produce direct evidence of demand or motive. Additionally, the CBI cited the Supreme Court of India judgment in Raj Rajendra Singh Seth @ R.R.S. Seth v. State of Jharkhand & Anr (2008) AIR SC 3217, which explained that the term “obtains” includes acceptance of money offered, solicitation, or extortion, all constituting a pecuniary advantage obtained by abusing public office.
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Reliance was also placed on behalf of the Central Bureau of Investigation on the verdict of the Honourable Supreme Court of India in M. W. Mohiuddin vs. State of Maharashtra (21 March 1995, Supreme Court) MANU/SC/0690/1995, wherein it was held to the effect: “Therefore whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances in each case.” It was submitted on behalf of the Central Bureau of Investigation that the prosecution had been able to establish that the accused had accepted the tainted money for which he had made the demand and that the acceptance in the instant case had been established through the testimony of Witness 3, the complainant, and through the testimony of Witness 4, the shadow witness., It was further submitted on behalf of the Central Bureau of Investigation that in the instant case the acceptance had been duly proved by the complainant Witness 3 and the shadow witness Witness 4, apart from the recovery of the tainted money. The Central Bureau of Investigation submitted that the present case was on a better footing and far beyond the mere proving of acceptance, as Witness 3, the complainant, and Witness 4, the shadow witness, had categorically proved the demand and acceptance of money. It was also submitted that, apart from that, the recovery of the tainted money had been proved by the testimonies of Witness 3, Witness 4, Witness 6 and Witness 9. The Central Bureau of Investigation further submitted that Witness 3 had specifically deposed that the money was recovered by the witness and not by Peshin., Witness 6, who is an independent witness, has specifically submitted that he recovered the money from the cavity between the top and the drawer of the table. The Central Bureau of Investigation further submitted that consistent statements of material witnesses, coupled with the recovery of tainted money and the availability of phenolphthalein powder in the hand washes of the accused, i.e., the appellant, clearly establish that money was accepted by the accused and later discovered from the cavity of the table., The Central Bureau of Investigation further submitted that the learned Special Judge had thoroughly analyzed the depositions of the prosecution witnesses, had taken note of omissions, and had applied the settled law. In paragraph 49 of the impugned judgment, the judge rightly held, “though there are inconsistencies in the statements of Witness 3 and Witness 4, the shadow witness, regarding demand and acceptance of the tainted money by the accused, the material fact is that the complainant handed over the tainted money to the accused, who picked up the same from the table and kept it in the cavity from which it was later recovered by a member of the raiding party, as detailed by all the witnesses, clearly establishing that the tainted money was passed on to the accused by the complainant.”, It has been submitted on behalf of the Central Bureau of Investigation that the demand for illegal gratification, its acceptance, and the recovery of the tainted money had been categorically proved by the witnesses, and that the deposition of the witnesses had been duly corroborated by the scientific evidence of the presence of phenolphthalein powder in the hand washes of the appellant, i.e., the accused. It is natural that there would be some differences in the testimonies of the prosecution witnesses. The Central Bureau of Investigation further submitted that, in the instant case, the statements of all the witnesses as a whole led to only one conclusion: the guilt of the accused. It was also submitted that there was a gap of three to four years between the occurrence and the recording of the statements of witnesses, and therefore minor differences were bound to occur due to the lapse of time; nevertheless, the testimonies of the witnesses were consistent and sufficient to prove the guilt of the accused. The Central Bureau of Investigation submitted that the statements of the prosecution witnesses, the photographs, the broken tumbler, and the medical examination of the accused all demonstrated that the accused, i.e., the appellant, not only tried to destroy the evidence but also resisted the same and injured the trap witnesses. Accordingly, apart from the conviction of the appellant under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, the conviction of the appellant under Section 201 read with Sections 511, 332 and 224 of the Indian Penal Code, 1860, had been rightly imposed by the impugned judgment., On consideration of the submissions made on behalf of either side through oral arguments, the written synopsis, and a perusal of the entire available record, i.e., the impugned judgment and the trial court record, the Supreme Court of India is of the considered view that there is no infirmity whatsoever in the impugned judgment dated 25 April 2001 of the learned Special Judge, Tihar Jail, New Delhi in Reference Case No. 47(A)/96 – Delhi whereby the appellant has been held guilty of the commission of the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and the offence punishable under Section 13(2) read with Section 13(1)(d), as well as the offences punishable under Section 201 read with Sections 511, 332 and 224 of the Indian Penal Code, 1860. This is so, in as much as, although there are some variations in the testimonies of the prosecution witnesses as set forth in the table presented on behalf of the appellant in the written synopsis, which has been referred to above in relation to the recovery of the tainted money and the conversation that took place between the appellant and the complainant Shri Sunil Kumar Aggarwal concerning the transaction of the bribe to be paid as illegal gratification for closure of the complaint of Shri Bal Krishan Aggarwal against Shri Sunil Kumar Aggarwal, the fact that Shri Sunil Kumar Aggarwal was called to the office of the accused at Police Post Shanti Nagar on 15 June 1996, and that his statement was recorded as Exhibit PW3/D, is a matter of record., That the complainant of the present Reference Case No. 47(A)/96 – Delhi was called to Police Post Shanti Nagar by the accused on 15 June 1996 despite Shri Surender Jindal and Alka Aggarwal, the missing daughter of the complainant Shri Bal Krishan Aggarwal, having lodged a complaint on 4 June 1996 with the in‑charge of Police Post Shanti Nagar stating that his daughter Alka Aggarwal was missing since 28 May 1996, and having informed the accused that Surender Jindal and Alka Aggarwal had married prior to 15 June 1996 and that he was no longer interested in pursuing the complaint against persons he suspected of kidnapping his daughter, namely Jagdish Jindal, Pawan Jindal, Surender Jindal and three to four other persons including Shri Sunil Kumar Aggarwal, is established on the record., This is so as Witness 3, Shri Balkishan Aggarwal, stated in his cross‑examination after the marriage of Smt. Alka that he was not interested in pursuing the matter, but he did not remember whether he had given anything in writing to the accused. The fact that Witness 3, Shri Sunil Kumar Aggarwal, and Shri Surender Jindal had gone to Police Post Shanti Nagar on 15 June 1996 is not denied by the accused. In his statement under Section 313 of the Criminal Procedure Code, 1973, in response to Question 3—“It is in evidence against you that Witness 3, Shri Sunil Kumar Aggarwal, was called by you to the police station after the marriage of Surender Jindal with Miss Alka and Surender Jindal had also accompanied Witness 3 to the police station. What have you to say?”—the accused replied, “It may be a matter of record but I do not remember.” In response to Question 4—“It is further in evidence against you that Witness 3 and Surender Jindal disclosed to you that Surender and Alka had married and you told them that there was a complaint by the father of the girl (Alka) against Witness 3, Surender Jindal and others and that you would arrest them. What have you to say?”—the accused answered, “It is not admitted as stated. Surinder and Alka had not submitted the documents of their marriage with me and the father of the girl is insisting on taking action.” This makes it apparent that on 15 June 1996 the accused was aware that Surender Jindal and Alka Aggarwal had married. The fact that the raiding party of the Central Bureau of Investigation went to Police Post Shanti Nagar on 15 June 1996, where the accused was present and conducted the raid, is also established on the record through the testimonies of the prosecution witnesses examined by the Central Bureau of Investigation and is not refuted by the accused’s statement under Section 313 of the Criminal Procedure Code., It has been observed by the Honourable Supreme Court in Brajendra Singh v. State of Madhya Pradesh, Criminal Appeal Nos. 113‑114 of 2010, decided on 28 February 2012, paragraph 10, to the effect: “It is a settled principle of law that the statement of an accused under Section 313 of the Criminal Procedure Code, 1973 can be used as evidence against the accused, insofar as it supports the case of the prosecution. Equally true is that the statement under Section 313 of the Criminal Procedure Code normally cannot be made the basis for conviction of the accused. But where the statement of the accused under Section 313 of the Criminal Procedure Code is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced.” The Court further referred to the recent judgment in Ramnaresh & Ors. v. State of Chhattisgarh, wherein it held: “In terms of Section 313 of the Criminal Procedure Code, the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313 of the Criminal Procedure Code is being recorded; the Court may draw an inference, including adverse inference, as permissible by law. The right to a fair trial, the presumption of innocence unless proven guilty, and the requirement that the prosecution prove its case beyond reasonable doubt are fundamental principles of criminal jurisprudence.”, In the instant case, the statement of the accused under Section 313 of the Criminal Procedure Code, 1973 supports the prosecution version that the accused was aware on 15 June 1996 that Surinder Jindal and Alka had married, and that the Central Bureau of Investigation raid at Police Post Shanti Nagar was conducted on that date when the appellant was posted there. The burden of the prosecution in relation to these aspects is thus reduced. The testimonies of the prosecution witnesses examined by the Central Bureau of Investigation, namely Witness 3, the complainant, and Witness 4, the shadow witness, bring forth the garbled demand made by the accused for illegal gratification for closure of the complaint made by Shri Bal Krishan Aggarwal against Shri Sunil Kumar Aggarwal, as indicated through the conversation between the complainant and the accused:, Accused: Aa gaye. Complainant: Han Sir aa gaye. Accused: Baithye. The complainant further deposed that the accused was taking his meal at that time and the conversation continued as follows: Complainant: Hamara case nibtadijiye. (Please close our case.) He went on stating that the accused recorded his statement and the following conversation took place again between him and the accused. Complainant: Chalteyhain. Accused: Kahan jaarahe ho. Jo laye ho wo de jao. Complainant: There was no role of mine in the episode. Accused: Mein tumhe is case se nikalrahahun, kuch to karkejao., That the currency notes of denomination Rs 50 each, amounting to a total of Rs 5,000 (i.e., 100 notes), as noted in Exhibit PW3/B, were given to the accused by the complainant Shri Sunil Kumar Aggarwal, is corroborated by the testimony of Witness 3, the complainant, and the shadow witness Witness 4., The findings of the learned trial court in paragraph 49 of the impugned judgment thus cannot be faulted in view of the prosecution evidence placed on record., The defence evidence led by the accused, i.e., the appellant, before the trial court was unable to create any dent in the prosecution version which establishes the fact of the garbled demand of illegal gratification made by the appellant for removal of the name of the complainant Shri Sunil Kumar Aggarwal in relation to allegations against him in the complaint dated 4 June 1996 of Shri Bal Krishan Aggarwal against Jagdish Jindal and others inclusive of Surender Jindal and the complainant herein, i.e., Shri Sunil Kumar Aggarwal, for having kidnapped his daughter Alka Aggarwal; that tainted government currency notes were handed over to the appellant is also established through the testimonies of Witness 3 and Witness 4 and that the hand wash of the appellant turned pink even after the first hand wash, having been deliberately thrown and spilt on the ground by the appellant, establishes the receipt of the tainted money by the appellant pursuant to his demand for illegal gratification in the course of his public duty. The tainted money could be recovered only after the Investigation Officer, SI SK Peshin, overturned the appellant’s table, which does not detract from the veracity of the testimonies of the prosecution witnesses that the tainted money smeared with phenolphthalein powder on 100 government currency notes of Rs 50 each had been given to the appellant by the complainant, placed in his table’s drawer, fell into the cavity of the drawer and could be recovered only when the table was overturned by SK Peshin, also stands established through the consistent testimonies of the prosecution witnesses examined. That the sodium carbonate solution turned pink when the left‑hand and right‑hand washes of the appellant were taken is also established through the record. That the appellant attempted to destroy the incriminating evidence in the form of the hand wash which had turned pink on being put into the sodium carbonate solution further establishes that during the commission of the offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, the appellant gave a blow to SI Vipin Kumar when he tried to apprehend him after the shadow witness gave the pre‑appointed signal, thereafter the appellant tried to run towards the sole exit of the Police Post where the Trap Link Officer, Inspector S.K. Bhati, tried to apprehend him; the appellant dodged and proceeded towards the left side where he was intercepted by SI Sriprasad and SI Surender Kumar, who were hit by fist blows from the appellant and were finally overpowered by Inspector Bhati and Constable Wason Singh, sustaining injuries declared simple as per MLC Nos. 8203/96 and 8200/96 prepared by the Medical Officer at Hindu Rao Hospital, Delhi, thereby bringing forth the commission of the offences punishable under Section 201 read with Section 511 read with Section 353 of the Indian Penal Code, 1860, and, as the appellant also created an obstruction in his lawful apprehension by CBI personnel on 15 June 1996, the culpability under Section 224 of the Indian Penal Code, 1860, as rightly held by the learned Special Judge, Tihar Jail, New Delhi., Reliance placed on behalf of the appellant on the verdicts relied upon is thus misplaced in the facts and circumstances of the instant case. As regards the injuries sustained allegedly by the appellant, it cannot be said that the injuries, if any, caused to the appellant who entered into a scuffle with the trap party personnel while attempting to escape, can be held to be unexplained. Furthermore, in terms of the verdict of the Honourable Supreme Court in State of Gujarat v. Bai Fatima & Anr. [(1975) 2 SCC 7], the instant case is of a kind where the non‑explanation of any of the injuries on the accused does not affect the prosecution case., There is thus no infirmity in the impugned judgment convicting the appellant for the commission of the offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and for the commission of the offences punishable under Sections 186, 201 read with Sections 511, 224, 332 and 353 of the Indian Penal Code, 1860, as has been rightly held by the learned Special Judge., As regards the quantum of the sentence imposed, the appellant having been sentenced by the impugned order dated 26 April 2001, as detailed elsewhere above, it is held that the sentence imposed on the accused is commensurate with the nature of the offence committed by the appellant as per the sentence imposable on the date of the commission of the offence, and thus the impugned order dated 26 April 2001 against the accused in Reference Case No. 47(A)/96 – Delhi is upheld., The appeal is thus dismissed and the bail granted to the appellant by order dated 3 May 2001, suspending the sentence, is withdrawn. The accused, who, according to the nominal roll received from the Superintendent of Prison, Central Jail No. 4, Tihar, Delhi, underwent 16 days of detention as an under‑trial from 16 June 1996 to 1 July 1996, and as per the nominal roll dated 13 September 2021, is directed to be taken into custody forthwith. The period of detention undergone by the appellant is directed to be set off under Section 428 of the Criminal Procedure Code, 1973., A copy of this order shall be sent to the Superintendent of the Central Bureau of Investigation, Anti‑Corruption Branch, New Delhi, and be supplied free of cost to the appellant, and also be sent to the Superintendent, Jail, Tihar, Delhi.
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Shailaja Saurabh Raju @ Rajendra Dhage, Applicant; The State of Maharashtra, Respondent. Mr. Aniket Nikam on behalf of Mr. Aashish Satpute, Mr. Piyush R. Toshnival and Mr. Vivek Arote, for Applicant. Mr. Amit A. Palkar, Additional Public Prosecutor, for Respondent-State. Date: 4th August 2022., By this application under section 439 of the Code of Criminal Procedure, the applicant seeks his release on bail. He has been charge‑sheeted by Niphad Police Station in Crime Report No. I‑158/2019 for offences punishable under sections 302, 201 read with 34 of the Indian Penal Code., The complainant, who was then serving as a Police Sub‑Inspector with the Economic Offence Wing, Unit No.1 of Nashik, while investigating Crime Report No. 328 of 2019 registered with Aadgaon Police Station for offences punishable under sections 454 and 380 of the Indian Penal Code, seized a mobile of a juvenile in conflict with law., While checking the mobile, the complainant incidentally noticed a video clip in the gallery wherein the applicant was found pouring petrol or some corrosive substance, causing something to burn. The complainant further noticed certain photographs and a selfie sent by the accused persons to one Nilesh on WhatsApp, which depicted the applicant along with the rest of the accused with an unknown burning object., Investigation further revealed that one Sanjay Shewale (deceased), who was a vagabond, had been abusing and troubling the mother of the applicant for the last one or two years. He used to insult the applicant's mother, who treated Sanjay Shewale like her brother. The applicant, therefore, was enraged with Sanjay Shewale. It is alleged that the applicant, along with the rest of the accused, assaulted Sanjay Shewale with a sickle, killed him, and thereafter burnt his dead body by pouring petrol on 18th May 2019 at around 11.00 p.m. The incident was also video‑recorded by the applicant and the other accused., After investigation, a charge‑sheet was filed against the applicant. The applicant failed in his first attempt to secure bail from the Additional Sessions Court, Niphad, which rejected the bail application vide order dated 3rd November 2020., I heard Mr. Nikam, learned counsel for the applicant, and the learned Additional Public Prosecutor at considerable length., The incident in question occurred on 18th May 2019. However, the First Information Report was lodged on 12th June 2019 and the applicant was arrested on 18th June 2019. The entire case of the prosecution is based on circumstantial evidence., Mr. Nikam would argue that there is absolutely no evidence against the applicant, save for some indecipherable conversation of the applicant with other accused. He further submits that although a sickle was recovered at the behest of the applicant, it was without blood stains and has no nexus with the alleged crime. According to Mr. Nikam, the deceased Sanjay Shewale was a vagabond, alcoholic and quarrelsome who frequently quarrelled with the applicant's mother. He submits that there was no motive for the applicant to eliminate the deceased. The most important aspect, according to Mr. Nikam, is that the body of the deceased was not found by the investigating officer and therefore there is no post‑mortem report on record. These arguments cannot be said to be out of context or without substance., On the other hand, the learned Additional Public Prosecutor objects to the release of the applicant on bail on the ground that there are several criminal cases against the applicant, who, if released, will definitely influence the prosecution witnesses. There is also a likelihood of his abscondence in case of his release., It is interesting to note that what had been recovered by the investigating officer are burnt pieces of bone which were ultimately sent to the Forensic Science Laboratory for DNA analysis. A report of the regional forensic laboratory dated 12th July 2019, page No.152 of the paper book, indicates the final opinion of the Assistant Chemical Analyzer: \\\3b) Partly burnt bone piece (half round); 3c) Bone (vertebrae‑like). DNA profiles obtained from blood detected on ex.1 scrapping and DNA profiles obtained from ex.3a partly bone piece, 3b partly bone piece (half round) and DNA profiles obtained from blood detected on ex.1, ex.2 and ex.3 scrappings from case no. DNAnk‑486/19 are identical and from one and the same source of male origin.\\\, Mr. Nikam would argue that although the DNA profile obtained from the bone pieces matches that of the parents of the deceased, this alone is not sufficient to establish any nexus, even prima facie, with the applicant's complicity in the crime. In short, Mr. Nikam further argues that the case, at most, can be termed a \\\Corpus Delicti\\\. Even taking the case to the hilt, there is nothing, even prima facie, to indicate that the applicant eliminated the deceased along with the other accused while sharing a common intention, nor that he caused the disappearance of evidence by burning the corpse after committing the murder with a sickle., Though several offences have been registered against the applicant prior to the offence in question, primarily for committing theft, Mr. Nikam contends that this alone cannot be a ground to incarcerate the applicant in the present case., My attention is invited by counsel to the observations made by the Additional Sessions Judge in the impugned order relating to the video clip recorded by the applicant and the other accused. It has been specifically noted that the video clip is very vague and the deceased does not appear anywhere, much less in a burning condition, although something was found to be burnt, which cannot be said to be sufficient evidence against the applicant. It is also pertinent to note that the rest of the persons appearing in the video clip were neither arraigned as accused nor were their statements recorded. Considering the submissions of Mr. Nikam, for the purpose of enlarging the applicant on bail, I do not see any reason to refuse the prayer of the applicant., Reliance is placed by the learned counsel upon a judgment in the case of Sudhir Chaudhary and others v. State (NCT of Delhi), (2016) 8 Supreme Court Cases 307. It was a case under sections 384, 511, 420 and 120‑B of the Indian Penal Code alleging that the appellants demanded a sum of money to refrain from telecasting programmes on a television channel pertaining to alleged involvement of a corporate entity in a wrongful activity relating to allocation of coal blocks, voice samples which led to the arrest of the appellants., In that case, the appellants consented to tendering their voice samples at the Central Forensic Science Laboratory, CBI, for the purpose of comparing the same with a recording made in the course of a sting operation. The grievance of the appellants was that they were being made to read out inculpatory material drawn from an audio recording of the alleged sting operation. The appellants objected to this, moving an application for monitoring of the investigation and for direction to the investigating officer to provide material for a voice sample that \\\does not contain any inculpatory statement\\\ in the presence of a Judicial Magistrate., Paragraphs 9 and 12 of the aforesaid judgment are extracted below; \\\9. The Appellants expressly consented to a voice sample being drawn, in their response to the application that was filed by the investigating officer before the Court of Metropolitan Magistrate. This was reiterated before the High Court. In the submissions which have been urged in these proceedings, learned counsel has specifically stated that the Appellants would abide by the consent which they had furnished to their voice samples being drawn. That being the position, the only surviving issue for this Court is to ensure that the underlying process for drawing the voice samples is fair and reasonable, having due regard to the mandate of Article 21. On the one hand, it is not open to the accused to dictate the course of investigation. Hence, we do not find substance in the submission that the text which is to be read by the appellants in the course of drawing their voice samples should contain no part of the inculpatory words which are a part of the disputed conversation. A commonality of words is necessary to facilitate a spectrographic examination.\\\ \\\12. We are of the view that the aforesaid directions which have been issued by this Court would allay the apprehension of the Appellants in regard to the fairness of the process involved in drawing the voice sample. Our directions ensure that the text which the Appellants would be called upon to read out for the purpose of drawing their voice samples will not have sentences from the inculpatory text. Similarly, permitting the text to contain words drawn from the disputed conversation would meet the legitimate concern of the investigating authorities for making a fair comparison.\\\, The ratio laid down in the decision of Sudhir Chaudhary and others (supra) is clearly applicable to the present set of facts, in the sense that the applicant herein, according to Mr. Nikam, had been asked to read a text which is essentially inculpatory in nature for the purpose of drawing his voice sample., In light of the observations made above and in view of the fact that the trial will not be concluded in the near future, considering the age of the applicant and the aspects enumerated hereinabove, no fruitful purpose would be served by incarcerating the applicant behind bars. Now, to the order: (a) The applicant be enlarged on bail upon furnishing a Personal Recognizance bond in the sum of Rs.15,000/- with one surety in the like amount to the satisfaction of the Additional Sessions Court, Nashik; (b) The applicant shall attend the trial on each date scrupulously and shall not influence any of the
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Supreme Court No. 54-2021 First Information Report No. 116/2020 Police Station Jafrabad State versus Md. Juber and Others State Prosecution versus (1) Md. Juber Son of Rizwan Resident of House No. 5B/26, Gali No.6, Guruwara Mohalla, Maujpur, Delhi. (2) Md. Aamir Son of Shri Suwale Resident of House No. C-6, Gali No.20, Subhash Mohalla, Ghonda, Delhi. (3) Samshuddin Son of Sahbuddin Resident of House No. 5B/26, Gali No.6, Guruwara Mohalla, Maujpur, Delhi. (4) Md. Barik Son of Ahmad Hussain Resident of House No. 227, F/F, Gali No.9, Gurudwara Mohalla, Maujpur, Delhi., The present order shall decide the question of charge against four accused persons namely Md. Juber, Md. Aamir, Samshuddin and Md. Barik. The charge sheets were filed against Md. Juber, Md. Aamir, Samshuddin and Md. Barik under Section 147, 148, 149, 336, 307, 120B Indian Penal Code and Section 27 Arms Act., It is the case of the prosecution that the accused persons namely Mohd. Juber, Amir, Samshuddin and Mohd. Barik along with others formed an unlawful assembly and in prosecution of their common object on 26 February 2020 at about 10.30 pm at Chudi Gali, Maujpur, Delhi fired at Vinod Kumar, Vijay, Man Mohan and Varun., Public witnesses Vinod Kumar, Vijay, Man Mohan and Varun gave statements that on 26 February 2020 they were present in their houses and armed rioters attacked them and were also firing. The rioters were roaming in the area shouting Allah‑ho‑Akbar and people were terrified., Supplementary statements were recorded in which Vinod Kumar, Vijay, Man Mohan and Varun specifically stated that when armed rioters were shouting Allah‑ho‑Akbar and roaming in the Gali, they saw the rioters who, with an intention to kill them, fired at them. They became terrified and rushed inside their houses. Public witness Man Mohan identified accused Juber and Aamir in his statement recorded on 17 March 2020 at Police Station Jafrabad as being part of the aggressive armed rioters. He also identified Samshuddin and Barik in his statement dated 31 March 2020., Learned Counsel for the accused persons argued that there were contradictions in the statements of witnesses and thus charges should not be framed., I have heard learned Special Public Prosecutor for the State and learned Counsel for the accused persons., Before discussing the factual narrative of the case as adumbrated in the charge sheet, it is useful to refer to Section 228 of the Code of Criminal Procedure, 1973 which provides for framing of charge. Section 228 CrPC: (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried., It has been held in a series of judgments that at the time of framing of charge, only a prima facie case has to be seen and whether the case is beyond reasonable doubt is not to be seen at this stage. Detailed reasons are not required at the stage of charge. The Honorable Supreme Court of India in Bhawna Bai versus Ghanshyam and Others (2020) 2 Supreme Court Cases 217 held that after referring to Amit Kapoor in Dinesh Tiwari v. State of Uttar Pradesh and another (2014) 13 SCC 137, the Supreme Court held that for framing charge under Section 228 CrPC, the judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing of parties, if the judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence triable by the Court of Session, he shall frame the charge against the accused for such offence., For framing the charges under Section 228 CrPC, the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only a prima facie case is to be seen. As held in Knati Bhadra Shah and another v. State of West Bengal (2000) 1 SCC 722, while exercising power under Section 228 CrPC, the judge is not required to record his reasons for framing the charges against the accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the accused and framed the charges against the accused respondents No.1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the accused respondents No.1 and 2 under Section 302 IPC read with Section 34 IPC and the High Court, in our view, erred in quashing the charges framed against the accused. The impugned order cannot therefore be sustained and is liable to be set aside., In the context of the present case, what is required to be seen at this stage is whether the prima facie case is made out or not, i.e., whether there are grounds for presuming that the accused had committed any offence. The reference point for arriving at any conclusion is the charge sheet which is the culmination of the investigation conducted by the police., From the statements of the three public witnesses Vinod Kumar, Man Mohan and Varun, it is clear that armed rioters formed an unlawful assembly and on 26 February 2020 at about 10.30 pm at Chudi Gali, Maujpur, Delhi fired at Vinod Kumar, Vijay, Man Mohan and Varun. Their statements categorically state that all four accused persons fired at them with an intention to kill. Witness Man Mohan identified all four accused persons namely Md. Juber, Md. Aamir, Samshuddin and Md. Barik as part of the armed rioters mob. Thus, for the purpose of charge under Sections 147, 148, 307 read with Section 149 IPC, the prosecution has met its case., Regarding Section 336 IPC, there is no necessity to frame charge under Section 336 IPC (Act endangering life or personal safety of others) as charge under Section 307 IPC is specifically made out on the strength of their statements. Moreover, the accused persons themselves did not fire nor was a pistol or bullet recovered in the present case. As far as charge under Section 120B IPC is concerned, there is nothing on record to show prior meeting of the minds for the purpose of criminal conspiracy but there was an armed unlawful assembly of riotous mob consisting of the accused persons which fired at the public witnesses with an intention to kill them. Thus, there was a firing by the riotous mob consisting of the accused persons in prosecution of their common object to do rioting and to kill three witnesses. Thus, accused persons are liable under Section 149 IPC but discharged of the offence punishable under Section 120B IPC., Thus, on the basis of material on record, I am of the opinion that there are grounds for presuming that the accused persons namely Md. Juber, Md. Aamir, Samshuddin and Md. Barik have committed offences under Sections 147, 148, 307 read with Section 149 IPC. However, the accused persons are discharged of the offences punishable under Sections 336 and 120B IPC. Ordered accordingly., Amitabh Rawat, Additional Sessions Judge, Shahdara District, Karkardooma Courts, Dated: 13 December 2021.
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Special Leave Petition (Criminal) No. 6199 of 2023 versus Special Leave Petition (Criminal) No. 6200 of 2023. Leave granted. The present appeals by way of special leave arise from the order dated 06 April 2023 passed by the learned Single Judge of the High Court of Judicature at Rajasthan, Jaipur Bench in the second bail application No. 219 of 2023 whereby the applications filed by the first respondent in the respective appeals under Section 439 of the Code of Criminal Procedure, 1873 (Criminal Procedure Code) have been allowed and bail granted on furnishing a personal bond for a sum of Rs. 1,00,000 (Rupees one lakh only) with two sureties of Rs. 50,000 each for their presence in connection with FIR No. 94 of 2022 registered on the complaint of the appellant by Police Station Mandawar, District Dausa, Rajasthan for offences punishable under Section 376D, 384, 506 of the Indian Penal Code, Section 326 of the Protection of Children from Sexual Offences Act, Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 66 of the Information Technology Act., Brief Background: The appellant (original complainant) is the uncle of the minor girl. An FIR No. 94 of 2022 was registered on 25 March 2022 with the jurisdictional police alleging gang rape, threat of making a video of the rape go viral and extortion. The offences alleged were punishable under Section 376D, 384 and 506 of the Indian Penal Code read with Section 326 of the Protection of Children from Sexual Offences Act and Section 66D of the Information Technology Act. The FIR was registered against Vivek, Deepak and Netram., It is the case of the prosecution that the minor girl, aged 15 years and six months and studying in Class X, had become acquainted with a boy named Vivek who seduced her and took her to Samleti Palace Hotel, Mandawar Road, Mahwa on 24 February 2021. He, along with his friends Deepak and Netram, gang‑raped her after drugging her and recorded videos of the incident. They threatened her not to disclose the incident, alleging they would eliminate her father and brother and make the video viral. The complaint states that the accused proclaimed they would not be harmed as they were powerful, causing the minor girl to fear them. Under threat of the video being circulated, she gave her mother’s gold ornaments to Vivek as instructed. It was further alleged that Vivek again raped her under the threat of the video being made viral and extracted money from her. She was allegedly raped 45 times in the same hotel, becoming weak and sick. Although her parents inquired, she did not reveal anything out of fear. On 2 May 2021, during the marriage of her elder brother’s daughter, the family was busy and the accused forced the minor girl to permit Vivek and his companions to enter the house, taking the jewellery kept for the marriage. An FIR No. 142 of 2021 was registered by the mother of the minor girl with the Police Station, Raini. During investigation, Vivek was interrogated and confessed to taking the jewellery and continued to threaten the minor girl not to disclose the rape. On 24 March 2023, the minor girl disclosed the incident of 24 February 2021 after much persuasion, leading the complainant to seek strict action against the accused., After investigation, the charge‑sheet was filed against Netram and Vivek only. However, the jurisdictional court took cognizance against Deepak (also known as Dileep Kumar or Dipu) by order dated 09 June 2022 for offences punishable under Section 376(2)(n), 376DA of the Indian Penal Code and Section 516 of the Protection of Children from Sexual Offences Act, and the case was registered and the accused summoned. The order taking cognizance against Deepak was challenged before the High Court, which dismissed the challenge; the subsequent petition before this Court was later withdrawn., The applications for grant of bail filed by the respondents in the respective appeals were dismissed by the special court on 27 June 2022 and by the High Court on 11 January 2023. After the bail applications were rejected, the first respondent filed Criminal Miscellaneous Bail Applications under Section 439 of the Criminal Procedure Code before the High Court of Judicature at Rajasthan. By the impugned order dated 06 April 2023, the High Court granted bail to them, considering the statement of the prosecutrix recorded during the trial and the possibility of a lengthy trial. The complainant, aggrieved by the grant of bail, has preferred these appeals by special leave., Contentions of the Appellant (for the Complainant): The appellant contends that the offences alleged against the accused are heinous, punishable with a minimum sentence of life imprisonment and at least twenty years. The victim’s statements recorded under Sections 161 and 164 of the Criminal Procedure Code categorically state that all the accused committed gang rape, and these statements remain unaltered, establishing a prima facie case for conviction. It is also contended that one of the accused, Deepak, is the son of a sitting Member of Legislative Assembly, raising a risk of evidence tampering if bail is granted. The investigation reveals that entries in the hotel register for the date of the incident are missing, the CCTV footage of that date has been deleted, the victim’s school records have been manipulated, the telephone number of Deepak obtained by police is incorrect, and Deepak’s name disappeared from the charge‑sheet despite the victim’s statements and his inclusion in the FIR., The appellant also contends that threats have been made to the father of the minor girl, who is a police constable, to withdraw the complaint, and other witnesses are being threatened. These aspects were not considered by the High Court, resulting in an erroneous order granting bail. Accordingly, the appellant seeks cancellation of the bail granted by the High Court., Contentions of the Respondent Counsel: Ms. Meenakshi Arora, learned Senior Counsel for the respondent, supports the impugned order of the High Court. She contends that the complaint was lodged more than one year after the alleged incident, which is a defect in the prosecution’s case. She further argues that school records show the victim was present at school on the date of the incident, making the complaint appear frivolous. Telephone records of the accused Deepak indicate he was 40 to 80 kilometres away from the incident location on that date, suggesting false implication. The first respondent had no connection or relationship with the prosecutrix, and no calls were exchanged between them. In contrast, accused Vivek was known to the prosecutrix, as evidenced by calls recorded during the trial. Between the incident date (24 February 2021) and the registration of FIR No. 94 of 2022 (25 March 2022), another FIR No. 142 of 2021 was lodged by the victim’s mother concerning theft of jewellery by Vivek, with no mention of rape against Deepak. The investigating officer recovered the jewellery from Vivek. These facts indicate that Deepak had no connection to the alleged rape and was implicated for political reasons. Consequently, the investigating officer found no material to implicate Deepak and filed a closure report while filing charge‑sheets against the other two accused. The counsel therefore prays for rejection of the appeals, asserting Deepak’s innocence., Learned counsel appearing for Netram in Special Leave Petition (Criminal) No. 6200 of 2023 contends that there was a delay of thirteen months in lodging the FIR and that during the trial the prosecution made certain admissions creating a hole in its case. Accordingly, he seeks dismissal of the appeal., Learned counsel for the State, reiterating the contentions in the counter‑affidavits filed in the respective appeals, has prayed for the bail granted to Netram to be set aside, i.e., for the appeal to be allowed, aligning with the complainant. In the counter‑affidavit opposing bail in Special Leave Petition (Criminal) No. 6199 of 2023 against the order granting bail to Deepak, the State has effectively supported Deepak’s defence and the material collected during investigation, thereby countering the complainant’s claim. Consequently, the State has prayed for dismissal of the appeals., The grant of bail is a discretionary relief that must be exercised judiciously and not as a matter of course. It depends on the contextual facts of each case, and no exhaustive parameters can be prescribed. However, the following factors are relevant: (a) the nature of the accusations, the severity of the punishment, whether the accusation entails a conviction, and the nature of supporting evidence; (b) reasonable apprehensions of witness tampering or threat to the complainant; (c) a prima facie satisfaction of the charge, even if the entire evidence establishing guilt beyond reasonable doubt is not presented; (d) the genuineness of the prosecution, with frivolous prosecutions being considered. In the event of doubt about the genuineness of the prosecution, the accused is ordinarily entitled to bail. This principle is reflected in the decision of the Supreme Court of India in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another (2004) 7 SCC 528, where the parameters for granting bail were outlined., The law regarding grant or refusal of bail is well settled. The court granting bail must exercise its discretion judiciously and not as a matter of course. While a detailed examination of evidence is not required at the bail stage, the order must state reasons for a prima facie conclusion that bail is appropriate, especially when the accused is charged with a serious offence. An order lacking such reasons suffers from non‑application of mind. The court must consider, among other circumstances, the following factors before granting bail: (a) the nature of the accusation, the severity of punishment on conviction, and the nature of supporting evidence; (b) reasonable apprehension of witness tampering or threat to the complainant; (c) prima facie satisfaction of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598] and Puran v. Rambilas [(2001) 6 SCC 338].), It must be borne in mind that a prayer for cancellation of bail requires cogent and overwhelming circumstances. Bail once granted cannot be cancelled mechanically without assessing whether any supervening circumstances affect the fairness of the trial. This principle is supported by the judgment of the Supreme Court of India in Daulat Ram and others v. State of Haryana (1995) 1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4 SCC 693, and xxx v. State of Telangana (2018) 16 SCC 511., The Supreme Court of India in Daulat Ram’s case held that cancellation of bail must be dealt with on a different footing than the grant of bail. Supervening circumstances that develop after bail is granted and are non‑conducive to a fair trial may necessitate cancellation, a principle reiterated in recent judgments such as Ms. X v. State of Telangana., The Supreme Court of India in Vipin Kumar Dhir v. State of Punjab (2021 SCC Online SC 854) added that bail can be revoked where the court considered irrelevant factors or ignored relevant material, rendering the bail order legally untenable. The gravity of the offence, conduct of the accused, and societal impact of undue indulgence when investigation is at an early stage are among situations where a superior court may interfere to prevent miscarriage of justice and uphold the criminal justice system., Each case has unique facts that are key to adjudicating bail matters, including cancellation. Circumstances may arise where interference with the administration of justice or attempts to evade due process constitute an abuse of the concession granted to the accused., The offence alleged in the instant case is heinous, constituting an onslaught on the dignity of womanhood. If the guilty are not punished by law and are allowed to move freely in society despite prima facie material, they may threaten or induce prosecution witnesses, undermining the criminal justice system. In such circumstances, the superior court must intervene to rectify erroneous orders of lower courts., The Supreme Court of India in Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 held that considerations for granting bail and for cancelling bail are independent and do not overlap. When considerations relevant to bail grant are not taken into account, and an earlier order of rejection exists, the High Court must explicitly state reasons for the departure. The court emphasized that discretion must be exercised strictly in accordance with law and not arbitrarily., The Supreme Court of India in Prashanta Kumar Sarkar v. Ashish Chatterjee and another (2010) 14 SCC 496 observed that the impugned order was unsustainable. While the Court does not normally interfere with a High Court’s bail order, the High Court must exercise its discretion judiciously, cautiously, and in compliance with established principles. Factors to be considered include: (i) prima facie or reasonable grounds to believe the accused committed the offence; (ii) nature and gravity of the accusation; (iii) severity of punishment on conviction; (iv) danger of the accused absconding; (v) character, means, position of the accused; (vi) likelihood of repeat offence; (vii) reasonable apprehension of witness influence; and (viii) danger of justice being thwarted by granting bail., Applying the foregoing legal analysis to the facts, it appears that the High Court was primarily influenced by the delay of thirteen months in filing the complaint when granting bail to the respondents. The complaint alleges gang rape of a minor girl aged 15 years and six months, studying in Class X. Her father is a police constable of lower rank. One of the respondents, Deepak, is the son of a sitting Member of Legislative Assembly. Another accused, Vivek, appears to have criminal antecedents, and the third accused is the manager of the hotel where the alleged incident occurred. Although the charge‑sheet was filed against only Vivek and Netram, the complaint specifically alleged rape by Deepak, who was subsequently dropped. The jurisdictional Sessions Court took cognizance of the offence against Deepak by order dated 09 June 2022; this order was challenged in Criminal Revision No. 979 of 2022 before the High Court, which dismissed it on 13 July 2022. The Special Leave Petition challenging the same (Criminal) No. 9458 of 2022 was withdrawn on 3 February 2022. Thus, the order taking cognizance against Deepak has attained finality., In this background, the contention that delay is fatal to the prosecution, when examined, indicates that the FIR registered on 25 March 2022 for the incident of 24 February 2021 cites constant threat posed by the accused as the reason for delay. Considering the minor’s tender age, societal circumstances, and the threat of a video of the rape being made viral, the delay cannot be dismissed as fatal to the prosecution. Delay alone does not extinguish the criminality of the incident; the facts must be assessed case by case., The accused Deepak was apprehended by the jurisdictional Sessions Court through an arrest warrant on 9 January 2023. He did not initially surrender after being charge‑sheeted nor participate in the investigation even after the warrant was issued., The fact that Deepak is the son of a sitting MLA indicates a domineering influence that could delay proceedings and pressure witnesses to retract their statements or face threats for not complying with his directives, thereby aiding the defence., The prosecutrix alleges that the accused respondents participated in the gang rape and that she was threatened that any disclosure to family members would result in the video of the rape being made viral. Investigation of the FIR revealed that the hotel register entries for the date of the incident were missing, and although CCTV cameras existed, the footage for that date was unavailable. Vivek called the prosecutrix several times and exchanged messages; Vivek and Netram remained in regular contact. Deepak was dropped from the charge‑sheet because call records did not place him at the scene on the relevant date. Nevertheless, the prosecutrix named Deepak as a participant in her statements recorded under Sections 161 and 164 of the Criminal Procedure Code and in the FIR. Consequently, based on an application under Sections 190‑193 of the Criminal Procedure Code, the trial court took cognizance against Deepak for offences punishable under Section 376D of the Indian Penal Code and Section 5 of the Protection of Children from Sexual Offences Act, and that order has attained finality., The complainant’s grievance is that Deepak has threatened the prosecutrix and other witnesses, creating a justified apprehension of danger, especially given Deepak’s influential position. The fact that, after recording the prosecutrix’s deposition, other prosecution witnesses have not come forward despite more than nine hearing dates, lends credence to the complainant’s apprehension. The High Court erred in not considering these basic facts while granting bail, despite the prima facie possibility of the accused’s culpability., The courts have placed individual liberty on a high pedestal and extended protection of such rights whenever required. Accordingly, emphasis is placed on furnishing reasons for granting bail while balancing the requirement of a fair trial, even if the reasoning is brief., In the aforesaid circumstances, the impugned order granting bail is bereft of material particulars justifying bail. The High Court appears to have been swayed by the delay and the unavailability of the video, giving a free pass to the allegations in the FIR, the statements recorded under Sections 161 and 164 of the Criminal Procedure Code, and the prosecutrix’s testimony before the jurisdictional court., Consequently, we are of the view that the order of the High Court must be set aside, and it is hereby set aside. The accused/respondents are directed to surrender before the jurisdictional court within two weeks from today, failing which they shall be taken into custody. They may seek bail after the evidence and depositions of the remaining witnesses are recorded; any such application shall be considered by the High Court on its merits without being influenced by the observations herein. The jurisdictional court shall also not be influenced by these observations and shall be limited to the present proceedings. The appeals are accordingly allowed.
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An application under Section 378(4) of the Code of Criminal Procedure, 1973 has been filed on behalf of the State/Appellant seeking leave to appeal against the judgment of acquittal dated 15 November 2016 whereby the respondent has been acquitted of the offence punishable under Section 376 of the Indian Penal Code., The case FIR No. 226/2015 under Section 376 of the Indian Penal Code was registered on 18 February 2012 on the complaint of Ms. Zarina who stated that in the months of October and November 2014 while she was alone, the respondent who is her real brother-in-law (jija) came to her house four to five times and committed rape upon her. A day before 18 February 2012 she felt pain in her abdomen and her mother took her to DDU Hospital, where the doctor confirmed her pregnancy., On the registration of the FIR, investigations were taken up during which the statements of the witnesses were recorded. The medical examination of the victim was done and the doctor opined that she was pregnant. On completion of investigation, a charge sheet was filed in the court., By order dated 17 April 2015 charges were framed against the respondent under Section 6 read with Section 5(1) of the Protection of Children from Sexual Offences Act to which he pleaded not guilty., The prosecution, in support of its case, examined nine witnesses. The material witnesses being the complainant Ms. Zarina recorded as Witness 1 and her mother as Witness 2., The Learned Additional Sessions Judge, on appreciation of the evidence, acquitted the respondent by judgment dated 15 November 2016. Aggrieved, the present application for grant of leave to appeal has been filed., Submissions were heard., The prosecution, in order to prove the age of the child victim, examined Witness 3, Ms. Rita Mishra, Principal, Sarvodya Kanya Vidyalaya, who produced the original Admission Register and original Pasting File, wherein the child was admitted to the school in sixth standard on 31 March 2012. Her date of birth was recorded as 13 May 2000. The father of the child had also submitted a School Leaving Certificate of class fifth at the time of her admission to class sixth. The date of birth of the child was therefore not questioned, according to which she was about fifteen years of age at the time of the incident., The child victim was examined as Witness 2 who deposed that the accused/respondent Kayum was her real brother-in-law (husband of her elder sister). He along with his family used to reside one or two streets away from her house. In the month of December 2014 she, along with her mother, respondent and his wife, went to their native place in Bihar to attend the marriage of their cousin sister. After attending the marriage she married the accused Kayum. Thereafter, she, along with her mother, respondent, husband and sister returned to Delhi. She further deposed that the respondent thereafter made physical relation with her on various occasions. She became pregnant and this fact came to the knowledge of her mother. Her parents were not aware of her marriage with the respondent. Therefore, in the month of February 2015 her mother called the police and on the same day she, along with her mother, went to the police station where her mother made a complaint. Her statement under Section 164 of the Code of Criminal Procedure, Exhibit Witness 1/B was recorded. She further deposed that the respondent had never committed any wrong with her before their marriage. The Assistant Public Prosecutor cross-examined the witness, but nothing material could be elicited., The other material witness was Witness 2, the mother of the victim. She deposed that her elder daughter had got married to the respondent/accused about ten years back and they used to reside in a separate house in the vicinity. On the noon of 18 February 2015, her daughter/victim complained about pain in the stomach. When she took her to the DDU Hospital, she was found pregnant. On making an enquiry, the child revealed that she had got married to the respondent without her consent. However, she did not rely on the version of her daughter and took her to the police station where she made a complaint and got the FIR registered., Witness 5, Dr. Arundhati Upadhyay, had examined the child and deposed that she performed the Medical Termination of Pregnancy., The Learned Additional Sessions Judge rightly observed that in view of the testimony of the child that she got married to the respondent in December 2014 and only thereafter did they have physical relationship, no offence under Section 6 read with Section 5(1) of the Protection of Children from Sexual Offences Act was made out and the respondent was rightly acquitted., We find that since the child victim was the wife who was almost fifteen years of age, the physical relationship of the respondent with the victim cannot be termed as rape. The respondent has been rightly acquitted., We find no ground for grant of leave to appeal. The application is hereby dismissed.
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Applicant: Suraj. Opposite Party: State of Uttar Pradesh through Principal Secretary, Home, Lucknow, and others. Counsel for Applicant: Ram Pukar Singh. Counsel for Opposite Party: Government Advocate, Shiv Charitra Tiwari. Honourable Justice Rajesh Singh Chauhan, J., Heard Sri Ram Pukar Singh, learned counsel for the applicant, Dr. Gyan Singh, learned Additional Government Advocate for the State, and Sri Ram Lakhan, learned counsel for the father of the informant/complainant, as the prosecutrix is the informant herself., It has been contended by the learned counsel for the applicant that the applicant has been in jail since 6 January 2022 in Crime No. 0007/2022 under section 376, section 506 of the Indian Penal Code, and sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012, Police Station Banthra, District Lucknow., It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged., At the very outset, learned counsel for the applicant has submitted that this is a case of love affair., Even as per the prosecution story narrated in the First Information Report, she had gone to Ludhiana with the present applicant willingly where the applicant established physical relation on the promise of marriage., Thereafter, attention has been drawn to the statement of the prosecutrix/informant recorded under sections 161 and 164 of the Criminal Procedure Code, wherein she has not leveled any allegation against the applicant., Particularly, in the statement recorded under section 164 of the Criminal Procedure Code, she did not support the prosecution version but submitted that she was willingly living with the applicant., Their relation was consensual. They got married without informing their family members., She subsequently conceived and was blessed with a male child., It has been further submitted that presently the informant/prosecutrix is living with the family members of the applicant and she does not want to go to the place of her parents., At this stage, attention has been drawn to the counter affidavit of the father of the prosecutrix wherein it has been categorically indicated in paragraph 4 that his daughter is happily living with the family members of the accused., Learned counsel for the father of the prosecutrix has also informed, on the basis of instructions, that presently the prosecutrix is living with the family of the accused along with her infant child., Therefore, learned counsel for the applicant has submitted that since the prosecutrix is not supporting the prosecution version and she is living with the family of the accused, there would be no apprehension of absconding or tampering of evidence or witnesses if the applicant is released on bail., Learned counsel for the father of the informant/prosecutrix has supported the version of learned counsel for the applicant., However, learned State Counsel Dr. Gyan Singh has opposed the bail application on the point that the age of the applicant at the time of the incident was below 18 years, more precisely around 15 years and one month, based on the statement of the principal of the institution where the prosecutrix was studying., Therefore, such consent of the prosecutrix is meaningless in the eyes of law and the applicant should not be released on bail., On that, learned counsel for the applicant has drawn the attention of the Honourable High Court of Uttar Pradesh to a decision dated 25 January 2022 in re: Criminal Miscellaneous Bail Application No. 53947 of 2021 (Atul Mishra vs. State and three others), wherein the Court in paragraphs 17 and 18 observed as follows:, \17. No doubt consent of a minor girl has no value in the eyes of law, but in the present scenario where the girl has given birth to a baby from the applicant and in her section 164 statement she has declined to go with her parents and for the last four to five months has been residing at Rajkiya Balika Grih, Khuldabad, Prayagraj in most inhuman condition with her infant baby; this by itself is pathetic and would amount to adding to her miseries. 18. This is an extremely gloomy situation, where the applicant is in jail since 4 October 2021 for the alleged offence committed by him while marrying a girl belonging to a scheduled caste, and both of them are peacefully residing as husband and wife. It is extremely harsh and inhuman to deprive that baby of parental love and affection on the ground that the girl was minor. Even today the boy (the applicant) is more than ready to keep his wife and baby with him and would take good care of both.\, He has further submitted that in re: Atul Mishra (supra) all facts are similar except the prosecutrix in that case was residing at Rajkiya Balika Grih, Prayagraj, whereas the prosecutrix in the present case is residing with the family members of the accused., Further, as per learned counsel for the applicant, on the basis of instructions, as soon as the applicant is released on bail he shall look after her properly., The learned counsel for the applicant has given an undertaking on behalf of the applicant that he shall not misuse the liberty of bail, shall cooperate with the trial proceedings, and shall abide by all terms and conditions of bail, if granted., Heard learned counsel for the parties and perused the material available on record., At the very outset, I am pained to notice that children of tender age who have not attained the age of majority are indulging in such relations which may not be said to be proper., When a certain age has been prescribed by the statute for marriage and cohabitation, any act committed prior to such age cannot be approved., The age of 15‑16 years or below 18 years is not an age where any young couple should enter into the institution of marriage., But in the peculiar facts and circumstances of the present case, the applicant and the prosecutrix have not only got married but they have an infant son from that wedlock, and it is the responsibility of the couple to look after their child properly., If the applicant is not released from jail or is kept in jail, there might be a possibility that his minor wife and son may not be taken care of properly by his parents; therefore, considering the larger interest of the child and mother, the bail of the applicant is being considered., This bail order may not be cited in any other case as a precedent, as the peculiar facts and circumstances of the present case warrant the allowance of the bail application., Accordingly, the bail application is allowed., Let the applicant Suraj, involved in the aforesaid case, be released on bail upon furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Honourable High Court of Uttar Pradesh concerned, with the following conditions imposed in the interest of justice: The applicant shall file an undertaking that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, the trial court may treat it as abuse of liberty of bail and pass orders in accordance with law. The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. If the applicant misuses the liberty of bail during trial and a proclamation under Section 82 of the Criminal Procedure Code is issued to secure his presence, and the applicant fails to appear before the court on the date fixed in such proclamation, then the trial court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code. The applicant shall remain present, in person, before the trial court on the dates fixed for opening of the case, framing of charge and recording of statement under Section 313 of the Criminal Procedure Code. If, in the opinion of the trial court, the applicant’s absence is deliberate or without sufficient cause, the trial court may treat such default as abuse of liberty of bail and proceed against him in accordance with law. The applicant shall not leave the country without permission of the Honourable High Court of Uttar Pradesh concerned.
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Mahesh Kariman Tirki, about 22 years old, Agriculturist, resident of Murewada, Taluka Etapalli, District Gadchiroli; Pandu Pora Narote, about 27 years old, Agriculturist, resident of Murewada, Taluka Etapalli, District Gadchiroli; Hem Keshavdatta Mishra, about 32 years old, Education, resident of Kunjbargal, Post Nagarkhan, District Almora, Uttarakhand; Prashant Rahi Narayan Sanglikar, about 54 years old, Journalist, resident of 87, Chandrashekhar Nagar, Krushikesh, Dehradun, Uttarakhand; Vijay Nan Tirki, about 30 years old, Labour, resident of Beloda, Post P.V. 92, Dharampur, Taluka Pakhanjoor, District Kanker, State of Maharashtra, through Police Station Office Aheri, Gadchiroli; G. N. Saibaba, about 47 years old, Service (suspended), resident of 100, B-Block, Hill View Apartments, Vasant Vihar, near PVR Cinema, State of Maharashtra, through Police Station Office Aheri, Gadchiroli. Mr. Pradeep Mandhyan with Mr. Barunkumar and Mr. H. P. Lingayat appeared as counsel for the appellants in Criminal Appeal 136/2017. Mr. Subodh Dharmadhikari, Senior Counsel assisted by Mr. N. B. Rathod, appeared as counsel for the appellant in Criminal Appeal 137/2017. Mr. Siddharth Dave, Special Public Prosecutor‑Senior Counsel and Mr. H. S. Chitaley, Assistant Special Public Prosecutor, appeared for the respondent State., Criminal Appeal 136/2017 and Criminal Appeal 137/2017 arise from the common judgment dated 07‑03‑2017 rendered by the learned Sessions Judge, Gadchiroli, whereby the appellants were convicted for offences punishable under Sections 13, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 read with Section 120‑B of the Indian Penal Code., Accused 1 Mahesh Kariman Tirki, Accused 2 Pandu Pora Narote, Accused 3 Hem Keshavdatta Mishra, Accused 4 Prashant Rahi Narayan Sanglikar, Accused 5 Vijay Nan Tirki and Accused 6 G. N. Saibaba were convicted under Section 13 of the UAPA read with Section 120‑B of the IPC, Section 18 of the UAPA read with Section 120‑B of the IPC, Section 20 of the UAPA read with Section 120‑B of the IPC, Section 38 of the UAPA read with Section 120‑B of the IPC and Section 39 of the UAPA read with Section 120‑B of the IPC. Each was sentenced to rigorous imprisonment for seven years and a fine of Rs 1,000, or in default rigorous imprisonment for six months; some were sentenced to imprisonment for life and a fine of Rs 1,000, or in default rigorous imprisonment for six months; others were sentenced to rigorous imprisonment for ten years and a fine of Rs 1,000, or in default rigorous imprisonment for six months., Accused 5 Vijay Nan Tirki was sentenced under Section 13 of the UAPA read with Section 120‑B of the IPC to rigorous imprisonment for four years and a fine of Rs 1,000, or in default rigorous imprisonment for six months; under Section 18 to rigorous imprisonment for ten years and a fine of Rs 1,000, or in default rigorous imprisonment for six months; under Section 20 to rigorous imprisonment for ten years and a fine of Rs 1,000, or in default rigorous imprisonment for six months; under Section 38 to rigorous imprisonment for five years and a fine of Rs 1,000, or in default rigorous imprisonment for six months; and under Section 39 to rigorous imprisonment for five years and a fine of Rs 1,000, or in default rigorous imprisonment for six months. Criminal Appeal 136/2017 is preferred by accused 1 to accused 5 and Criminal Appeal 137/2017 is preferred by accused 6., Assistant Police Inspector Atul Shantaram Awhad, then attached to the Special Branch, Gadchiroli, received secret information that accused 1 Mahesh Tirki and accused 2 Pandu Narote were active members of the banned terrorist organisation Communist Party of India (Maoist) and its frontal organisation Revolutionary Democratic Front, and were abetting and assisting the underground cadre by providing information, material and facilitating travel and relocation of members., API Awhad and his squad kept accused 1 and accused 2 under surveillance in the Naxal‑affected areas of Etapalli, Aheri and Murewada. On 22‑08‑2013 at 6:00 p.m. they observed the accused standing near the Aheri Bus Station. At 6:15 p.m. a person wearing a white cap approached them and a conversation ensued that the squad found suspicious. API Awhad approached and questioned the three persons, receiving evasive answers, and then summoned two panchas who identified the three persons as Mahesh Kariman Tirki, Pandu Pora Narote and Hem Keshavdatta Mishra., Accused 1, accused 2 and accused 3 were brought to the Aheri Police Station where personal searches were conducted in the presence of panch witnesses. From accused 1, seized items included three pamphlets of the banned organisation, a purse containing Rs 60, a platform ticket of Ballarshah Railway Station dated 28‑05‑2013, an identity card and a Micromax mobile phone. From accused 2, seized items included a Samsung mobile phone, a purse containing Rs 1,480, a platform ticket of Delhi Railway Station dated 28‑05‑2013, a PAN card and an identity card. From accused 3, seized items included a 16 GB Sandisk memory card wrapped in paper, a purse containing Rs 7,700, a railway ticket from Delhi to Ballarshah dated 19‑08‑2013, a camera with charger, a PAN card, an identity card and a cloth bag., API Awhad lodged a report against the three accused, on the basis of which Crime No. 3017/2013 was registered for offences punishable under Sections 13, 18, 20, 38 and 39 of the UAPA read with Section 120‑B of the IPC. Further investigation was assigned to Sub‑Divisional Police Officer Suhas Bawche., Interrogation of accused 1 and accused 2 revealed that Naxalite Narmadakka of CPI (Maoist) had assigned them the task of escorting accused 3, who was arriving from Delhi with important material, to the Murewada forest. The meeting with accused 3 was scheduled at the Aheri Bus Stop. During interrogation of accused 3, it was revealed that accused 6 G. N. Saibaba, an active member of CPI (Maoist) and RDF, had handed over to accused 3 a memory card wrapped in paper with instructions to deliver it to Narmadakka., Further interrogation of accused 3 revealed the involvement of accused 4 Prashant Rahi. Investigating Officer Bawche received information that accused 4 would visit Raipur or Deori. On 01‑09‑2013 Police Inspector Rajendrakumar Tiwari found accused 4 and accused 5 Vijay Tirki at the Chichgarh T‑Point, Deori, in suspicious circumstances and brought them to the Aheri Police Station on 02‑09‑2013. They were arrested and personal searches were conducted. From accused 4, seized items included a money purse with Rs 8,800, a visiting card, a driving licence, a Yatri card, a newspaper (Dainik Bhaskar) and eight papers containing Naxal literature along with typed papers pertaining to under‑trial Maoist leader Narayan Sanyal. From accused 5, seized items included a silver‑coloured mobile phone, cash of Rs 5,000, four pieces of paper with phone numbers and a newspaper (Dainik Bhaskar)., Investigation revealed that accused 5 was instructed by Ramdar, an active member of CPI (Maoist) and RDF, to receive accused 4 and escort him safely to the Abuzmad forest area to meet a senior Maoist cadre. It also revealed that accused 3, accused 4 and accused 6 G. N. Saibaba entered into a criminal conspiracy whereby accused 6 arranged the meeting of accused 3 and accused 4 with underground members of CPI (Maoist) and RDF, handed over a 16 GB Sandisk SD memory card containing important Maoist communications to accused 3 and accused 4 with instructions to deliver it to Naxalites hiding in the Abuzmad forest, intending to further the activities of the terrorist organisation and its frontal organisation., Accused 3 opened his Facebook account in the presence of panch witness Shrikant Gaddewar at the Aheri Police Station on 26‑08‑2013. The account was opened by entering his username and password on the police station laptop; screenshots and printouts were taken by Investigating Officer Bawche in the presence of the panch witness and recorded in a panchanama. The memory card seized from accused 3 was sent to the Central Forensic Science Laboratory, Mumbai, where forensic analysis was performed by Mr. Bhavesh Nikam, who submitted a report and certified hard copies of the mirror images of the data contained in the 16 GB memory card., Sanction under Section 45(1) of the UAPA was granted by the sanctioning authority Mr. Amitabh Rajan on 15‑02‑2014, restricted to the arrested accused 1 to accused 5. The final report under Section 173(2) of the Code of Criminal Procedure, 1973 was submitted in the court of the Judicial Magistrate First Class, Aheri on 16‑02‑2014. The learned Judicial Magistrate First Class, Aheri committed the case to the Sessions Court by a committal order dated 26‑02‑2014, and the proceedings were registered as Sessions Case 13/2014., In view of the revelations during investigation and interrogation of accused 3 and accused 4, the Investigating Officer Bawche sought a search warrant from the Judicial Magistrate First Class, Aheri‑Nileshwar Vyas on 04‑09‑2013 to search the house of accused 6 G. N. Saibaba. Pursuant to the warrant issued on 07‑09‑2013, the Investigating Officer, accompanied by Delhi Police personnel, cyber expert and videographer, conducted the house search of accused 6 on 09‑09‑2013. The police seized a compact disc, digital versatile disc, pen drive, hard disk, three mobile phones, two SIM cards, books, magazines and other articles. The electronic and digital devices seized were sent to the Central Forensic Science Laboratory, Mumbai for forensic analysis, which was performed by Mr. Bhavesh Nikam, who submitted a report along with hard copies of mirror images of the data contained in the devices., Investigating Officer Bawche attempted to arrest accused 6 but was thwarted by sympathisers and members of the banned organisation. He obtained an arrest warrant from the Judicial Magistrate First Class, Aheri on 26‑02‑2014 and arrested accused 6 on 09‑05‑2014. Accused 6 was produced before the Judicial Magistrate First Class, Aheri and remanded to judicial custody, with the jail authority directed to produce him before the Sessions Court., Sanction under Section 45(1) of the UAPA to prosecute accused 6 was granted by the sanctioning authority Mr. K. P. Bakshi on 06‑04‑2015. The learned Sessions Judge framed charges against accused 1 to accused 6 on 21‑02‑2015. While the sanction to prosecute accused 6 was accorded after cognizance was taken and charges were framed, a supplementary charge‑sheet dated 31‑10‑2015 was filed as Sessions Case 130/2015, and the learned Sessions Judge ordered a joint trial of Sessions Case 30/2014 and Sessions Case 130/2015 on 14‑12‑2015., The Director of Prosecution, appointed by the State Government to conduct an independent review of the evidence, submitted a report dated 11‑02‑2014 recommending sanction against all the accused. However, the sanction order dated 15‑02‑2014 issued by Amitabh Rajan restricted the sanction to the arrested accused 1 to accused 5., The learned Sessions Judge took cognizance against all the accused on 15‑02‑2014. Charges were framed on 21‑02‑2015 against all the accused, pleas were recorded and Petitioner Witness Santosh Bawne was examined. Subsequently, the sanctioning authority Mr. K. P. Bakshi accorded sanction to prosecute accused 6 on 06‑04‑2015. The learned Special Public Prosecutor noted that the Sessions Judge had taken cognizance and framed charges in the absence of sanction, which is not disputed., Accused 6 filed Miscellaneous Criminal Bail Application 96/2014, which was rejected by the learned Sessions Judge, Gadchiroli, on 13‑06‑2014. The bail application argued that the sanction was not legal because the report of the Advisory Committee under Section 45(2) of the UAPA was not considered. The learned Sessions Judge observed that the State Government had accorded sanction within the period of limitation and that the validity of the sanction would be decided on merit after examination of the sanctioning authority., The learned Sessions Judge framed charges against accused 1 to 6 and recorded their pleas on 21‑02‑2015. The accused abjured guilt and claimed to be tried in accordance with law. The prosecution examined twenty‑three witnesses; the accused did not examine any witness in defence. The cross‑examination indicated a defence of false implication. Accused 1 and accused 2 claimed their confessional statements recorded under Section 164 of the Code of 1973 were not voluntary and were retracted promptly. Accused 3 claimed he was arrested at Ballarshah Railway Station and no incriminatory material was seized. Accused 4 claimed he was not arrested at Deori‑Chichgarh as alleged and no material was seized. Accused 5 made a similar claim. Accused 6 claimed there was no seizure of incriminatory material from his house in Delhi and that he was a victim of false implication., The prosecution examined twenty‑three witnesses and produced documentary material, as listed in the judgment. (List of witnesses and documents omitted for brevity.), The learned Sessions Judge authored a detailed judgment concluding that the prosecution had proved the charge. The finding that the commission of offence punishable under Section 13 of the UAPA is proved is based on documents seized from accused 1, digital data retrieved from the 16 GB memory card seized from accused 3, and documents, photographs and video clips retrieved from the electronic gadgets seized from accused 6., The learned Sessions Judge rejected the submission that even if the alleged incriminatory material is assumed proved, the penal provisions of Sections 18 and 20 of the UAPA do not apply. The Judge found that the accused possessed Naxal literature with the intent to circulate amongst underground Naxalites in Gadchiroli and to incite violence, and that the accused hatched a criminal conspiracy to wage war against the Government., Considering the submission that the banned organisation must be proven to be involved in terrorist acts for Section 20 of the UAPA to attract, the learned Sessions Judge relied on documentary material, photographs and video clips to hold that the members of CPI (Maoist) and RDF are involved in violent activities. The Judge referred to the Supreme Court decisions in Arup Bhuyan and Indradas but distinguished them on facts, noting that mere membership without acts of terror does not attract Section 20., The conviction under Sections 38 and 39 of the UAPA is based on the same evidence. The confessionary statements of accused 1 and accused 2 recorded under Section 164, albeit retracted, were considered along with the accomplice testimony of Petitioner Witness 9. The learned Sessions Judge held that the absence of sanction to prosecute accused 6 was not fatal to the case.
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The learned Sessions Judge observed that the sanction order clearly demonstrates that the sanctioning authority did consider the investigation papers and the recommendation of the authority making independent review, and that the sanctioning authority did refer to the documents on the basis of which the satisfaction of existence of prima facie case is arrived at. The learned Sessions Judge, inter alia, relying on the decision of a learned Single Judge in Criminal Application 1256/2021 (Mohammad Bilal Gulam Rasul Kazi v. State of Maharashtra and others) rejected the submission that the period prescribed in the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 for making the recommendation and according sanction is mandatory., The learned Sessions Judge was pleased to convict and sentence the accused as afore‑noted. Every accused other than accused 5 – Vijay Tirki was visited with the maximum punishment provided under the statute i.e. life sentence. The learned Sessions Judge proceeded to observe that no leniency can be shown to accused 6 – G. N. Saibaba who is suffering from 90 % disability since accused 6 – G. N. Saibaba is mentally fit and is a think tank of the banned organisation which by its violent activities has brought the industrial and other development in the Naxal‑affected areas to grinding halt. The learned Sessions Judge further observed that imprisonment for life is not a sufficient punishment to accused 6 – G. N. Saibaba and the hands of the Court are tied in view of the fact that the imprisonment for life is the maximum punishment statutorily provided. We do not approve of the unwarranted observations of the learned Sessions Judge, which may have the unintended consequence of rendering the verdict vulnerable to the charge of lack of dispassionate objectivity., We have consciously rested by indicating the contours of the evidence on record and the findings recorded and have refrained from dealing with the evidence on merits, since in our considered view, the appeals can be decided on the point of invalidity and absence of sanction under Section 45 of the Unlawful Activities (Prevention) Act. Ergo, we would note the submissions only to the extent necessary to answer the questions formulated in the context, and on the anvil of the statutory provisions. We have heard the learned Counsel Mr Pradeep Mandhyan, Mr Barunkumar and Mr H. P. Lingayat on behalf of accused 1 to accused 5, the learned Senior Counsel Mr S. P. Dharmadhikari assisted by Mr N. B. Rathod on behalf of accused 6 and the learned Special Public Prosecutor‑Senior Counsel Mr Siddharth Dave and the learned Assistant Special Public Prosecutor Mr H. S. Chitaley on behalf of the State. We must record, in fairness to the learned Counsel for the accused and the State, that strenuous, and at times painstaking submissions are canvassed on the basis of the oral and documentary material on record, and the correctness or otherwise of the findings recorded by the learned Sessions Judge on merits. For reasons spelt out supra, we would restrict the consideration to the submissions canvassed to the extent relevant and germane to the decision on the aspect of validity of the sanction orders., Mr Pradeep Mandhyan would submit that the sanction order dated 15‑02‑2014 issued by Mr Amitabh Ranjan (PW 19) is vitiated by non‑application of mind. Inviting our attention to the object and purpose of the Amending Act 35 of 2008, which inserted subsection (2) of Section 45 of the Unlawful Activities (Prevention) Act, Mr Mandhyan would submit that apart from the vice of non‑application of mind, the sanction order dated 15‑02‑2014 Exhibit 17 suffers from twin defects which are fatal to the prosecution case. It is submitted that the mandate of subsection (2) of Section 45 of the Unlawful Activities (Prevention) Act is that the appointed authority must make an independent review of the evidence collected during the course of investigation and then submit its report to the sanctioning authority with the recommendation. Mr Mandhyan would argue that the report of the review committee Exhibit 358 conveys only the recommendation without summary of the analysis of the evidence collected, with the result that the legislative intent that the sanctioning authority must be aided and assisted by the review made by an independent and legally trained mind is defeated. Mr Mandhyan would then submit that the time period which is prescribed by the 2008 Rules to make the recommendation and the grant of sanction is breached and the sequitur must be a declaration of the invalidity of the sanction order., In support of the submission that the sanction accorded by Mr Amitabh Ranjan (PW 19) suffers from non‑application of mind, Mr Mandhyan would invite our attention to the deposition of the sanctioning authority to the effect that the conclusion of the existence of criminal conspiracy between the accused was arrived at after scrutinising the investigation papers, particularly the CFSL report, the digital data retrieved from the seized gadgets and the mirror images. Mr Mandhyan would submit that since the CFSL report was collected by PW 7 – Apeksha Ramteke from the forensic laboratory on 15‑02‑2014, the said report could not have been placed before the sanctioning authority who accorded the sanction on 15‑02‑2014. The assertion of the sanctioning authority that call records were considered is inconsistent with record, inasmuch as only part of the Call Details Report was available on the date of accorded sanction. The conspectus of the submissions is that the sanction is accorded without due application of mind to the facts and evidentiary material, as would constitute the ingredients of the offences., Mr S. P. Dharmadhikari, who led the submissions on behalf of accused 6 – G. N. Saibaba, would submit that the learned Sessions Judge took cognizance, framed charge and recorded the plea of accused 6 – G. N. Saibaba, and commenced the recording of evidence in the absence of sanction, which was only accorded later on 06‑04‑2015. It is submitted that in the absence of sanction, the learned Sessions Judge was precluded from taking cognizance of the offence and the proceedings are null and void. The extension of the submission is that absence of sanction is not a curable defect, and strikes at the root of the jurisdiction of the Court. It is further submitted that the egregious defect or absence of sanction is not curable, nor is the accused obligated to demonstrate causation of prejudice or that the objection was raised at the earliest opportunity. Inviting our attention to the provisions of Section 48 of the Unlawful Activities (Prevention) Act and emphasizing the overriding effect envisaged, Mr Dharmadhikari would submit that the provisions of Section 45(1) of the Unlawful Activities (Prevention) Act shall override the provisions of Section 190 and Sections 460 to 465 of the Code of Criminal Procedure, 1973. Mr Dharmadhikari would argue that even if it is assumed arguendo that the provisions of the Code of Criminal Procedure, 1973 could be invoked, considering that the requirement of sanction is a salutary safeguard provided to the accused in the Unlawful Activities (Prevention) Act, which is a stringent penal enactment schematically different from the ordinary penal law, invalidity or absence of sanction is not an error or omission or defect envisaged under the provisions of the Code of Criminal Procedure, 1973. It is further submitted that if cognizance is taken by the learned Sessions Judge in the absence of valid sanction, the Court is not a Court of competent jurisdiction, and there is no scope for the prosecution to argue that the accused did not raise the objection to the validity of the sanction at the earliest opportunity, or that no prejudice or failure of justice is demonstrated. Mr Dharmadhikari would hasten to submit that as a fact, accused 6 – G. N. Saibaba did assail the validity of the sanction at the earliest opportunity, in the application for bail, and the learned Sessions Judge deferred the consideration on the aspect of the validity of sanction to a later stage of the proceedings. Mr Dharmadhikari would submit that the time period for submitting the report of the authority appointed to make independent review of the evidence collected during the investigation, and according the sanction must be construed as mandatory, and inasmuch as there is gross delay in according sanction to prosecute accused 6 – G. N. Saibaba, the sanction order stands vitiated., The learned Special Public Prosecutor‑Senior Counsel Mr Siddharth Dave prefaced the submissions with a broad overview of the legislative path which the Unlawful Activities (Prevention) Act has travelled. In response to the submission of Mr Mandhyan that the sanction order dated 15‑02‑2014 Exhibit 17 is vitiated due to non‑application of mind, Mr Dave would, after inviting our attention to the cross‑examination of the sanctioning authority and the investigating officer (PW 11), submit that the defence theory that the CFSL report and the call records were not available for the perusal of the sanctioning authority is speculative, and that there is no cross‑examination, much less effective cross‑examination, either of the sanctioning authority or the investigating officer, on the said aspect. Mr Dave would submit that the sanction order is self‑explanatory and the material on the basis of which the sanctioning authority arrived at the satisfaction that a case is made out for according sanction is spelt out with sufficient particularity in the sanction order. It is submitted that although extraneous evidence was not required to demonstrate that the relevant material was placed before the sanctioning authority and that the sanctioning authority accorded the sanction after due consideration of the material on record and application of mind, the prosecution nonetheless examined the sanctioning authority, who withstood the test of cross‑examination. Rebutting the submission that the report of the authority appointed to make independent review of the evidence collected during the course of investigation is laconic and falls foul of the legislative intent that the report must be formulated as would aid and assist the sanctioning authority, Mr Dave submits that subsection (2) of Section 45 of the Unlawful Activities (Prevention) Act does not contemplate any specific format in which the recommendation of the authority is to be worded. It is submitted that the recommendation is not justiciable and is premised on the subjective satisfaction of the appointed authority. It is further submitted that in the light of credible evidence that the authority appointed to make the review was provided the relevant material in entirety, the form in which the authority conveyed the recommendation pales into insignificance. Mr Dave would submit that the sanctioning authority having accorded sanction, the exercise of the power which is not fettered by the recommendation of the authority entrusted with the task of making the review cannot be assailed on the specious reasoning that the report of the reviewing authority is not elaborate or that summary of the analysis of the evaluation of evidence is not discernible. Mr Dave fairly does not join issues with the submission that as on the date of the learned Sessions Judge taking cognizance of the offence, no sanction to prosecute accused 6 – G. N. Saibaba was in existence. Mr Dave would submit that qua accused 6 – G. N. Saibaba, the trial did not proceed in the absence of sanction, inasmuch as the trial proceeded on the basis of sanction obtained at a belated stage. Mr Dave would submit that although sanction to prosecute accused 6 – G. N. Saibaba was accorded after the learned Sessions Judge took cognizance, framed charge, recorded plea and examined PW 1 – Santosh Bawne, after obtaining the sanction PW 1 – Santosh Bawne was recalled and re‑examined. It is submitted that accused 6 – G. N. Saibaba did not object to the recalling and re‑examination of PW 1 – Santosh Bawne, and it is axiomatic that the belated sanction has not occasioned failure of justice, even according to accused 6 – G. N. Saibaba, and is therefore a curable defect which did not affect the jurisdiction of the Court., Mr Dave heavily relies on the provisions of Section 465 of the Code of Criminal Procedure, 1973 to buttress the submission that a finding or order rendered by a Court of competent jurisdiction is not reversible due to the irregularities unless failure of justice is proved. The extension of the submission is that unless failure of justice has occasioned, no inference of causation of prejudice to the accused can be drawn., Mr Dave would submit that the well‑entrenched judicial view is that the irregularities in the cognizance order would not vitiate the proceedings. It is submitted that the decisions rendered by the Honorable Supreme Court in the context of the provisions of the Terrorist and Disruptive Activities (Prevention) Act are of no avail to the accused in view of the difference between the statutory schemes of the Terrorist and Disruptive Activities (Prevention) Act and the Unlawful Activities (Prevention) Act., The learned Counsel for the appellants and the prosecution have relied on a catena of decisions in support of the submissions canvassed, which decisions we shall consider and analyse at a later stage in the judgment. In the light of the assiduous submissions advanced on the aspect of the validity of the sanction orders, we are confronted with the following questions: (a) Whether in view of the cognizance taken by the learned Sessions Judge qua accused 6 – G. N. Saibaba in the absence of sanction, the subsequent proceedings are rendered void? (b) Whether the sanction order dated 15‑02‑2014 qua accused 1 to 5 is defective? (c) Whether the defects in the sanction order are curable?, Before we venture to consider the issues which arise for determination on the aspect of the validity of the sanction, it would be apposite to have an overview of the genesis of, and the legislative interventions in, the Unlawful Activities (Prevention) Act. Pursuant to the recommendations of the Committee on National Integration and Regionalism which was set up by the National Integration Council to examine the aspect of placing reasonable restrictions on certain freedoms in the interests of sovereignty and integrity of India, the Parliament enacted the Constitution (Sixteenth Amendment) Act, 1963 empowering imposition of reasonable restrictions in the interests of the sovereignty and integrity of India on the freedom of speech and expression, the right to assemble peaceably and without arms, and the right to form associations or unions. The Unlawful Activities (Prevention) Act was enacted in view, and furtherance of, the constitutional amendment. The Unlawful Activities (Prevention) Bill was introduced in the Parliament with the avowed object to make powers available for dealing with activities directed against the integrity and sovereignty of India. The Bill received the assent of the President on 30‑12‑1967 and was enacted as the Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967)., The Unlawful Activities (Prevention) Act as originally enacted did not cover within its sweep terrorist activities. The anti‑terrorism legislation was the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). TADA, which was enacted in the backdrop of the Punjab insurgency, received the assent of the President on 23‑05‑1985. TADA had a sunset provision for lapsing after two years and as such lapsed on 24‑05‑1987. Since the Parliament was not in session, an Ordinance was promulgated to keep alive the provisions and the Ordinance was replaced with the TADA, 1987. The re‑enacted Act also had a sunset provision of two years and was renewed in 1989, 1991 and 1993 and allowed to lapse in 1995. TADA was replaced by the Prevention of Terrorism Act, 2002 (POTA) which held the legislative field till its repeal by the Prevention of Terrorism (Repeal) Act, 2004 and the expansion of the ambit of the Unlawful Activities (Prevention) Act by Act 29 of 2004., The TADA and POTA were perceived as legislation bordering on the draconian. Cutting across political and ideological lines, the provisions of the aforesaid statutes faced severe criticism as susceptible to egregious misuse and as a weapon of stifling the voice of dissent., The Central Government was alive and sensitive to the criticism against the misuse of the provisions of the POTA. The concerns of the Central Government culminated in the repeal of POTA and the legislative intervention in the Unlawful Activities (Prevention) Act. The statement of objects and reasons of the Amendment Act 29 of 2004 echoes the concerns of the Central Government as regards the misuse of the provisions of the POTA, and at the same time underscores its resolve not to compromise in the fight against terrorism which poses a serious threat to national security., Act 29 of 2004 amended the preamble of the Unlawful Activities (Prevention) Act to include within its dragnet terrorist activities and several provisions of the POTA were incorporated. The Unlawful Activities (Prevention) Act underwent extensive amendment by the Amending Act 35 of 2008. The statement of objects and reasons notes the significant developments, at the national and international level, since the amendment of the Unlawful Activities (Prevention) Act, 1967 in 2004. The objects and reasons of the Amendment Act 35 of 2008 emphasize that further provisions are required to be made in the law to cover various facets of terrorism and terrorist activities, including financing of terrorism and to subserve the aim of strengthening the arrangements for speedy investigation, prosecution and trial of cases. Significantly, the need to eschew possible misuse of the provisions is also underscored., The Unlawful Activities (Prevention) Act was further amended by Act 3 of 2013 pursuant to the recommendations of the Inter‑Ministerial Group which was constituted to recommend necessary amendments to the Act, inter alia, in view of the commitments made by India at the time of admission to the Financial Action Task Force, which is an inter‑governmental organisation set up to devise policies to combat money laundering and terror financing. The relatively recent legislative intervention is the Act 28 of 2019 which seeks to provide for more effective prevention of certain unlawful activities of individuals and associations. Act 28 of 2019 inter alia empowers the Director General, National Investigating Agency to grant approval for seizure or attachment of property when the case is investigated by the said agency and the Central Government to add to, or remove from, the Fourth Schedule the name of an individual terrorist and an officer of the rank of Inspector of the National Investigating Agency to investigate the offices under Chapter IV and Chapter VI. Of extreme significance, in our considered view, is the amendment to the provisions of Section 45 of the Unlawful Activities (Prevention) Act which is brought about by Act 35 of 2008., Section 45, as the provision now stands, reads thus: 45. Cognizance of offences (1) No Court shall take cognizance of any offence (i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf; (ii) under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and if such offence is committed against the Government of a foreign country without the previous sanction of the Central Government. (2) Sanction for prosecution under sub‑section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government., Sub‑section (1) is a fetter on the power of the Court to take cognizance of any offence under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf and of any offence under Chapter IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and if such offence is committed against the Government of a foreign country without the previous sanction of the Central Government. Sub‑section (2) which is inserted by Act 35 of 2008 mandates that sanction for prosecution under sub‑section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government., There is no gainsaying, and the principle is well recognised and deeply entrenched, that sanction is not a ritualistic formality nor an acrimonious exercise. Sanction is a solemn and sacrosanct act which lifts the bar and empowers the Court to take cognizance of offence. Sanction serves the salutary object of providing safeguard to the accused from unwarranted prosecution and the agony and trauma of trial, and in the context of the stringent provisions of the Unlawful Activities (Prevention) Act, is an integral facet of due process of law., Before we further consider the significance of the legislative intervention in the Unlawful Activities (Prevention) Act, the procedural safeguards in the Terrorist and Disruptive Activities (Prevention) Act, inserted by the Amending Act of 1993 and the pari materia provision of the Prevention of Terrorism Act may be noted. Section 20‑A of the Terrorist and Disruptive Activities (Prevention) Act, which was introduced by Act 43 of 1993 provided thus: 20‑A. Cognizance of offence. (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police. (2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector General of Police, or as the case may be, the Commissioner of Police., Section 20‑A(1) provided that no information about the commission of an offence under the Terrorist and Disruptive Activities (Prevention) Act shall be recorded by the police without the prior approval of the District Superintendent of Police. Sub‑section (2) precluded the Court from taking cognizance of any offence under the Terrorist and Disruptive Activities (Prevention) Act without the previous sanction of the Inspector‑General of Police or, as the case may be, the Commissioner of Police. The protective safeguards operate at two distinct stages and the plain language of Section 20‑A of the Terrorist and Disruptive Activities (Prevention) Act would suggest that strict compliance with, and adherence to, the former and the latter safeguard were sine qua non of valid prosecution., Section 50 of the Prevention of Terrorism Act also provided that no Court shall take cognizance of any offence under this Act without the previous sanction of the Central Government or, as the case may be, the State Government. Significantly, while the Terrorist and Disruptive Activities (Prevention) Act entrusted police officers the power of according approval to record information of offence and sanction for prosecution, the Prevention of Terrorism Act empowered the Central Government or, as the case may be, the State Government to consider according sanction., Act 35 of 2008, which inserted sub‑section (2) mandates that the Central Government or the State Government shall accord sanction only after considering the report of the authority appointed to make an independent review of the evidence gathered in the course of investigation, and to make a recommendation to the Central Government or, as the case may be, the State Government. The appointment of an authority enjoined with the responsibility of making an independent review of the evidence gathered in the course of investigation and making recommendation ensures an additional safeguard or filter and the legislative intent is to ensure that the sanctioning authority is aided, assisted and guided by the independent review of the evidence gathered in the course of investigation., The Oxford dictionary defines report as an account given of a particular matter, especially in the form of an official document, after thorough investigation or consideration by an appointed person or body. The mandate of sub‑section (2) is that the authority shall make an independent review of the evidence gathered in the course of investigation and then submit the report to the Central Government or the State Government with its recommendation., Considering the legislative intent underlying the introduction of sub‑section (2) on the statute book, the expression report cannot be equated with communication. Implicit in the duty to make an independent review of the evidence gathered in the investigation and then make a recommendation is the obligation to place on record the raison d’être underlying the recommendation. While we are not suggesting, even for a moment, that the report of the appointed authority must be elaborate or akin to a judicial order or judgment, the report must be self‑explanatory and must incorporate the summary of the review of the evidence gathered as would assist and aid the sanctioning authority., The then Home Minister Mr P. Chidambaram, who moved the Bill to amend the Act, spoke thus in the Lok Sabha: “One important safeguard I am making is that today the Executive registers the case, the Executive arm investigates the case and the Executive arm grants sanction for prosecution. So, what we are saying is let the Executive arm register the case, let the Executive arm investigate the case, but before you sanction prosecution, the evidence gathered in the investigation must be reviewed by an independent authority. The independent authority must make its recommendation and only acting on that recommendation you can sanction prosecution. Therefore, there is a clean sanction filter which will filter out any case where the evidence does not warrant the prosecution of the accused.” These are the broad features of this Bill. As I said in the opening, we have tried to balance various points of view. I respect every point of view. But I cannot accept one and reject another at this stage. We have taken into account views expressed by human rights activists, lawyers, jurists, etc. We have also taken into account views expressed by people who want our laws to be strengthened to fight terror. The proceedings of the Rajya Sabha dated 18‑12‑2009 record the articulation of Mr P. Chidambaram thus: “The other interest is that human rights are fundamental and basic. A fair procedure, and to be tried fairly, is part of personal liberty; and no man’s personal liberty can be taken away except according to the procedure established by law. It is simply not a mechanical procedure, but substantive due process.” Therefore, balancing the interests by strong anti‑terror laws and the need to protect the fundamental human rights of persons, including the accused, we have drafted this Bill and I am sure the Members who are going to speak will support it. The Minister, Mr Ashwani Kumar, will intervene, and the Minister, Mr Kapil Sibal will also intervene if necessary. They will explain the provisions of the Bill. Broadly, we are imposing restrictions on the power to grant bail. We are introducing a provision of drawing a rebuttable presumption in certain cases and requiring that before prosecution is actually sanctioned, the executive Government must take the recommendation of an independent authority who will review their writs. So, we are strengthening the law, but at the same time providing the safeguards. Before sanction is granted under Section 45(1) we are interposing an independent authority which will review the entire evidence gathered in the investigation and then make a recommendation whether this is a fit case of prosecution. I think this is a very salutary safeguard., The admissibility of Parliamentary debates as extrinsic aid to the interpretation of statutes is considered in a catena of decisions. Subscribing to the view which then prevailed in England, in Bombay Company Ltd., the Honorable Supreme Court observes: “It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes see Administrator‑General of Bengal v. Prem Nath Mallick 22nd App. 107 at p. 118. The reason behind the rule was explained by one of us in Gopalan v. State of Madras, 1950 ‘A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord,’ or, as it is more tersely put in an American case ‘Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other.’”
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It would seem that the rule is adopted in Canada and Australia – see Craies on Statute Law, 5th Edition, page 122. The English view which negated the admissibility of Parliament debates as an extrinsic aid for construction of a statute, in due course, gave way to the school of thought that a limited use may be made of parliamentary history in construing a statute (Pepper (Inspector of Taxes)). The House of Lords, however, cautioned that even the limited use of parliamentary debates shall be permissible if the statement is of the Minister or other promoter of the Bill. Noticing the decision of the House of Lords in Pepper (Inspector of Taxes), the Supreme Court of India observes in P. V. Narsimha Rao that the statement of the Minister who had moved the Bill can be looked at to ascertain the mischief sought to be remedied and the object and purpose for which the legislation is enacted, albeit such statement cannot be considered for interpreting the provisions of the enactment., In M/s. Surana Steels Private Limited, the Supreme Court of India referred to the speech of the Finance Minister in Parliament explaining the rationale behind the introduction of Section 115‑J in the Income Tax Act, 1961. In our considered view, while the use of parliamentary debates as an extrinsic aid for the construction of a statute may be a grey area, on the authority of a series of decisions of the Supreme Court of India, we are entitled to refer to and rely upon the speech in the Rajya Sabha and Lok Sabha made by the Minister Mr. P. Chidambaram who moved the Bill, to understand and appreciate the legislative object., We have extracted the statement of objects and reasons of the Amendment Act 35 of 2008, from which the legislative intent to minimize, if not obliterate, the possible misuse of the provisions is discernible. Chief Justice of India Patanjali Sastri, speaking for the majority in Ashwini Kumar Ghose, observes: As regards the propriety of the reference to the Statement of Objects and Reasons, it must be remembered that it seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. But those objects and reasons may or may not correspond to the objective which the majority of members had in view when they passed it into law. The Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have remained the same until the Bill emerges as an Act of the Legislature, because they do not form part of the Bill and are not voted upon by members. We, therefore, consider that the Statement of Objects and Reasons appended to the Bill should be ruled out as an aid to the construction of the statute., Referring to the Ashwini Kumar Ghose case, Justice S. R. Das articulated in Subodh Gopal Bose: I am not therefore referring to it for the purpose of construing any part of the Act or ascertaining the meaning of any word used in the Act, but I am referring to it only for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce it and the extent and urgency of the evil which he sought to remedy., In Bhaiji, the Supreme Court of India summarised the use of the Statement of Objects and Reasons in the process of construction of statutes as follows: Reference to the Statement of Objects and Reasons is permissible for understanding the background, the antecedent state of affairs, and the surrounding circumstances in relation to the statute and the evil which the statute sought to remedy. The weight of judicial authority leans in favour of the view that the Statement of Objects and Reasons cannot be utilised for the purpose of restricting and controlling the plain meaning of the language employed by the legislature in drafting a statute and excluding from its operation transactions which it plainly covers., While many authorities exist, the dominant judicial view appears to be that the Statement of Objects and Reasons can be referred to for understanding the antecedent state of affairs and the evil which the statute sought to remedy, as expressed in Ashwini Kumar Ghose; State of West Bengal v. Subodh Gopal Bose and others; and Bhaiji v. Sub‑Divisional Officer, Tandla., Even apart from the parliamentary history, the plain language of the provision admits of no other view than that sub‑section (2) of Section 45 of the Unlawful Activities (Prevention) Act is a legislatively provided additional safeguard, and while the sanctioning authority is not bound by the recommendatory report of the authority which independently reviews the evidence, the authority must formulate the report so as to aid and assist the sanctioning authority., The laconic report of the Director of Prosecution (Exhibit 358) reads: Report regarding review of evidence gathered during investigation in Crime Report No. 3017 of 2013, registered at Police Station Aheri, District Gadchiroli. The report lists copies of the Panchanama, statements of witnesses and other related documents. It is clear that there is prima facie evidence against the arrested and non‑arrested accused persons in Police Station Aheri, Gadchiroli Crime Report No. 3017/2013, namely Mahesh K. Tiraki, Pandu P. Narote, Hem K. Mishra, Prashant Rahi, Prasad (also known as Vijay N. Tirki), and G. N. Saibaba under sections 13, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act. The Director of Prosecution therefore recommends accord of sanction in this case. This report concerns offences under the Unlawful Activities (Prevention) Act, 1967. Vidya Gundecha, In‑charge Director, Directorate of Prosecution, Maharashtra State, Mumbai., The material considered by the authority is blurred. The authority claims to have perused copies of the First Information Report, Panchanama, statements of witnesses and other related documents (image documents) and then concludes that there is prima facie evidence against the arrested and non‑arrested accused under sections 13, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act. The purported report contains the conclusion without reasoning. The appointed authority did not have, and it is not in dispute, the report of the Central Forensic Science Laboratory of the digital data allegedly retrieved from the electronic gadgets. The report lacks a summary of the analysis of the evidence collected during the investigation and therefore renders no assistance to the sanctioning authority, much less the assistance expected from the appointed authority who is a Senior Judicial Officer. In our considered view, the purported report of the appointed authority is nothing less and nothing more than a communication conveying the conclusion in the form of a recommendation., The provisions of sub‑section (2) of Section 45 of the Unlawful Activities (Prevention) Act, to the extent that sanction shall be granted by the sanctioning authority only after considering the report of the appointed authority, are clearly mandatory. The expression 'only after considering the report of such authority' mandates that the sanctioning authority must give due consideration to the report, and to enable the sanctioning authority to be aided and assisted, the report of the authority which makes an independent review must, at a minimum, incorporate a summary of the evaluation or review of the evidence gathered in the course of investigation. Any other view would water down, if not eviscerate, the legislative intent of providing an additional filter or safeguard to the accused., Our attention is invited to the decision of the High Court of Orissa at Cuttack in Subhashree Das and the decision of the High Court of Madras in Vaiko. The factual matrix in those decisions is that no authority to make an independent review of the evidence collected during the investigation was appointed, and sanction was accorded under Section 45 of the Unlawful Activities (Prevention) Act without the aid and assistance of the recommendation of such authority. The High Court of Orissa extensively referred to the speech of the Home Minister who introduced the Bill and held that, since the sanction for prosecution was not based upon review by a validly appointed authority to independently review evidence obtained in the course of investigation, no cognizance of the offence could have been taken. The High Court of Madras held that only on the basis of the report of the authority appointed to review the evidence obtained is the State Government or the Central Government empowered to grant sanction., In our view, a laconic communication conveying only the recommendation without a summary of analysis of the review of the evidentiary material is not a report that the legislature intended the appointed authority to submit to the sanctioning authority, and it stands on the same footing as the absence of a report., The legislative imperative is that sanction for prosecution shall be given only after considering the report of the appointed authority, which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation. We have noticed that the report of the appointed authority renders no aid or assistance to the sanctioning authority, being devoid of reasons or a brief summary of the analysis of the review of the evidence gathered. Mr. Siddharth Dave is correct in submitting that the statute does not envisage that the report of the appointed authority be in any particular format. We emphasize not the form but the substance. It is not even the case of the prosecution that, after receiving the communication from the authority appointed to make the review, the sanctioning authority interacted with the appointed authority in quest of aid and assistance, if not guidance., The sanctioning authority asserts that the sanction was given after considering the report of the appointed authority. The term 'consider' postulates the application of mind to all relevant aspects of the matter and connotes that the thought process must be discernible. In the absence of any summary of the review or other material in the report that may disclose the rationale underlying the recommendation, we unhesitatingly hold that the sanctioning authority paid lip service to the legislative mandate and that the report of the appointed authority was sought and unfortunately given as a ritualistic formality. The transgression of the legislative imperative renders the sanction order dated 15‑02‑2014 void in law., We are not impressed with the submission of Mr. Pradeep Mandhyan that the relevant facts and material were not placed before the sanctioning authority and that non‑application of mind is evident on the face of the sanction order, and that the evidence of the sanctioning authority is of no assistance to the prosecution as extraneous evidence. We have scrutinised the sanction order, from which it is discernible that the broad facts constituting the offence are set out. The well‑entrenched position of law is that ideally the sanction order must be self‑explanatory. The relevant facts and circumstances on the basis of which sanction is accorded must ordinarily appear on the face of the sanction order. Extraneous evidence may be adduced to establish that the relevant facts and evidentiary material were considered by the sanctioning authority., Mr. Pradeep Mandhyan would submit that the assertion of the sanctioning authority that he duly considered the Central Forensic Science Laboratory report of the forensic analysis of the digital material and gadgets seized during the investigation is contradicted by the fact that the CFSL report was collected from the forensic laboratory by PW‑7 Apeksha Ramteke on 15‑02‑2014, which is the date on which the sanction was accorded. It is further submitted that the deposition of the sanctioning authority that he considered the CDR while granting sanction is indicative of non‑application of mind for two reasons: (1) the CDR was received by the investigating agency, and that too not in entirety, on the day the sanction was accorded; and (2) the sanctioning authority could not have derived any advantage from the CDR to arrive at the satisfaction he did. Again, in the absence of effective cross‑examination, we are not inclined to tread on the slippery slope of surmises, conjectures and speculations. The inference that relevant material was not considered cannot be drawn lightly. Having so observed, and as recorded above, the sanction given is nonetheless invalid in view of the infraction of the legislative safeguard requiring consideration of the report of the appointed authority., The other issue is whether the period prescribed for making the recommendation and the corresponding sanction is mandatory or directory. Sub‑section (2) of Section 45 of the Unlawful Activities (Prevention) Act provides that sanction for prosecution under sub‑section (1) shall be given within such time as may be prescribed, and the authority appointed to make an independent review of the evidence gathered in the course of investigation shall make the recommendation within such time as may be prescribed., The period within which the recommendation shall be made by the appointed authority and the sanction shall be accorded is prescribed under the 2008 Rules. Rule 3 provides: Time limit for making a recommendation by the Authority – The Authority shall, under sub‑section (2) of Section 45 of the Act, make its report containing the recommendations to the Central Government (or, as the case may be, the State Government) within seven working days of the receipt of the evidence gathered by the investigating officer under the Code. Rule 4 provides: Time limit for sanction of prosecution – The Central Government (or, as the case may be, the State Government) shall, under sub‑section (2) of Section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority. The pivotal question is whether the use of the word 'shall' in sub‑section (2) of Section 45 of the Unlawful Activities (Prevention) Act and Rules 3 and 4 of the 2008 Rules admits of no construction other than that the period prescribed is mandatory., We are conscious of the view of the Kerala High Court in Roopesh that the period prescribed in Rules 3 and 4 of the 2008 Rules is mandatory. We have also noted the contrary view of the Punjab and Haryana High Court. We are further informed that the Special Leave Petition filed by the State of Kerala has been withdrawn and the question of law remains open. While we have no hesitation in holding that the requirement of independent evaluation of the evidence on record by the appointed authority and submission of a report, as opposed to a mere communication conveying recommendations, is mandatory, with due respect to the view of the Kerala High Court in Roopesh, we are not inclined to hold that the time limit prescribed for making the recommendation or granting sanction is mandatory. The prima facie inference that the use of the word 'shall' raises a presumption of mandatory compliance may be rebutted by other considerations, notably the consequences that may flow from such a construction. We are not inclined to construe the time frame as inexorable, whose breach may have the unintended consequence of nipping the prosecution in the bud. We are not suggesting that the time period can be violated with impunity. Although directory, the time frame must be substantially complied with. The effect of gross delay in submitting the recommendatory report and granting sanction may have to be examined on a case‑by‑case basis, and the principles underlying Sections 460 and 465 of the Code of Criminal Procedure, 1973 may come into play., Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 stipulates that the Public Analyst shall, within a period of 45 days, deliver to the local health authority a report of the result of his analysis. Interpreting this provision, the Supreme Court of India in T. V. Usman held that the time provision must be construed as directory unless the delay has prejudiced the right of the accused to have the samples of food analysed by the Central Food Laboratory. The Supreme Court quoted with approval a passage in Craies on Statute Law: When a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done are called directory. The Court further explained that although the expression 'shall' is used in Rule 7(3), the rule deals with stages prior to launching prosecution and by the date of receipt of the Public Analyst’s report the case is not yet instituted in court. The authority must decide, based on the report, whether to institute prosecution. No time‑limit is prescribed for instituting prosecution, and therefore there is no valid reason to treat the 45‑day period as mandatory. This does not mean the Public Analyst may ignore the time‑limit; he must, in all cases, try to comply. If there is some delay, the report is not automatically void, nor does a slight delay render prosecution impossible. Only an inordinate delay that deprives the accused of the right conferred under Section 13(2) of the Food Adulteration Act—allowing the accused to apply to the court within ten days of receiving the Public Analyst’s report to have the samples analysed in the Central Food Laboratory—may constitute prejudice. Mere delay, without such prejudice, is not per se fatal to the prosecution., In our considered view, the use of the word 'shall' and the prescription of a time frame is intended to convey a sense of urgency to the authorities entrusted with discharging statutory duties. While the period prescribed is not mandatory in the sense that its infraction ipso facto vitiates the sanction, and while substantial compliance is ordinarily required, the accused must demonstrate some prejudice or a failure of justice caused by the failure to adhere to the statutorily prescribed time frame., In the factual matrix, we are not inclined to consider the challenge to the sanction order on the basis of the prescribed time frame, since the accused did not contest, during the trial, the sanction order on the ground of infraction of the statutorily prescribed period for making the recommendation and granting sanction., The sanction accorded to prosecute accused 1 to accused 5 is held invalid in view of the egregious defects, including the breach of the mandatory provisions of sub‑section (2) of Section 45 of the Unlawful Activities (Prevention) Act. We have further found that the issue of validity of the cognizance concerning accused 6, G. N. Saibaba, poses no conundrum since cognizance was taken by the learned Sessions Judge, charges were framed and the first prosecution witness examined, in the absence of sanction. The pivotal issue for consideration is whether the invalidity or absence of sanction strikes at the root of the jurisdiction of the trial Court and vitiates the trial in its entirety, or, as the learned Special Public Prosecutor Mr. Siddharth Dave would strenuously urge, the consequence of the finding of invalidity or absence of sanction is not inexorably an acquittal or discharge and the defect is curable., The preponderant school of thought is that invalidity or absence of sanction strikes at the very root of the jurisdiction of the Court, if the Court is precluded from taking cognizance without the prior sanction envisaged under the statute. The jurisprudential logic is that, in the absence of a valid sanction, the Court is not empowered to take cognizance of the offence, and the proceedings would be void and amount to no proceedings in the eyes of law., Considering Section 23 of the Cotton Cloth and Yarn (Control) Order, 1943, which provided that no prosecution for contravention of any provision of the Order shall be instituted without the prior sanction of the Provincial Government, the Privy Council, speaking through Sir John Beaumont, held that granting of sanction confers jurisdiction on the Court to try the case, and if the sanction is defective or invalid, the defect in the jurisdiction of the Court can never be cured under Section 537 of the Code of Criminal Procedure, 1898. The relevant observations in Gokulchand Dwarkadas Morarka read: It was argued by Mr. Megaw, though not very strenuously, that even if the sanction was defective, the defect could be cured under the provisions of Section 537 of the Code of Criminal Procedure, which provides, insofar as material, that no finding, sentence or order passed by a Court of competent jurisdiction shall be altered or reversed on account of any error, omission or irregularity in any proceedings before or during the trial, unless such error, omission or irregularity has, in fact, occasioned a failure of justice. It was not disputed that if the sanction was invalid the trial Court was not a Court of competent jurisdiction, but Mr. Megaw contended that there was a sanction, and that the failure of the Crown to prove the facts on which the sanction was granted amounted to no more than an irregularity. Their Lordships could not accept this view. For the reasons expressed, the sanction given was not the sanction required by Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, and therefore was not a valid sanction. A defect in the jurisdiction of the Court can never be cured under Section 537., In Baijnath, the three‑judge Bench of the Supreme Court of India, while differing on certain aspects, unanimously held that a sanction obtained under Section 197 of the Code of Criminal Procedure, 1898 after cognizance of the offence is of no avail to the prosecution and entails acquittal of the accused. The learned Assistant Special Public Prosecutor Mr. H. S. Chitaley distinguished Baijnath on the premise that the decision was rendered under the Code of Criminal Procedure, 1898, which did not contain a provision pari materia with Section 465 of the Code of Criminal Procedure, 1973. The distinction is without difference. Section 529 of Chapter XLV of the Code of Criminal Procedure, 1898 deals with irregularities which do not vitiate the proceedings; this provision is pari materia with Section 460 of the Code of Criminal Procedure, 1973. Sub‑section (e) of Section 529 of the 1898 Code and sub‑section (e) of Section 460 of the 1973 Code provide that if cognizance of an offence under Section 190 sub‑section (1) clause (a) or clause (b) is taken by any magistrate not empowered, the irregularity shall not vitiate the proceedings. The cognizance of an offence under clause (c) of sub‑section (1) of Section 190 of the 1898 Code is an irregularity which vitiates the proceedings if the magistrate is not empowered by law; this is provided in Section 530(k) of the 1898 Code and Section 461(k) of the 1973 Code. Section 537 of the Code of Criminal Procedure, 1898, as considered in Gokulchand Dwarkadas Morarka, provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be altered or reversed on account of any error, omission or irregularity in any proceedings before or during the trial, unless such error, omission or irregularity has, in fact, occasioned a failure of justice., While Mr. H. S. Chitaley is correct in submitting that Section 465 of the Code of Criminal Procedure, 1973 specifically refers to error or irregularity in any sanction for prosecution and provides that failure of justice must be demonstrated as a sine qua non for reversing a finding or sentence rendered by a Court of competent jurisdiction, in our considered view, an egregious defect in sanction or absence of sanction cannot be equated with any error, omission or irregularity in sanction. The Court is precluded from taking cognizance. The statutory bar is not lifted, and therefore the cognizance and subsequent proceedings cannot be clothed with the sanctity of a finding, sentence or order rendered by a Court of competent jurisdiction., Section 20‑A(2) of the Terrorist and Disruptive Activities (Prevention) Act (TADA) was considered in Rambhai Nathabhai Gadhvi in an appeal from the conviction recorded by the Designated Court. The Supreme Court of India observed: Taking cognizance is the act which the Designated Court has to perform and granting sanction is an act which the sanctioning authority has to perform. The latter is a condition precedent for the former. The sanction contemplated in the subsection is the permission to prosecute a particular person for the offence or offences under TADA. It must be borne in mind that sanction is not granted to the Designated Court to take cognizance of the offence, but it is granted to the prosecuting agency to approach the court concerned, enabling it to take cognizance of the offence and to proceed to trial against the persons named in the report. Thus a valid sanction is sine qua non for enabling the prosecuting agency to approach the court so that the court may take cognizance of the offence under TADA as disclosed in the report. The corollary is that, if there was no valid sanction, the Designated Court has no jurisdiction to try a case against any person mentioned in the report, as the court is forbidden from taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction. We note that the Constitution Bench decision in Prakash Kumar overrules Rambhai Nathabhai Gadhvi to the limited extent that when trial for an offence under TADA could not have been held by the Designated Court for want of valid sanction envisaged in Section 20‑A(2) of TADA, no valid trial could have been held by that Court for any offence under the Arms Act either, and that a Designated Court has no independent power to try any other offence., We have noted that Section 20‑A of the Terrorist and Disruptive Activities (Prevention) Act incorporated procedural safeguards at two distinct stages.
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Subsection (1) of Section 20-A of the Terrorist and Disruptive Activities (Prevention) Act (TADA) provides that, notwithstanding anything contained in the Code of Criminal Procedure, no information about the commission of an offence under TADA shall be recorded by the police without the prior approval of the District Superintendent of Police. Sub‑section (2) of Section 20‑A of TADA fetters the power of the Court to take cognizance of any offence under TADA without the previous sanction of the Inspector‑General of Police, or, as the case may be, the Commissioner of Police. In Ashraf Jam Alias Babu Munnekhan Pathan and another v. State of Gujarat, the Hon'ble Supreme Court of India considered the effect of non‑compliance with the provisions of sub‑section (1) of Section 20‑A of TADA., The Court emphasized that TADA, as originally enacted, did not contain Section 20‑A; it was inserted only by Section 9 of the Terrorist and Disruptive Activities (Prevention) Amendment Act, 1993 (Act 43 of 1993). From a plain reading of the provision it is evident that no information about the commission of an offence shall be recorded by the police without the prior approval of the District Superintendent of Police. The legislature, by using the negative word in Section 20‑A(1) of TADA, made its intention clear. Because the scheme of TADA is different from that of ordinary criminal statutes, its provisions must be strictly construed. Negative words can rarely be held to be directory; the ordinary grammatical meaning provides the best guide to ascertain legislative intention., The Court further considered the submission advanced by the State that non‑compliance with Section 20‑A(1) of TADA is a curable defect under Section 465 of the Code of Criminal Procedure, 1973. The Hon'ble Supreme Court of India held that the designated Court must follow the procedure prescribed in the Code for trial before a Court of Sessions, but Section 465 of the Code of 1973 is not a panacea for every error, omission or irregularity. The omission to grant prior approval under sub‑section (1) of Section 20‑A of TADA is a defect that goes to the root of the matter and is not curable under Section 465 of the Code of 1973., The Court rejected the State's reliance on Lal Singh v. State of Gujarat, observing that the decision in Lal Singh did not hold that absence of sanction under Section 20‑A(2) is a curable defect. In Lal Singh the question of sanction was not raised before the Designated Court and was first raised before this Court, which was not permitted. The Court noted that Sub‑section (2) makes it clear that when an objection could and should have been raised at an earlier stage and has not been raised, mere error or irregularity in any sanction of prosecution becomes ignorable. Consequently, the Court would not permit the appellants to raise a plea of defect in sanction., The Court held that the grant or absence of approval by the District Superintendent of Police is a mixed question of law and fact, and its validity is questioned by the accused through cross‑examination and arguments. Therefore, it cannot be said that the issue was not raised at the earliest opportunity., The submission that the enunciation in Ashraf Jam should be restricted to sub‑section (1) of Section 20‑A of TADA was rejected. Sub‑sections (1) and (2) of Section 20‑A operate at different and distinct stages. For a successful prosecution, both requirements must be complied with. Sub‑section (1) fetters the power of the police to record information, while sub‑section (2) is an absolute bar on the power and competence of the Court to take cognizance of the offence. Both safeguards are equally sacrosanct, and the invalidity of prior approval under sub‑section (1) vitiates the trial with the same vigor as the invalidity or absence of sanction under sub‑section (2)., The interplay between sub‑sections (1) and (2) of Section 20‑A of TADA was considered. The State argued that because the Commissioner of Police had granted sanction under Section 20‑A(2), the conviction could not be set aside on the ground of absence of approval under Section 20‑A(1) by the Deputy Commissioner. The Court observed that the safeguards provided at different stages are both essential; breach of any safeguard has a bearing on the trial. Hence, the State's contention was rejected., The Court clarified that parity between Section 20‑A(1) and Section 20‑A(2) is judicially recognized in Ganesh Rajaram Dube v. State of Maharashtra and others. The ratio laid down in A. Sathyanarayan, although dealing with Section 20‑A(2), applies with equal force to Section 20‑A(1). In the former, prior approval is required before recording a First Information Report; in the latter, prior sanction is necessary before taking cognizance. Consequently, a conviction under TADA is unwarranted if Section 20‑A(1) is violated, and it would be a jurisprudential incongruity to treat the two provisions differently., The Court quoted Lord Denning, speaking for the Judicial Committee of the Privy Council in Benjamin Leonard MacFoy, approving the view that an act void by law is a nullity and incurably bad. The Hon'ble Supreme Court of India adopted this articulation while holding that non‑compliance with valid prior approval under Section 20‑A(1) of TADA is an inherent defect which is incurable., In Hussaein Ghadially alias M.H.G.A. Shaikh and others v. State of Gujarat, the Court answered the question whether the power to accord prior approval vested in the District Superintendent of Police could be exercised by the Government or a superior officer. The Court held in the negative, emphasizing that permitting any other authority to exercise the power would rewrite the provision and defeat the legislative purpose. Since the provision is couched in negative terms, it is mandatory in nature, and the trial and conviction for offences under TADA stand vitiated., In Anwar Osman Sumbhaniya v. State of Gujarat and others, the Court noted that the learned trial Judge did not frame the issue of validity of prior approval under Section 20‑A(1) or prior sanction under Section 20‑A(2) before taking cognizance. Nevertheless, because the question of prior approval or sanction goes to the root of the matter and is sine qua non for a valid prosecution, the Court held that no fault could be found with the Designated Court for answering the issue at the outset., The Court referred to its earlier decision in Lal Singh, where it had held that a defect in sanction is not curable under Section 465 of the Code of 1973 when the sanction order was the basis on which the Court took cognizance. The objection to defective sanction must be raised at an earlier stage; otherwise, the proceedings remain unaffected. The Court observed that, although the objection was raised later in the bail application of accused 6‑G.N. Saibaba, the trial Judge had noted that the objection would be determined later, and no fault could be attached to the other accused for not raising it earlier., In State of Madhya Pradesh v. Bhooraji and others, the Court examined whether the competence of the Court is unaffected by procedural lapse and whether proceedings can be quashed only on demonstration of failure of justice. The factual matrix involved convictions under Section 302 read with Section 149 of the Indian Penal Code and Section 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The Court held that the absence of a committal order does not render the specified Court incompetent, and that the lack of a committal proceeding does not, by itself, constitute a failure of justice sufficient to quash the trial., In State of Madhya Pradesh v. Virendra Kumar Tripathi, the Court considered the effect of Section 19(3) of the Prevention of Corruption Act, 1988. The Court held that no finding, sentence or order passed by a Special Judge shall be reversed or altered on the ground of an error, omission or irregularity in the sanction required under Section 19(1) unless the Court is satisfied that a failure of justice has in fact been occasioned. The Court found that there was no indication of any failure of justice and therefore upheld the High Court's decision., In Raj Mangal Ram v. State of Bihar and others, the Court examined the interplay between Section 19 of the Prevention of Corruption Act and Section 465 of the Code of 1973. It held that the High Court erred in not answering whether a failure of justice had been occasioned by defects in the sanction. The Court reiterated that the sanction order is not a mere irregularity; it is essential to the jurisdiction of the Court to take cognizance of the offence., In Deepak Khinchi v. State of Rajasthan, the Court dealt with a delayed sanction under Section 7 of the Explosive Substances Act, 1908. The accused were charged with offences under the Indian Penal Code and the Explosive Substances Act, but the consent of the competent authority was not obtained at the time of charge‑sheeting. The Court held that the delay of three years in obtaining the consent did not prejudice the accused, and the prosecution was permitted to proceed after the fresh sanction was produced., In State of Goa v. Babu Thomas, the Court examined the effect of a sanction order that was not issued by a competent authority and was retrospectively dated. The Court held that the sanction order was not a mere irregularity but a fundamental error that invalidated the Special Judge's cognizance of the offence. Consequently, the prosecution could not rely on such a defective sanction, and the conviction was set aside., In State of Bihar v. Raj Mangal Ram and others, the Court considered whether a criminal prosecution ought to be interfered with by the High Court on the ground of defects, omissions or errors in the order granting sanction. The Court observed that unless a failure of justice is demonstrated, the High Court should not quash the proceedings. The Court affirmed that the absence of a valid sanction strikes at the root of the prosecution and cannot be treated as a curable defect.
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In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by the Supreme Court of India in State vs. T. Venkatesh Murthy wherein it has been inter alia observed that: Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The above view also found reiteration in Prakash Singh Badal vs. State of Punjab wherein it was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Prakash Singh Badal it was further held that Section 19(1) of the Prevention of Corruption Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of the Supreme Court of India in R. Venkatkrishnan vs. C. B.I. In fact, a three‑Judge Bench in State of Madhya Pradesh vs. Virender Kumar Tripathi while considering an identical issue, namely, the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, held that in view of Section 19(3) of the Prevention of Corruption Act, interdicting a criminal proceeding mid‑course on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and evidence is led. The contrary view in Babu Thomas was noted and distinguished. Raj Mangal Ram holds that the decision in Babu Thomas has to be necessarily understood in the context of the facts thereof, that the authority itself had admitted the invalidity of the initial sanction by issuing a second sanction with retrospective effect. The further observation is that, even otherwise, the position stands clarified by the larger bench in Virender Kumar Tripathi. The Supreme Court of India noted that the orders of the High Court did not consider the aspect of failure of justice, and a more appropriate stage for arriving at the conclusion that the sanction orders suffer from non‑application of mind would have been only after the recording of evidence on the issue in question., Mr. Siddharth Dave then relies on the decisions in Rattiram and Pradeep S. Wodeyar, which inter alia consider the effect of irregularities in committal proceedings and the cognizance taken by the Sessions Court. Before we delve deeper into the ratio decidendi of the said decisions, it would be apposite to note the provisions of the Code of 1898 dealing with committal proceedings. The Criminal Law Amendment Act, 1955 substituted Section 207 of the Code of 1898 by Sections 207 and 207‑A which read thus:, Section 207. Procedure in inquiries preparatory to commitment. In every inquiry before a magistrate where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the magistrate, ought to be tried by such Court, the magistrate shall, (a) in any proceeding instituted on a police report, follow the procedure specified in Section 207‑A; and (b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter. Section 207‑A. Procedure to be adopted in proceedings instituted on police report. (1) When, in any proceeding instituted on a police report the magistrate receives the report forwarded under section 173, he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date not later than fourteen days from the date of the receipt of the report, unless the magistrate, for reasons to be recorded, fixes any later date. (2) If, at any time before such date, the officer conducting the prosecution applies to the magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so. (3) At the commencement of the inquiry, the magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such document or any of them, he shall cause the same to be so furnished. (4) The magistrate shall then proceed to take the evidence of such persons, if any as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and if the magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also. (5) The accused shall be at liberty to cross‑examine the witnesses examined under sub‑section (4), and in such case, the prosecutor may re‑examine them. (6) When the evidence referred to in sub‑section (4) has been taken and the magistrate has considered all the documents referred to in section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the magistrate that such person should be tried before himself or some other magistrate, in which case he shall proceed accordingly. (7) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged. (8) As soon as such charge has been framed, it shall be read and explained to the accused and a copy thereof shall be given to him free of cost. (9) The accused shall be required at once to give in, orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence on his trial: Provided that the magistrate may, in his discretion, allow the accused to give in his list or any further list of witnesses at a subsequent time; and, where the accused is committed for trial before the High Court, nothing in this sub‑section shall be deemed to preclude the accused from giving, at any time before his trial, to the Clerk of the State a further list of the persons whom he wishes to be summoned to give evidence on such trial. (10) When the accused, on being required to give in a list under sub‑section (9), has declined to do so, or when he has given in such list, the magistrate may make an order committing the accused for trial by the High Court or the Court of Session, as the case may be, and shall also record briefly the reasons for such commitment. (11) When the accused has given in any list of witnesses under sub‑section (9) and has been committed for trial, the magistrate shall summon the witnesses included in the list to appear before the Court to which the accused has been committed: Provided that where the accused has been committed to the High Court, the magistrate may, in his discretion, leave such witnesses to be summoned by the Clerk of the State and such witnesses may be summoned accordingly: Provided also that if the magistrate thinks that any witness is included in the list for the purpose of vexation or delay, or of defeating the ends of justice, the magistrate may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witnesses is material, and if he is not so satisfied, may refuse to summon the witness, recording his reasons for such refusal, or may before summoning him require such sum to be deposited as such magistrate thinks necessary to defray the expense of obtaining the attendance of the witness and all other proper expenses. (12) Witnesses for the prosecution, whose attendance before the Court of Session or High Court is necessary and who appear before the magistrate shall execute before him bonds binding themselves to be in attendance when called upon by the Court of Session or High Court to give evidence. (13) If any witness refuses to attend before the Court of Session or High Court, or execute the bond above directed, the magistrate may detain him in custody until he executes such bond or until his attendance at the Court of Session or High Court is required, when the magistrate shall send him in custody to the Court of Session or High Court as the case may be. (14) When the accused is committed for trial, the magistrate shall issue an order to such person as may be appointed by the State Government in this behalf, notifying the commitment, and stating the offence in the same form as the charge; and shall send the charge, the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session or where the commitment is made to the High Court, to the Clerk of the State or other officer appointed in this behalf by the High Court. (15) When the commitment is made to the High Court and any part of the record is not in English, an English translation of such part shall be forwarded with the record. (16) Until and during the trial, the magistrate shall, subject to the provisions of this Code regarding the taking of bail, commit the accused by warrant to custody., The said provisions envisaged an exhaustive procedure prior to the committal of the case to the Court of Session. In case instituted on a police report, the magistrate was obligated to hold an enquiry, record satisfaction on relevant aspects, take evidence as regards the offences alleged, and was empowered to record evidence of one or more witnesses. The accused was at liberty to cross‑examine the witnesses, and the magistrate was duty bound to consider the documents, if necessary to examine the accused to provide him with the opportunity of explaining incriminating circumstances, and was further empowered to discharge the accused if no case is made out for committal. In contradistinction with the substantial rights vested in the accused under sections 207 and 207‑A of the Code of 1898, the limited role of the magistrate envisaged under the provisions of the Code of 1973 is to inquire and ascertain whether the offence is exclusively triable by the Court of Session. Noticing the vast difference in the statutory schemes under the Code of 1898 and the Code of 1973 as regards committal proceedings, the Supreme Court of India held in Rattiram that it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice due to the non‑compliance of the committal procedure., The principle that after conviction, the accused is obligated to demonstrate failure of justice was invoked in view of the restricted role assigned to the magistrate at the stage of committal under the Code of 1973 and the observations and conclusion in paragraphs 65 and 66 of the decision must be read and understood in that context: We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the Legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the Legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial. Judged from these spectrums and analysed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non‑compliance with Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial, and therefore, the decision rendered in Bhooraji lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused., We may now advert to the factual backdrop of Pradeep S. Wodeyar. The High Court of Karnataka dismissed the petitions seeking quashing criminal proceedings for offences punishable under Sections 409 and 420 read with Section 120‑B of the Indian Penal Code, Sections 21 and 23 read with Sections 4(1) and 4(1)(A) of the Mines and Minerals (Development and Regulation) Act, 1957 and Rule 165 read with Rule 144 of the Karnataka Forest Rules, 1969. One of the submissions canvassed in the appeals assailing the judgment of the High Court was that Section 193 of the Criminal Procedure Code bars the Sessions Court from taking cognizance of any offence as a Court of Original Jurisdiction unless the case is committed by the magistrate, unless such course is permissible by specific statutory provisions. The argument was that neither the Mines and Minerals (Development and Regulation) Act nor the Code empowers the Court of Sessions to take cognizance without an order of committal by the magistrate. It was further submitted that in view of the provisions of Section 22 of the Mines and Minerals (Development and Regulation) Act, the court is precluded from taking cognizance of any offence under the Act or the Rules except upon a written complaint made by the authorized person, and in the absence of such authorization, the order of cognizance flies in the teeth of the provisions of Section 22 of the Act., The Supreme Court of India took an overview of the provisions of the Code of 1973, adverted to the decision in Gangula Ashok and Bhooraji and proceeded to interpret Section 193 of the Criminal Procedure Code. The Court formulated the issue for consideration thus: (i) Whether the principle encompassed in Section 465 of the 1973 Code would be applicable to orders passed at the pre‑trial stage; and (ii) if the answer to (i) is in the affirmative, whether the order taking cognizance would lead to a failure of justice, if not quashed., Significantly, in the context of the heavy reliance placed on the said decisions by Mr. Siddharth Dave, we note at the very outset that the challenge to the order of cognizance on the anvil of the provisions of Section 22 of the Mines and Minerals (Development and Regulation) Act was rejected by the Supreme Court of India, not on the ground that the breach of the said provision is a curable irregularity but in view of the finding recorded that as a fact, the requirement stood complied with since the report was signed by the Sub‑Inspector of Lokayukta Police and the information was given by the Special Investigation Team. Considering the submission that the cognizance of offences could not have been taken in view of Section 193 of the Code of 1973, the conclusion reached was that although the Sessions Court did not have the power to take cognizance of an offence under the Mines and Minerals (Development and Regulation) Act in the absence of committal by the magistrate under Section 209 of the Code of 1973, the order of cognizance is an irregularity, and saved by Section 465 of the Code of 1973. It was emphasized that the cognizance order was challenged two years after the cognizance was taken without explaining the inordinate delay, and in view of the diminished role of the committal court under Section 209 of the Code of 1973 in contradistinction with the role envisaged under the erstwhile Code of 1898, the provisions of Sections 460 and 461 of the Code of 1973 come into play, and no failure of justice is demonstrable., In Dilawar Singh, the submission considered was that since the Court takes cognizance of offence and not of an offender, the High Court committed no error in holding that in exercise of power under Section 319 of the Criminal Procedure Code, Dilawar Singh could have been summoned as co‑accused even in the absence of sanction. The Supreme Court of India observes thus: The contention raised by learned counsel for the respondent that a court takes cognizance of an offence and not of an offender holds good when a magistrate takes cognizance of an offence under Section 190 of the Criminal Procedure Code. The observations made by this Court in Raghubans Dubey v. State of Bihar were also made in that context. The Prevention of Corruption Act is a special statute and as the preamble shows, this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. Therefore, the provisions of Section 19 of the Prevention of Corruption Act will have an overriding effect over the general provisions contained in Section 190 or 319 of the Criminal Procedure Code. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 of the Criminal Procedure Code if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person., In Jamiruddin Ansari, the question which fell for consideration in appeal assailing the decision of the Bench of Three Judges of this Court constituted to resolve two conflicting views of the Division Bench, was whether the Special Court under the provisions of the Maharashtra Control of Organized Crime Act, 1999 could take cognizance of an offence on a private complaint under Section 9(1) of the Act and order investigation. The Three Judges Bench of this Court rendered a split verdict with the majority holding that private complaint filed under Section 9 of the Act was independent of Section 23 and compliance with the provisions of Section 23(2) was not a precondition for the learned Special Judge to take cognizance of an offence under the Act. The Supreme Court of India held that in view of the stringent provisions of the Act, the learned Special Judge is precluded from taking cognizance of offences under the Act even on a private complaint, in the absence of sanction under Section 23(2) of the Act. Section 23 of the Maharashtra Control of Organized Crime Act reads thus: (1) Notwithstanding anything contained in the Code, (a) no information about the commission of an offence of organised crime under this Act shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police; (b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. (2) No Special Court shall take cognizance of any offence under this Act without the prior sanction of the police officer not below the rank of Additional Director General of Police. Overruling the majority view of the Full Bench of this Court, the Supreme Court of India held that in view of the mandate of Section 25 of the Act, the provisions of the said enactment would have an overriding effect over the provisions of the Code of 1973. The Court further emphasized that sanction is an important safeguard in the context of the extremely stringent provisions of the Act. Section 48 of the Unlawful Activities (Prevention) Act is pari materia with Section 25 of the Act and provides that the provisions of the Unlawful Activities (Prevention) Act or any rule or order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Unlawful Activities (Prevention) Act., We are not persuaded to construe or understand Pradeep S. Wodeyar as laying down the proposition that invalidity or absence of sanction, envisaged under the provisions of the erstwhile Terrorist and Disruptive Activities (Prevention) Act or the Protection of Terrorist Attacks (Prevention) Act or Section 45 of the Unlawful Activities (Prevention) Act, would be a curable defect. We are of the considered view that the requirement of sanction, envisaged in stringent penal statutes, and the fetter on the power of the Court to take cognizance, cannot be equated with the bar envisaged under Section 193 of the Code of 1973 and we are fortified in the said view by the schematic distinction succinctly articulated by the Supreme Court of India between the provisions of the erstwhile Code of 1898 and the Code of 1973. We hold, on the authority of the Constitution Bench decision of the Supreme Court of India in Baij Nath Prasad Tripathi, that if cognizance is taken without complying with the requirement of valid sanction, the entire trial shall stand vitiated, and the conviction or acquittal recorded would not be by a court of competent jurisdiction. The Constitution Bench decision in Baij Nath Prasad Tripathi is a complete answer to the strenuous submission of Mr. Siddharth Dave, that the invalidity or absence of sanction is a curable defect, and that the provisions of Sections 460 and 465 of the Code of 1973 come into play, and failure of justice shall have to be demonstrated, inasmuch as the trial is conducted, and judgment of conviction recorded, by a court of competent jurisdiction within the meaning of the aforesaid provision., Baij Nath Prasad Tripathi was convicted for offences punishable under Section 161 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act, 1947. Section 6 of the Prevention of Corruption Act, 1947 precluded the court from taking cognizance of an offence committed by a public servant except with the previous sanction of the appropriate Government. The appellate court held that since the sanction was invalid, the proceedings are null and void. The prosecution obtained fresh sanction, which was assailed on the ground of infringement of the doctrine of double jeopardy enshrined in Article 20(2) of the Constitution of India and Section 403(1) of the Code of 1898. Negating the submission of the accused, the Constitution Bench, drawing support from the decision of the Privy Council in Yusofalli Mulla, the decision of the Federal Court in Basdeo Agarwalla and the decision of the Supreme Court of India in Budha Mal, held that in the absence of valid sanction, the trial court cannot be said to be a court of competent jurisdiction and the trial is null and void; the accused was not tried, in the earlier proceedings, by a court of competent jurisdiction, nor was there any conviction or acquittal in force within the meaning of Section 403(1) of the Code of 1898, as would bar trial for the same offence; Section 529(e) of the Code of 1898 has no bearing in a case where sanction is necessary, and no sanction in accordance with law has been obtained., There is no gainsaying that the Unlawful Activities (Prevention) Act makes a departure from the ordinary criminal law. The time frame within which the investigating agency is obligated to complete the investigation is enlarged. The power of the court to grant bail is to a certain extent fettered by the provisions of sub‑sections (5) and (6) of Section 43‑D of the Act. The presumption under Section 43‑E of the Act, the overriding effect envisaged under Section 48 and the severe punishment which conviction entails render it imperative that the provisions of the Act must be strictly construed, notwithstanding that unlike the Terrorist and Disruptive Activities (Prevention) Act and the Protection of Terrorist Attacks (Prevention) Act the confession to a police officer is not admissible, and to that extent the Act may not be a draconian legislation. Considering the negative words in which Section 45(1) of the Act is couched, the object and rationale underlying the legislative intervention by Amending Act 35 of 2008, we are not persuaded to accept the submission of Mr. Siddharth Dave that an egregious defect in or absence of sanction is a curable defect. We are inclined to hold that every safeguard, however miniscule, legislatively provided to the accused, must be zealously protected. In interpreting the provisions of Section 45 of the Unlawful Activities (Prevention) Act, we deem it safer to be guided by the authoritative enunciation of the Supreme Court of India while considering pari materia provisions of the Terrorist and Disruptive Activities (Prevention) Act.
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The sequel of the discussion supra, is that the accused shall have to be discharged from Crime 3017/2013 for offences punishable under Sections 13, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act read with Section 120-B of the Indian Penal Code. Verily, terrorism poses an ominous threat to national security. Vile and abhorrent acts of terror do evoke collective societal anger and anguish. While the war against terror must be waged by the State with unwavering resolve, and every legitimate weapon in the armoury must be deployed in the fight against terror, a civil democratic society can ill afford sacrificing the procedural safeguards legislatively provided, and which is an integral facet of the due process of law, at the alter of perceived peril to national security. The Siren Song that the end justifies the means, and that the procedural safeguards are subservient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by the voice of Rule of Law. Any aberration shall only be counterproductive, since empirical evidence suggests that departure from the due process of law fosters an ecosystem in which terrorism burgeons and provides fodder to vested interests whose singular agenda is to propagate false narratives., We record our conclusions thus: In view of the findings recorded by us, we hold that the proceedings in Sessions Trials 30/2014 and 130/2015 are null and void in the absence of valid sanction under Section 45(1) of the Unlawful Activities (Prevention) Act, and the common judgment impugned is liable to be set aside, which we do order. We are conscious of the demise of accused Pandu Pora Narote during the pendency of the appeal. We are of the considered view that, in view of the decision of the Supreme Court of India in Ramesan (Dead) through Law Reports Girija v. State of Kerala, AIR 2020 SC 559, which is rendered on the anvil of the provisions of Section 394 of the Code of 1973, appeal preferred by accused Pandu Pora Narote does not abate. The prosecution submitted that if the appeal is decided, not on merits, but only on the point of sanction, we may grant liberty to the prosecution to obtain proper sanction and try the accused. In view of the well‑entrenched position of law, that the rule against double jeopardy has no application if the trial is held vitiated due to invalidity or absence of sanction, we see no reason to dilate any further on the said submission., Accused Vijay Nan Tirki is on bail, his bail bond stands discharged. Accused Mahesh Kariman Tirki, accused Hem Keshavdatta Mishra, accused Prashant Rahi Nrayan Sanglikar and accused G N Saibaba are to be released from custody forthwith, unless their custody is required in any other case. The appellants shall execute bond of Rs.50,000 (Rupees Fifty Thousand) each with surety of like amount, to the satisfaction of the Trial Court, in compliance with the provisions of Section 437-A of the Code of 1973. The appeals are disposed of in the aforesaid terms.
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Bail Application No. 5831 of 2020, Crime No. 1017/2020 of Njarakkal Police Station, Ernakulam (Crime No. 751/2020 of Munambam Police Station). Dated 17 September 2020. Application filed under Section 439 of the Criminal Procedure Code was heard through video conference., Petitioner is the accused in Crime No. 1017/2020 of Njarakkal Police Station. It was initially registered at Munambam Police Station and subsequently transferred to Njarakkal Police Station. The offences alleged against the petitioner are under Sections 370, 376, 376(2)(n), 509, 506 of the Indian Penal Code and Section 6 read with Sections 5, 5(l), 13, 14 and 15 of the Protection of Children from Sexual Offences Act, 2012 and also under Section 66E of the Information Technology Act., The prosecution case is that the petitioner and the victim girl were in love. On 22 December 2018, the accused took her to a resort at Cherai Beach under the pretext of giving her a birthday gift and committed forcible rape. It is also alleged that the petitioner captured nude photographs of the victim and threatened to circulate them on social media if the incident was disclosed. It is alleged that the petitioner committed rape on the victim on about six occasions after that incident by showing the nude photographs. It is also alleged that on 31 July 2020, the petitioner created a fake Facebook account by the name “Rilsila Richus” and posted the pictures of the victim and demanded Rs 1 lakh to delete the photographs., The counsel for the petitioner submitted that the allegation against the petitioner is false. The petitioner has been in custody since 23 August 2020. The alleged incident occurred on 22 December 2018 and the First Information Report was given only on 14 August 2020. The petitioner is now 23 years old and the victim is 19 years old. According to the counsel, they were in love and their parents had fixed their marriage, but the victim later withdrew. The petitioner is ready to marry the victim and is prepared to abide by any conditions if the High Court grants bail., The learned Public Prosecutor opposed the bail application, stating that the petitioner not only committed rape but also took nude photographs of the victim and circulated them on social media, and therefore may not be released on bail at this stage., It is an admitted fact that the petitioner is 23 years old and the victim is 19 years old, and that they were in love. The victim’s First Information Report states that she went with the petitioner on a motorbike on her birthday, was taken to a resort at Cherai Beach, and was raped without her consent. The victim alleges that the petitioner repeated the offence on six occasions, the last being in November 2019, and that he posted her photographs on social media., Considering the special facts and circumstances, if bail is granted, a condition directing the petitioner not to use social media such as Facebook, WhatsApp, Twitter, Instagram etc., until the case is finally concluded is appropriate., Whether a bail court can impose such a condition is a question to be decided. In appropriate cases, in the interest of justice, the High Court can impose any condition it considers necessary. There is no rigid formula; each case is decided separately, and conditions should be reasonable and effective without defeating the bail order., Section 439 of the Criminal Procedure Code gives special powers to the High Court and Sessions Court regarding bail. Section 439(1)(a) allows a High Court or Court of Session to direct that any person accused of an offence and in custody be released on bail and, if the offence is of the nature specified in subsection (3) of Section 437, to impose any condition it considers necessary for the purposes mentioned in that subsection., The offences alleged against the petitioner fall within the purview of Section 437(3) of the Criminal Procedure Code, which deals with bail in cases of non‑bailable offences punishable with imprisonment of seven years or more or offences under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code, or abetment, conspiracy or attempt to commit such offences. Under Section 437(3), the High Court may impose conditions that the accused attend as required, not commit a similar offence, and not make any inducement, threat or promise to any person acquainted with the facts of the case, and may also impose any other conditions it considers necessary in the interest of justice., The offences alleged under the Indian Penal Code in this case are included in Chapter XVI. Therefore, while granting bail under Section 437(3), the High Court may impose, in addition to the statutory conditions, any other conditions it deems necessary, provided they are reasonable. The bail court should pass a speaking order if any other conditions are imposed., The main grievance of the victim is that the petitioner is circulating her photographs on social media and threatening to publish them, also demanding money. In such circumstances, imposing a condition that the accused shall not use social media such as Facebook, WhatsApp, Twitter, Instagram etc., until the investigation in Crime No. 1017/2020 of Njarakkal Police Station is completed is appropriate. The condition will continue until the trial is over. The investigating officer shall inform the victim of this condition and act in accordance with law if any complaint is received., While granting bail, the High Court considered that the petitioner is only 23 years old and is in detention. Moreover, considering the need to follow social distancing norms inside prisons to avert the spread of the novel COVID‑19 pandemic, the Supreme Court in Re: Contagion of COVID‑19 Virus in Prisons (Suo Motu Writ Petition (C) No. 1 of 2020) and a Full Bench of this Court in W.P. (C) No. 9400 of 2020 issued directions for minimizing the number of inmates inside prisons., It is a well‑accepted principle that bail is the rule and jail is the exception. The Supreme Court in *Chidambaram v. Directorate of Enforcement* (2019 (16) SCC 870) observed that the basic jurisprudence relating to bail remains that the grant of bail is the rule and refusal is the exception to ensure the accused has the opportunity of a fair trial., Considering the above jurisprudence and the facts of this case, the bail application is allowed with the following directions: 1. The petitioner shall be released on bail upon executing a bond for Rs 50,000 (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional High Court. 2. The petitioner shall appear before the Investigating Officer for interrogation as and when required, cooperate with the investigation, and not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case. 3. The petitioner shall not leave India without permission of the jurisdictional High Court. 4. The petitioner shall not commit an offence similar to the offence of which he is accused or suspected. 5. The petitioner shall strictly abide by the guidelines issued by the State Government and Central Government with respect to social distancing in the wake of the COVID‑19 pandemic. 6. The petitioner shall not use social media such as Facebook, WhatsApp, Instagram etc., until the investigation in Crime No. 1017/2020 of Njarakkal Police Station is completed. If any final report is filed against the petitioner after investigation and the court takes cognizance, the condition will continue until the trial is over. The investigating officer shall intimate this condition to the victim and take appropriate action if any violation is reported. 7. If any of the above conditions are violated, the jurisdictional High Court may cancel the bail in accordance with law. A copy of this order will be forwarded to the investigating officer.
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Date of Decision: 4.11.2022. Pranjil Batra Petitioner versus Directorate of Enforcement Respondent. Present: Mister Vikram Chaudhri, Senior Advocate, with Mister Sajal Bansal, Miss Hargun Sandhu and Mister Kunal Sharma, Advocates, for the petitioner. Mister Satya Pal Jain, Assistant Solicitor General of India with Mister Shobit Phutela, Advocate, for the respondent, Enforcement Directorate., The petitioner seeks grant of regular bail in respect of a complaint bearing number COMA-2-2021 dated 22.1.2021 under Section 4 read with Section 70 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the Act)., Since the petitioner was neither initially arrayed as an accused in the complaint nor when some First Information Reports were registered in Haryana and Hyderabad pursuant to which some Enforcement Directorate Case Information Reports were registered by the Enforcement Directorate, the sequence leading to arraying of the petitioner as an accused needs to be referred to, which is briefly stated herein-under:, 8 September 2018: First Information Report number 358/2018 dated 8 September 2018 was registered at Police Station Sadar Fatehabad, District Fatehabad, Haryana for offences under the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 against Radhey Shyam and Bansi Lal, Directors of Messrs Future Maker Life Care Private Limited and others. 9 September 2018: First Information Report number 859/2018 dated 9 September 2018 was registered at Police Station Hisar, Haryana under Sections 420, 406 and 506 of the Indian Penal Code, against Radhey Shyam and Bansi Lal, Directors of Messrs Future Maker Life Care Private Limited and others. 31 August 2019: Pursuant to constitution of a Special Investigation Team, the matters were investigated by the Special Investigation Team and charge‑sheet number 2 dated 31 August 2019 was presented in First Information Report number 859 and charge‑sheet number 4 dated 20 November 2019 in First Information Report number 358 was presented., 9 October 2019: During the course of investigation of the aforesaid cases, it transpired that the accused involved were also involved in some other First Information Reports lodged in the State of Telangana, namely First Information Report number 710/2018 dated 30 August 2018, Police Station Kukatpally, Telangana; First Information Report number 643/2018 dated 15 October 2018, Police Station Ramchandrapuram, Cyberabad, Telangana; First Information Report number 541/2018 dated 4 September 2018 at Police Station Chandanagar, Telangana; and First Information Report number 768/2018 dated 14 September 2018, Police Station Mailardpally, Telangana. The Enforcement Directorate, Hyderabad, on the basis of the First Information Report dated 30 August 2018, registered Enforcement Directorate Case Information Report number 10/HYZO dated 20 March 2019 against Radhey Shyam, Bansi Lal, Messrs Future Maker Life Care Private Limited and Messrs Global Marketing Private Limited. Subsequently, the Enforcement Directorate, Hyderabad, on account of First Information Reports registered by Haryana Police and on the basis of the residential and office addresses of the companies, transferred the investigation to the Chandigarh Zonal Office. The Enforcement Directorate Case Information Report was renumbered as Enforcement Directorate Case Information Report/03/CDZO‑II/2019 dated 9 October 2019. Later, the Chandigarh Zonal Office, Enforcement Directorate took cognizance of scheduled offences and initiated investigation by recording Enforcement Directorate Case Information Report/CDZO‑II/02/2021 dated 11 January 2021 at Chandigarh., 22 January 2021: The Enforcement Directorate filed a complaint dated 22 January 2021 (Annexure P‑1) before Special Court, Panchkula against Radhey Shyam, Bansi Lal and others wherein the petitioner was cited as a witness at serial number 23 in the list of witnesses. It may be mentioned that even in First Information Report number 358 and First Information Report number 859 registered in 2018, the petitioner had been associated as a witness only., 10 March 2022: The petitioner was found to be involved and arrested. The statement of the petitioner was recorded on various occasions by the Enforcement Directorate and thereafter, upon finding his direct involvement and that he is a beneficiary of crores of rupees, the petitioner was arrested on 10 March 2022 after recording his statement and produced before the court on 11 March 2022. Since then he has been in custody and is presently confined in jail at Ambala, Haryana., 7 May 2022: A supplementary challan was filed and the petitioner was arrayed as an accused. While the petitioner initially had been cited just as a witness at the time of presentation of complaint against co‑accused Radhey Shyam and Bansi Lal being a software expert, upon finding his direct involvement, a supplementary complaint was filed against him wherein it is specifically alleged that he was part and parcel of the scam and had benefited to the extent of about 53 crores., The learned counsel representing the petitioner, while pressing for grant of bail, submitted that the petitioner had merely been an employee of the company of co‑accused and was handling the software used by the company to maintain its accounts and other business‑related information and was neither a director nor a shareholder in the company. It has been submitted that whatever amount he had received or had been credited in his account was on account of his professional remuneration, being a software expert., It has further been submitted that the Enforcement Directorate is resorting to pick and choose and that out of the 24 accused, 11 were entities and the remaining 13 were individuals and out of the said 13 individuals, 11 were never arrested and have been granted bail whereas the petitioner has been kept behind bars for about eight months. It has been submitted that since trial in its normal course is not likely to conclude in the immediate future, given the fact that as many as 73 prosecution witnesses have been cited, the petitioner cannot be kept behind bars indefinitely., The learned counsel has further submitted that the petitioner weighs 153 kilograms and has various medical issues and is presently having precarious health which is deteriorating by the day and in these circumstances, his further custody could prove fatal to his health and life., Opposing the petition, the learned counsel representing the Enforcement Directorate has submitted that the petitioner has played a pivotal role in the commission of offences inasmuch as he had been managing and handling the software which helped the accused to siphon off an amount of about 3000 crores which had been invested by innocent investors and since even the petitioner had benefited to the tune of 53 crores, his complicity is clearly evident. The learned State counsel has further submitted that the State is fully responsible for providing necessary medical treatment, as may be required, by any under‑trial prisoner and that in fact the same is being provided to the petitioner and he is being taken to hospital as and when required and, as such, the medical condition of the petitioner cannot be made a ground for his release on bail, given the fact that Section 45 of the Prevention of Money Laundering Act imposes stringent conditions for grant of bail., The Special Court, Panchkula has considered rival submissions addressed before it., In the instant case, as per the evidence collected during investigation, the co‑accused Radhey Shyam and Bansi Lal floated a Ponzi multi‑level marketing scheme through their companies Messrs Future Maker Life Care Private Limited, Messrs FMLC Global Marketing Private Limited and Messrs Fair Deal Import & Export Division. The basic scheme of the companies was to allure investors while promising lucrative returns. Upon such investors introducing more people to invest in the company holding out similar representations of hefty benefits, a larger return was promised. The accused persons tried to give their Ponzi scheme a colour of a legitimate direct marketing company by selling membership packages in the form of a kit consisting of a suit length and health and beauty products, etc. However, the said items were of sub‑standard quality and were shown to the products being sold so as to avoid detection by law enforcement agencies of being a company engaged in illegal business. The actual aim was to associate as many members as possible so as to earn maximum commission for all top‑ranking members in the pyramid scheme and, in fact, the accused Radhey Shyam and Bansi Lal, through this Ponzi multi‑level marketing scheme, were able to allure and cheat around 33 lakh gullible persons across India and raised deposits amounting to about 3,000 crores., As per the evidence collected during investigation, including the information retrieved from the petitioner's laptop, a major component of the amounts so collected by Ponzi companies run by Radhey Shyam and Bansi Lal and also through their associates was transferred to various bogus entities or shell companies through bank transfers, RTGS, NEFT transactions, in the guise of business transactions or was withdrawn as cash., Although the petitioner, who claimed that he was merely looking after computer software of the company, had initially been cited as a witness, when the investigating agency laid its hands on evidence to the effect that he and other members of his family had benefited of crores of rupees which could not be justified, his complicity became evident. Upon analysing the bank account number 50200010255233 of Messrs Future Maker Life Care Private Limited maintained with HDFC Bank, Hisar, it was revealed that a substantial amount of 15,37,87,088 rupees was transferred to the bank accounts in the name of relatives of the petitioner namely Poonam Batra wife of Pranjil Batra; Veena Sondhi (mother‑in‑law of Pranjil Batra); Rahul Sondhi (brother‑in‑law of Pranjil Batra); Suman (wife of Rahul Sondhi) and Rudal Prasad (employee of Pranjil Batra). During investigation, the petitioner was found to be maintaining six accounts wherein an amount of 4,71,68,931 rupees was found. The petitioner who was looking after the computer software of the company cannot feign ignorance about the illegal and fraudulent activities of the company which had collected about 3,000 crores out of which the petitioner also benefited of a substantial amount. The details of these transactions were found in the laptop of the petitioner., Though the learned counsel for the petitioner tried to justify his receipts of approximately 53 crores as professional fee, upon query made by the Special Court, Panchkula as regards the income‑tax returns for previous years indicating such huge receipts, no satisfactory information could be furnished. The petitioner apparently had been trying to hoodwink the investigation into believing that he was merely a paid employee of the company being run by Radhey Shyam and Bansi Lal., Section 45 of the Prevention of Money Laundering Act, 2002 imposes stringent conditions in the matter of grant of bail. Section 45 (post amendment in 2018) reads as follows: 'Offences to be cognizable and non‑bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm or is accused either on his own or along with other co‑accused of money‑laundering a sum of less than one crore rupees may be released on bail, if the Special Court so directs. Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. (1‑A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised by the Central Government by a general or special order, and, subject to such conditions as may be prescribed; (2) The limitation on granting of bail specified in sub‑section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. Explanation – For the removal of doubts, it is clarified that the expression “Offences to be cognizable and non‑bailable” shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non‑bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfillment of conditions under section 19 and subject to the conditions enshrined under this section.', Section 45(1) of the Prevention of Money Laundering Act, 2002, as noticed above, imposes twin conditions before bail could be granted to a person accused of having committed an offence punishable under the Act. As per section 45(1), the Public Prosecutor was required to be given an opportunity to oppose the plea for bail and that where the Public Prosecutor opposed such plea, the Court could grant bail only after recording satisfaction that there were reasonable grounds to believe that the person to be released was not guilty of the offence he was accused of and that while on bail he was not likely to commit any offence., It may be mentioned that the constitutional validity of the provisions of section 45 of the Prevention of Money Laundering Act, 2002, imposing the twin conditions for grant of bail, which were also there before amendment of section 45 in 2018, was questioned before the Honourable Supreme Court in Nikesh Tarachand Shah versus Union of India (2018) 11 SCC 1 and the Supreme Court, after holding that the prescribed twin conditions for release on bail were violative of Articles 14 and 21 of the Constitution of India, declared section 45(1) of the Act, to that extent, to be unconstitutional., Subsequently, section 45(1) of the Act was amended with effect from 19 April 2018 whereby the words ‘punishable for a term of imprisonment of more than three years under Part A of the Schedule’ as occurring in section 45(1) before being declared unconstitutional were substituted with the words ‘under this Act’. The validity and interpretation of the amended provisions later came to be examined by the Honourable Supreme Court in Vijay Madanlal Choudhry and others versus Union of India (2022) 10 Scale 577, and the Supreme Court, while upholding the amended provisions of section 45, wherein the twin conditions in the matter of grant of bail were incorporated in the same manner as had been existing before amendment, held as follows: 'We are conscious of the fact that in paragraph 53 of the Nikesh Tarachand Shah case, the Court noted that it had struck down section 45 of the 2002 Act as a whole. However, in paragraph 54, the declaration is only in respect of further (two) conditions for release on bail as contained in section 45(1), being unconstitutional as the same violated Articles 14 and 21 of the Constitution. Be that as it may, nothing would remain in that observation or for that matter, the declaration as the defect in the provision [section 45(1)], as existed then, and noticed by this Court has been cured by the Parliament by enacting amendment Act 13 of 2018 which has come into force with effect from 19 April 2018. We, therefore, confined ourselves to the challenge to the twin conditions in the provision, as it stands to this date post amendment of 2018 and which, on analysis of the decisions referred to above dealing with concerned enactments having similar twin conditions as valid, we must reject the challenge. Instead, we hold that the provision in the form of section 45 of the 2002 Act, as applicable post amendment of 2018, is reasonable and has direct nexus with the purposes and objects sought to be achieved by the 2002 Act to combat the menace of money‑laundering having transnational consequences including impacting the financial systems and sovereignty and integrity of the countries.', Thus it is apparent that despite the Supreme Court having declared that the twin conditions for release on bail as prescribed by the un‑amended provisions of section 45(1) of the Prevention of Money Laundering Act were violative of Articles 14 and 21 of the Constitution of India and thus unconstitutional in Nikesh Tarachand Shah’s case, the validity of the amended provisions of section 45(1) of the Act was upheld by the Honourable Supreme Court in the subsequent Vijay Madanlal Choudhry case. In other words the twin conditions prescribed in section 45(1) stood revived with the amendment in 2018., Measuring the facts of the present case in the context of section 45 of the Act, the evidence collected by the investigating agency, particularly the information found stored in the laptop of the petitioner and also the bank accounts of the petitioner and of other members of his family wherein crores of rupees have been credited which remains unexplained, leaves no doubt about the complicity of the petitioner. Further, having regard to the stakes and the amount involved, there is likelihood that the petitioner, in case released on bail, will flee from justice. It may be mentioned that much before the arrest of the petitioner, a Look‑Out Notice had been issued on 6 December 2021 as it was apprehended that he may flee from the country. Thus, it can be safely said that the twin conditions prescribed by section 45 of the Act are not satisfied., However, the matter also needs to be examined with respect to the exceptions to the stringent provisions, carved in section 45 of the Act itself. The relevant extract from section 45 is reproduced herein: 'Offences to be cognizable and non‑bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm or is accused either on his own or along with other co‑accused of money‑laundering a sum of less than one crore rupees may be released on bail, if the Special Court so directs.', The medical report dated 25 August 2022 of the Jail Doctor states: 1. The prisoner, Pranjil Batra son of Madan Mohan Batra, age 38 years, has been incarcerated in Central Jail Ambala since 18 March 2022. 2. The prisoner is suffering from coronary artery disease, hypertension and diabetes mellitus type II. 3. The prisoner is undergoing treatment at the Heart Centre, Civil Hospital, Ambala Cantt and Jail Hospital, Ambala for the aforesaid diagnoses. 4. The prisoner’s blood pressure and random blood sugar remain uncontrolled due to his obesity (weight 153 kg). 5. Usually the blood pressure and random blood sugar of the prisoner fluctuate markedly. 6. The physical health condition of the prisoner is deteriorating considerably. 7. In view of his deteriorating physical health condition with complaints of bleeding per rectum, the prisoner was referred to the Trauma Centre, Civil Hospital, Ambala City on 20 August 2022 in emergency, where he was admitted by the specialist doctor of the medical institute. 8. The prisoner was discharged from the same medical institute on 27 August 2022. 9. All the aforesaid information is based on the medical treatment record of the prisoner. Signed by Medical Officer, Central Jail, Ambala., A perusal of the above medical report shows that the petitioner is an obese person weighing 153 kilograms having erratic hypertension and diabetes issues. Additionally he is found to be having coronary artery disease. Though he was taken to Civil Hospital, Ambala and was provided treatment, the doctor has opined in unambiguous terms that the physical health condition of the patient is deteriorating considerably. Obesity, as in the case of the petitioner, who weighs 153 kilograms, is not just a symptom but is itself a disease which becomes the root cause of several other diseases. With such co‑morbidities, the response, the resistance, the resilience and the capacity of the body to fight ailments and recuperate efficaciously decreases substantially. The jail doctor or, for that matter, a civil hospital may not be fully equipped to handle a patient having multiple ailments who, apart from medical treatment, may require a certain level of monitoring, care and attention which ordinarily is not available in jail. Considering the co‑morbidities of the petitioner, it can safely be said that he falls in the exception of being sick as carved out in section 45 of the Act, so as to be entitled to be released on bail. The petitioner, otherwise, has been behind bars for about eight months. The supplementary complaint already stands presented against him. There is no occasion for his custodial interrogation now at this stage. The co‑accused Radhey Shyam and Bansi Lal were released on bail immediately upon their appearance in court pursuant to issuance of summons for their appearance., In view of the discussion made above, particularly the precarious medical condition of the petitioner, the petition merits acceptance and is hereby accepted. The petitioner is ordered to be released on regular bail upon furnishing bail bonds or surety bonds to the satisfaction of the learned trial court, Chief Judicial Magistrate or Duty Magistrate concerned., It is clarified that none of the observations made above shall be taken to be an expression on the merits of the main case.
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Honourable Ritu Raj Awasthi, Judge; Honourable Dinesh Kumar Singh, Judge. We have to deal with a very unpleasant situation due to outrageous and utterly contemptuous behaviour of Advocate Sri Asok Pande inside the Allahabad High Court today in the morning. The facts which led to drawing these contempt proceedings are that as soon as the Allahabad High Court assembled in the morning, Mr Asok Pande, Advocate came to the podium. He was in civil dress with an unbuttoned shirt. When the Allahabad High Court asked him why he was not in uniform, he said that he had challenged the Bar Council Rules prescribing the Dress Code in Public Interest Litigation Civil No. 14907 of 2021 and therefore would not put on the uniform. He however said that he was appearing in person and therefore it was not required for him to don a lawyer's uniform. The Allahabad High Court told him that he should at least appear in decent dress if he was appearing in person. On this, he started questioning the Allahabad High Court what is decent dress. The Allahabad High Court asked him to button his shirt, which he did not do. He created a ruckus in the Allahabad High Court in the morning and the atmosphere of the Allahabad High Court got completely vitiated. He used intemperate language, indulged in indecent behaviour amounting to gross misconduct and he challenged the authority of the Allahabad High Court. His conduct was unbecoming a member of the legal profession. When he was warned that if he would not behave properly, the Allahabad High Court would have no option except to remove him from the Court, he challenged the Allahabad High Court and said that if the Allahabad High Court had power it could remove him from the Court. He used abusive language against the judges and said that the judges were behaving like goondas., Two days back on 16 August 2021, when the Allahabad High Court took suo motu cognizance in Public Interest Litigation Civil No. 18055 of 2021 in respect of Bar Association Election scheduled to be held on 14 August 2021, the Allahabad High Court was hearing the Returning Officer and Chairman of the Elders Committee of Awadh Bar Association, Mr Asok Pande barged into the Court and came to the podium without uniform and started shouting in a loud voice. When the Allahabad High Court asked him in what capacity he was addressing the Court, he said that he was a member of the Awadh Bar Association and had every right to address the Court. When the Allahabad High Court asked why he was not in uniform, he said that he would not don the advocate's uniform as he had challenged the Bar Council Rules prescribing the Dress Code for lawyers., The behaviour and conduct of Mr Asok Pande show that he had committed ex facie contempt of the Allahabad High Court. He has a long history of misbehaviour inside and outside the courtroom and committing contempt of the Allahabad High Court. Today, when he did not stop and continued to create an unpleasant atmosphere inside the Allahabad High Court and went on to disturb the proceedings amounting to interference with the administration of justice and scandalising the Court, we called the Court Officer and the security to remove him from the courtroom in order to maintain serenity and decorum of the proceedings, dignity of the Allahabad High Court and majesty of law. We ordered to keep him in custody till 3 p.m. so that he could come to the Allahabad High Court and express his remorse and tender an unconditional apology for his outrageous behaviour., A senior member of the Bar, Mr Mohd Arif Khan, Senior Advocate, mentioned the matter before Asok Pande arrived in the Court after 3 p.m. that the matter may be given a quietus if Mr Pande could tender his unconditional apology. We asked the respected members of the Bar who would take responsibility for Mr Asok Pande's future behaviour in the Court; no respected member came forward to guarantee his decent and appropriate behaviour in the future. After release from custody at 3 p.m., Mr Asok Pande again came to the Allahabad High Court and instead of tendering an apology or exhibiting any remorse, he again tried to disrupt the proceedings., Brief history regarding misbehaviour, using indecent and intemperate language in pleadings and oral submissions and making scurrilous allegations against sitting and retired Chief Justices, judges of this Court and judges of the Supreme Court by Mr Asok Pande is given hereunder. A Division Bench of the Allahabad High Court dismissed the writ petition filed by Sri Asok Pande by judgment dated 3 March 2003 (2003) 2 UPLEC 1294 on the ground that the Public Interest Litigation which was instituted by Sri Asok Pande was misconceived, ill‑advised and untenable and Sri Asok Pande wanted to remain in the limelight by filing such PILs. The petition was dismissed with costs., In pursuance of the order dated 1 February 2006, whereby the Allahabad High Court referred the matter about misconduct of Mr Asok Pande during Court proceedings to the Bar Council of Uttar Pradesh, three criminal contempt petitions Nos. 309 of 2006, 310 of 2006 and 311 of 2006 have been drawn against him. The said petitions are still pending., Mr Asok Pande filed Writ Petition No. 4736 (MB) of 2016 soon after the inauguration of the sesquicentennial celebrations of the Allahabad High Court on 13 March 2016 representing an organization called the Hindu Personal Law Board. This petition was filed as a Public Interest Litigation seeking a direction to the Union of India and the Allahabad High Court not to hold the sesquicentennial celebrations primarily on the ground that the completion of 150 years was founded on an erroneous assumption and, even otherwise, amounted to celebrating the subservient legacy of British rule. A Division Bench of the Allahabad High Court in its judgment and order dated 10 March 2016 found the petition lacking in substance and exhorted earnestly all members of the legal fraternity to make the forthcoming events a memorable success while observing that the petition had failed to stand the scrutiny of law under Article 226 of the Constitution of India and was hereby rejected with an earnest request to all members of the legal fraternity, particularly those who have nurtured the High Court with their toil and blood, to make the forthcoming celebrations a memorable success notwithstanding their diverse opinions., Sri Asok Pande did not stop there. He filed another Writ Petition No. 8216 (MB) of 2016 in respect of a cultural program held at the new campus of the Allahabad High Court building in Lucknow on 14 April 2016. The reliefs sought were: (a) issue a writ of mandamus directing the Chief Justice of the Allahabad High Court to order an enquiry into the circumstances and alleged conspiracy under which the High Court function started with Sufi songs of Allah‑hu, Allah‑hu and in the falahar room non‑vegetarian items were kept, and to take action accordingly; (b) issue a writ of mandamus commanding the respondents to ban the cooking and serving of vegetarian and non‑vegetarian items for dinner together in the same venue and by the same caterers in all public functions and for public dinner or lunch at public expense; (c) issue a writ of mandamus commanding the respondents to evolve a policy not to permit praising of religious symbols and shrines of any particular religion in the name of Sufi gayan., The intervenor in his application filed in the aforesaid writ petition highlighted the manner in which Sri Asok Pande attempted to disrupt the sesquicentennial celebrations on 14 April 2016 by inciting members of the Bar; however, his attempt failed to stall the program. The Allahabad High Court in its judgment and order dated 19 April 2016 took note of paragraphs 9 and 10 of the writ petition filed by Sri Asok Pande, which stated that the 'Harkat' to hurt the sentiments of Hindus was planned by the Chairman of the organising committee, Sri Shabibul Hasnain, and his other religious men in the High Court administration to give a befitting reply to the Governor Sri Ram Naik during the day session in the presence of Sri Hamid Ansari, Vice President of India, when the Governor performed a Ram Katha and congratulated the persons gathered on the eve of Navratri and Ram Navami. It further stated that only to give a befitting reply to the Governor and other Hindus, the evening cultural program, which should have been started with Saraswati Vandana and Vande Mataram, started with Allah‑hu, Allah‑hu in the name of so‑called Sufi gayan., The Allahabad High Court was of the view that the effort of Sri Asok Pande was to target the Chairperson of the Organising Committee at Lucknow, who was a sitting judge of the High Court. It was a scandalous attempt to lower the dignity of the Court. The Court observed that the manner in which the petition was drafted and the effort made to target the Chairperson indicated a conscious and premeditated attempt to bring the Court and the judge into disrepute, a calculated attempt to sow hatred and divide the institution on communal lines. The Court also observed that Sri Asok Pande is habitual in instituting petitions either in his own name or in the name of the Hindu Personal Law Board and that repeated recourse to the jurisdiction of the Allahabad High Court under Article 226 of the Constitution of India is undertaken merely as a means of publicity and without any supervening cause or justification based on public interest., The Allahabad High Court observed that the petitioner is habitual in instituting petitions either in his own name or in the name of the body through which the present petition has been filed. It affirmed the view that repeated recourse to the jurisdiction of the Court under Article 226 is initiated merely as a means of publicity and without any supervening cause or justification based on public interest. The time, effort and attention of the Court which should be devoted to genuine cases is deflected in the hearing of these petitions, which are conducted without restraint, drafted without concern for the rules of pleadings and without a sense of responsibility. Proceedings are argued ad nauseam and reduced to a spectacle of frivolity. The Court not only dismissed the writ petition but also issued a show‑cause notice to Sri Asok Pande why he should not be proceeded against for committing criminal contempt under the Contempt of Courts Act, 1971. The Court further directed that petitions filed by Sri Asok Pande or in the name of the Hindu Personal Law Board can be accepted only if accompanied by a demand draft of Rupees 25,000 drawn on a nationalised bank in the name of the Senior Registrar of the Allahabad High Court, Lucknow. The Court observed that if the petition was a genuine effort to espouse a cause in public interest, the demand draft would be returned; however, if the petition was frivolous or an abuse of process, the amount should be retained as costs., The Court noted that on numerous occasions various courts had found Sri Asok Pande to have indulged in drafting pleadings which did not give credit to a member of the legal profession. The writ petition was dismissed with costs of Rupees 25,000 payable to the Uttar Pradesh Legal Services Authority. We are informed that he has not deposited any cost imposed on him in several proceedings., A Division Bench of the Gujarat High Court in its judgment dated 14 April 2011 passed in Writ (Public Interest Litigation) No. 129 of 2011 filed by Sri Asok Pande, wherein he challenged the appointment of the Governor of the State of Gujarat, observed that the petition is a fine specimen of abuse of process of the Court in the name of Public Interest Litigation. It was expected from a member of a noble profession not to invoke jurisdiction of the Court where the position of law is abundantly clear. The Division Bench further observed that the petition is not only wholly misconceived but that the bona fides of the petitioner appear doubtful, and that a member of a noble profession, a practising lawyer, has not exercised any restraint while drafting the petition, and that the averments are quite derogatory and not acceptable from a petitioner appearing as a party‑in‑person., Sri Asok Pande challenged the aforesaid judgment before the Supreme Court by means of Special Leave to Appeal (Civil) No. 9767 of 2012, which was dismissed by the Supreme Court by order dated 22 March 2012 with costs of Rupees 1,00,000 in addition to costs imposed by the Gujarat High Court. The order of the Supreme Court reads: 'After hearing the petitioner in detail, we are of the view that the High Court has not committed any error whatsoever while dismissing the petition filed by the petitioner which is styled as Public Interest Litigation. We add that the petition filed by the petitioner is not only frivolous but highly mischievous. Therefore, while affirming the order passed by the High Court, we dismiss the special leave petition. For wasting precious public time of this Court, we feel that the petitioner should be mulcted with exemplary costs. Accordingly, we direct that the petitioner shall pay a further sum of Rupees 1 lakh, apart from the costs already imposed by the High Court with the Gujarat State Legal Services Authority, within three weeks from today. If for any reason the petitioner fails to deposit the costs as directed, the Gujarat State Legal Services Authority shall initiate appropriate recovery proceedings against the petitioner.' Review Petition (c) No. 1782 of 2012 in SLP (c) No. 9767 of 2012 filed by Sri Asok Pande was also dismissed by the Supreme Court by order dated 29 August 2021., Sri Asok Pande filed Writ Petition No. 624 (MB) of 2011 (Public Interest Litigation), Asok Pande v. N. K. Mehrotra, seeking to challenge the appointment of the Lokayukta. In the petition, a former Chief Justice, a retired judge of this Court and a sitting judge of the Supreme Court were impleaded. A Division Bench of the Allahabad High Court in its order dated 31 May 2011 held that the petition reflected the personal grudge and personal view of the petitioner regarding the judges and the orders passed by them and his own interpretation of such orders. The Division Bench observed that the manner in which the petition was drafted, the language used and the allegations made were inappropriate, uncalled for and without any basis, reflecting a personal grudge and scant respect for the Court. The courts cannot be allowed to be maligned for settlement of personal grievances of a litigant, even if a lawyer. The dignity of the Court and the majesty of law have to be maintained., Another writ petition filed by Asok Pande, Miscellaneous Bench No. 6349 of 2014, seeking a writ of certiorari for quashing the appointment of the Governor of Uttar Pradesh, was also dismissed with costs., A writ petition filed by Asok Pande, Miscellaneous Bench No. 7335 of 2014, seeking to challenge an order of the Governor recalling the appointment of the Advocate General of the State, was dismissed along with various other writ petitions and public interest petitions filed by him., A Full Bench of the Allahabad High Court was hearing a reference to decide the question whether a judge of the Honourable High Court sitting alone or judges sitting in a Division Bench hearing any matter in his or their determination assigned by the Honourable Chief Justice can overstep into the determination of another bench if any issue or question arises in the matter, including a question in public interest, which is not connected to the matter before him or them, and which in his or their opinion is necessary to be decided, and further, in such case where in his or their discretion it is necessary to decide such question, what procedure should be adopted. This reference was made in Writ Petition No. 2599 (MB) of 2014. Sri Asok Pande filed an application for intervention making allegations against the Chief Justice and other judges in paragraphs 14 and 15, which are extracted herein: Paragraph 14 stated that the constitution of the three‑judge bench to hear the matter was highly illegal and unconstitutional, amounting to indictment, insult and misbehaviour with Sri Uma Nath and Sri Zaki Ulla. Although the Chief Justice is master of the roster, that does not give authority to insult and misbehave with good, honest, bold judges. Paragraph 15 alleged that a friend, Sri R. N. S. Chauhan, advocate and close friend of Sri Imtiaz Murtaza J., was approached by a contractor offering Rupees 25 lakh in case he could manage a contract in his favour with the blessing of Sri Imtiaz Murtaza J. Sri R. N. S. Chauhan denied the offer, but later learned that the same person obtained the contract, showing that contractors are moving around the High Court, the residence of the judges and their nears and dears with huge money for getting the contract. The question was raised why judges are involved in the award of contracts, whether it is judges' work or bureaucracy, and to whom the bribe offered to Mr Chauhan went, how many more contracts were awarded and who received the bribe, and on whose recommendations and directions the contracts of the Civil Court and High Court building are being awarded., The Allahabad High Court dismissed the application on the ground that the applicant had absolutely no locus to address the Full Bench on merits of the writ petition and had refused to delete paragraphs 14 and 15 of his affidavit, which the Division Bench had directed him to consider. The Court found the assertions made by Sri Asok Pande wholly irresponsible and callous. Time and again, the Court observed that he was in the habit of making unfounded and reckless allegations not only against the judiciary but against any person., In paragraphs 18 and 19 of the judgment dated 5 January 2017 passed in the aforesaid writ petition, the Court noted that despite requests to delete paragraphs 14 and 15 of his affidavit, Mr Pande refused, repeatedly attempted to make submissions supporting his earlier observations, and made no submission on the question formulated for the opinion of the Bench. Consequently, the Court rejected his application for intervention and kept open the request made by Mr J. N. Mathur, learned Senior Counsel appearing for Uttar Pradesh Rajya Nyay Nyas, that action be taken against Mr Pande, who is appearing in person, for making irresponsible, baseless, reckless and unfounded allegations in paragraphs 14 and 15 of his affidavit, either for having committed criminal contempt of the Allahabad High Court and/or to restrain him from entering the precincts of the Court at Lucknow and at Allahabad in exercise of the powers under Rule 11 falling in Chapter XXIV of the Allahabad High Court Rules, 1952. The matter has been kept open for debarring him from entering the precincts of the Court at Lucknow and at Allahabad at an appropriate stage., Ex facie contempt proceedings were initiated against Mr Asok Pande during the hearing of Public Interest Litigation Civil No. 383 of 2017. The Allahabad High Court in its order dated 10 January 2017 noted that Mr Asok Pande, during the course of hearing, made serious allegations about the conduct of the learned single judge while passing a judicial order. The Court warned Mr Asok Pande not to utter any word that may amount to scandalising the Court or impugning its repute and not to further impede the proceedings, as sufficient time had been given for hearing. However, Mr Pande, instead of adhering to the request, repeated the allegations and did not refrain from disturbing the proceedings, leaving the Court with no option but to warn him of initiation of criminal contempt proceedings. Despite the warning, he insisted upon his submissions and the Court was compelled to call upon the Court Officer and order that Mr Pande be taken into custody., After the incident, some respected members of the Bar intervened and requested that criminal contempt proceedings not be pursued and offered an apology on behalf of Sri Pande. In the meantime, a handwritten note of Sri Asok Pande stating that he never intended to make any comment against any judge and that he was taking his words back was handed over by the President of the Oudh Bar Association along with Pt. S. Chandra, General Secretary, Oudh Bar Association, to the Court. The Court did not find the communication to be a remorseful apology. The matter was taken up after lunch when Sri Pande was again produced before the Court, and he appeared in person and expressed his regret in unequivocal terms. The Court noted that Sri Asok Pande's insulting behaviour, anger and revengeful attitude had obstructed the proceedings. The Court also noted that the writ petition was filed with the intention to insult the judges, lower the dignity of the Court and obstruct judicial proceedings. The Court noted that Sri Asok Pande had been warned about his behaviour earlier and he was taken into custody in a previous case, which he admitted in the application., The Court finally, in its judgment and order dated 10 January 2017, noted the past conduct of Sri Asok Pande in the High Court, which had been recorded in various judicial pronouncements of this Court and other courts. His contemptuous activities and his behaviour and conduct in the Court in the past exhibited a conduct that prima facie indicates misconduct and unprofessionalism, which had been deprecated, commented upon and suitably punished in the past. The Court also noted four such cases: (i) Writ Petition No. 624 (MB) of 2011, Asok Pande v. Sri N. K. Mehrotra and others; (ii) Writ Petition No. 6349 (MB) of 2014, Asok Pande v. Union of India and others; (iii) Writ Petition No. 8216 (MB) of 2016, Hindu Personal Law Board through Asok Pande v. Union of India and others; (iv) Special Leave to Appeal (Civil) No. 9767 of 2012, Asok Pande v. Union of India and others. The Division Bench held that the conduct of Sri Asok Pande inside the Court was to scandalise the proceedings, to insinuate and insult judges personally so as to browbeat them in relation to their work and conduct in judicial proceedings and to attempt bench hunting, and therefore he deserved to be tried for contemptuous behaviour., The Court drew contempt proceedings and framed the charge in terms of Section 15 of the Contempt of Courts Act, 1971 read with the provisions of Chapter XXXV‑E of the Allahabad High Court Rules, 1952 and the plenary powers of the High Court under Article 215 of the Constitution of India. The charge read: 'You Asok Pande, Advocate, on 10 January 2017 moved an application whose contents were pressed into service by you openly in Court during Court proceedings in the present writ petition, clearly revealing a description of the orders passed on 6 January 2017 in Special Appeal No. 2 of 2017 and your anguish about the same, describing the judicial order as an outcome of bad behaviour and misbehaviour of one of us [A. P. Sahi, J.], and that such application was moved in the presence of all concerned including lawyers, litigants and Court officials, which appears to be clearly intended to defile the image of the Court, cast insinuations and personally insult a judge in open Court and is clearly intended to bring the Court into disrepute by making scandalous allegations that are contemptuous. Such contempt coupled with your demeanour in levelling such allegations in writing, amounts to clear contemptuous behaviour as envisaged under Section 15 of the Contempt of Courts Act, 1971, making you liable to be punished and to be debarred from practising in this Court in view of the provisions of the Contempt of Courts Act, 1971 read with the judgments referred to, particularly the observations made by the Full Bench in Writ Petition No. 2599 (MB) of 2014 dated 5 January 2017, and therefore you are hereby called upon to answer the aforesaid charge in person or through counsel and present yourself to be tried on Monday, i.e., 16 January 2017 before the Bench concerned.', Thus, the contempt proceedings in Contempt Petition No. 103 of 2017, State of Uttar Pradesh v. Asok Pande, were drawn against him to try him for the aforesaid charge. The Allahabad High Court, after noticing his conduct, demeanour and belligerent attitude as well as pleadings, passed a detailed judgment and found him guilty of the charge. He was sentenced to three months simple imprisonment and a fine of Rupees 25,000. Besides, Sri Asok Pande was restrained from entering the premises of the High Court of Judicature at Allahabad and Lucknow for a period of two years., During the course of argument, the Court pointed out to the contemnor that wild allegations levelled upon conduct of judges constitute a serious act within the definition of criminal contempt, though truth is a valid defence under amendment made by Section 13(b) of the Contempt of Courts Act, 1971, but for that purpose the contemnor must substantiate his allegations by placing relevant material on record, which he simply reiterated from various documents filed along with his deferment application and said that the matters may be directed to be investigated by an appropriate agency., The Court observed that a tendency has developed of making allegations and aspersions upon judges when counsel finds inconvenience in one way or another. Every judge knows that judges presiding over courts have no platform to speak and clear allegations made against them are confined to the matter under consideration. Such orders are not to be taken as a pretext to explain conduct of judges, and judges may be condemned ex parte by advocates and others, knowing there is no platform available to judges for clarification. It is a situation where an honest judge, working bona fide with wholesome integrity, sometimes due to strict adherence to rule of law and unquestionable integrity, suffers at the hands of naive and mischievous parties or scrupulous advocates who show more sincerity to their clients than devotion to the Court, of which they are officers., Instances of open threat as well as veiled threat are now occurring frequently. Many times undue pressure on the part of members of the Bar, keeping in view sole right or wrong interest of their clients, is also writ large when they proceed to exert pressure by a collective decision of abstention of Court or otherwise outside condemnation of presiding officers of Court.
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Another unfortunate part is that in the name or pretext of harmony and smooth functioning of the Institution, by possession an attitude, not to become a party to any controversy or conflict, those responsible to manage the entire institution keep such instances under the carpet and avoid taking appropriate action, forgetting the golden rule that anything rotten kept and covered is bound to decay and stink. It would ultimately prove disastrous for the institution as a whole. Inaction or lack of appropriate action on the part of those responsible to take action many times has the effect of demoralisation to others and encourages nasty members of the Bar and litigants to continue with their pressure tactics and other nefarious activities. Those who stand on the judicial side are a few individuals and become an eyesore to remaining stakeholders of the Institution in one way or another. To stand in such a situation for a Judicial Officer is an act of courage and valiant but many times he finds people supporting him almost negligible. It is high time when an inside, deep and thorough review of the entire situation is needed to check such instances and growing tendency amongst other side of stakeholders, otherwise independence, objectivity and strength of the Institution would be in jeopardy., Nobody is above law and everybody is under an obligation to adhere to the rule of law. This principle every stakeholder of an institution of dispensation of justice has to follow in words and spirit. If we allow any deviation or distraction in the name of convenience, harmony, smooth functioning or such other clumsy pretext, it will do more harm to the system. We, however, find it our duty to stand in such a situation to maintain the majesty, honour and independence of the institution of justice instead of surrendering to the individual interest of anybody whatsoever in the name of sympathy, leniency or compassion., Power of justice has been handed down to Courts from the sovereignty of the State. Amongst all other kinds of sovereign functions, dispensation of justice is treated to be a power which would have been exercised by the King as a representative of God. It is treated as a divine power. A divine power does not mean compassion to the wrongdoer and allowing or continuing to cause irreparable injury and loss to the wronged one. Power to do justice includes the power of punishment. When someone has done something wrong, adequate punishment for such wrong is also a divine obligation upon the Court of law whereby such power is to be exercised., In the present case, in the zeal of so‑called public service, no one including an officer of the Court, i.e., a member of the Bar, can be allowed to make insinuations, allegations and aspersions on the Judges of this Court or, in that way, even of any other Court which has the effect of lowering the majesty of the Court as a whole in the eyes of the general public. The contemnor has not only made allegations, wild and unsubstantiated, in various writings but also sought to make them public in different ways and also during the course of argument by reading these allegations in open Court in the presence of advocates, litigants and staff., We find also no sense of remorse, repentance or apologetic attitude on the part of the contemnor at any point of time. We therefore find that the act of the contemnor of committing criminal contempt, in view of our finding with regard to the charge that it stands proved, is quite serious and deserves an appropriate stringent punishment., In these facts and circumstances, holding the contemnor guilty of the charge levelled against him, we sentence him to three months simple imprisonment and a fine of Rupees 2,000. In case of failure to pay the fine within one month from today, the contemnor shall undergo a further simple imprisonment of three months., Besides, we also restrain the contemnor from entering the premises of the Allahabad High Court and the Lucknow High Court for a period of two years. In computing the above period, the period he has already undergone pursuant to our order dated 01‑03‑2017 shall be adjusted. In other words, the period of two years shall be treated to commence from 02‑03‑2017., Lord Diplock said regarding contempt of Court: “The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely on obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based on those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that once the dispute has been submitted to a court of law, they should be able to rely on there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.” Lord Morris of Borth‑y‑Gest said, “When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognized courts of the land are so flouted that their authority wanes and is supplanted.”, Three clauses of Section 2(c) of the Contempt of Courts Act, 1971 define “criminal contempt”. It is in terms of obstruction of or interference with the administration of justice., The Supreme Court of India in the case of Baradakanta Mishra v. The Registrar of Orissa High Court [(1974) 1 SCC 374] noted that broadly the Act accepts that proceedings in contempt are always with reference to the administration of justice. With reference to the three sub‑clauses of Section 2(c) of the Act, the Supreme Court observed that sub‑clauses (i) and (ii) deal with obstruction and interference respectively in the particular way described therein, while sub‑clause (iii) is a residuary provision by which any other type of obstruction or interference with the administration of justice is regarded as criminal contempt., In the case of Balogh v. St. Albans Crown Court, [1975] 1 QB 72, which dealt with contempt in the face of the Court, Lord Denning MR said that contempt in the face of the Court led to instant punishment on the spot, unlike punishment rendered on motion. It was never confined to conduct which a judge saw with his own eyes and so contempt in the face of the Court is the same thing as contempt which the Court can punish of its own motion and it really means contempt in the cognizance of the Court. In other words, contempt “of its own motion” is a species of contempt in the face of the Court. Some instances were given such as contempt (i) in the sight of the Court, (ii) within the courtroom but not seen by the judge, and (iii) at some distance from the Court. In this context it was said that the power to punish for contempt is a summary power, it is a great power, and it is a necessary power. This is a drastic power which should be invoked to meet the ends of justice., The High Court has power under Article 215 of the Constitution of India to punish for contempt of itself. The definition of criminal contempt in Section 2(c) of the Contempt of Courts Act, 1971 reads as follows: “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner., The Supreme Court of India in M. Y. Shareef and another v. The Honourable Judges of the High Court of Nagpur and others [(1955) 1 SCR 757] at page 764 noted the growing tendency of maligning the reputation of Judicial Officers by disgruntled elements and members of the profession resorting to cheap gimmicks with a view to browbeating the Judges. The judgment reads: “The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped in the bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system, the damage caused is not only to the reputation of the concerned judge but also to the fair name of the judiciary; veiled threats, abrasive behaviour, use of disrespectful language and at times blatant condemnatory attacks are often deliberately employed with a view to taming a judge into submission to secure a desired order. Such cases raise larger issues touching the independence of not only the concerned judge but the entire institution. It is high time that we realise that the much‑cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system.”, The Supreme Court of India in the case of R. K. Anand v. Registrar, Delhi High Court [(2009) 8 SCC 106] in paragraph 333 expressed its concern on the falling professional norms amongst lawyers. Paragraphs 333 to 335 read: “We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for administration of justice in the country. No judicial system in a democratic society can work satisfactorily unless it is supported by a bar that enjoys the unqualified trust and confidence of the people, that shares the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people. We are glad to note that Mr. Gopal Subramanium, the amicus, fully shared our concern and realised the gravity of the issue. In course of his submissions he eloquently addressed us on the elevated position enjoyed by a lawyer in our system of justice and the responsibilities cast upon him in consequence… We respectfully endorse the views and sentiments expressed by Mr. M. C. Setalvad, Pandian J. and Sawant J. … The Bar Council of India and the State Bar Councils cannot escape their responsibility in this regard. Indeed, the Bar councils have positively taken up a number of important issues concerning the administration of justice in the country. They have consistently fought to safeguard the interests of lawyers and have done a lot of good work for their welfare. But on the issue of maintaining high professional standards and enforcing discipline among lawyers their performance hardly matches their achievements in other areas. It has not shown much concern even to see that lawyers should observe the statutory norms prescribed by the Council itself. We hope and trust that the Council will at least now sit up and pay proper attention to the restoration of high professional standards among lawyers worthy of their position in the judicial system and in society.”, We are drawing these contempt proceedings suo motu, finding prima facie the conduct, insinuation and insulting behaviour of Sri Asok Pande, Advocate towards judges and intemperate language used by him with an aim to disrupt the court proceedings and scandalise the Court and interfere with the administration of justice as ex facie contemptuous. He has been habitual in making scandalous and scurrilous allegations against the Judges including the Chief Justices of this Court and even the Supreme Court Judges inside and outside the court. Despite warning, he did not mend his ways and exhibited belligerent behaviour bringing down the majesty of the law and dignity of the High Court. Every attempt in the past has failed to correct his contemptuous conduct in the Court. Even punishments have not deterred him, and any leniency has only emboldened him to indulge in contemptuous behaviour, using intemperate and abusive language, insinuating, intimidating and insulting the judges and interfering with the administration of justice., When the Bar Council of India has prescribed the dress code in rules framed under Section 49(I)(gg) of the Advocates Act, a lawyer cannot come to the Court not wearing the uniform, and when he is pointed out he cannot say that since he has challenged the Bar Council Rules in Public Interest Litigation Civil No. 14907 of 2021, therefore he would not wear the uniform prescribed by the Bar Council of India., This High Court in Rule 12 of the Allahabad High Court Rules, 1952 has also prescribed the dress of an advocate appearing before the Court, which reads: “Dress of advocate appearing before Court: Advocates, appearing before the Court, shall wear the following dress: (1) Advocates other than lady advocates: (a) Black buttoned‑up coat, chapkan, achkan or sherwani, barrister’s gown and bands, or (b) Black open‑collar coat, white shirt, white collar, stiff or soft with barrister’s gown and bands.”, The Bar Council of India Rules and State Bar Council Rules mention certain canons of conduct and etiquette as general guide for an advocate. Section I of Chapter II of Part IV of the Bar Council of India Rules explains the duties of an advocate to the Court as follows: 1. An advocate while presenting his case should conduct himself with dignity and self‑respect. 2. Respectful attitude must be maintained by the advocate; he has to keep in mind the dignity of the judge. 3. An advocate should not, by any improper means, influence the decision given by the court. 4. It is the duty of the advocate to prevent his client from resorting to unfair practices and also the advocate himself should not do any such acts. 5. Dress code has to be maintained by the advocate while appearing before the court. 6. An advocate should not take up any case of his family members and relatives. 7. No bands or gowns are to be worn by the advocate in public places; it is limited to the court premises. 8. An advocate cannot act as a surety for his client. 9. It is the duty of the advocate to cooperate with the bench in the court. 10. It is the duty of the advocate to perform his functions in such a manner that due to his acts the honour, dignity and integrity of the courts shall not be affected. 11. An advocate should not laugh or speak loudly in the courtroom especially when the proceedings are going on. 12. When an advocate accepts a brief, he should attend all adjournments properly; if he has any other work in another court, he should first obtain permission from the concerned court. Particularly in criminal cases, it is the first and foremost duty of an advocate to attend. 13. While the case is going on, the advocate cannot leave the court without the court’s permission and without putting another person in charge, preferably a colleague, junior or friend advocate., Finding the misconduct, misbehaviour and foul and intemperate language of Sri Pande ex facie contemptuous and his belligerent attitude challenging the authority and majesty of the Court and his resolute attempt to disturb the Court proceedings, we passed the order for taking him into custody till 3 p.m. as mentioned above. After release, he again came to the Court and instead of tendering an apology or exhibiting any remorse, he again tried to disrupt the court proceedings., Judges and lawyers have worked in great harmony and cooperation and have built the glorious judicial institutions in India. Lawyers have boldly and fearlessly participated in the national movement. Even today most lawyers are discharging their social duties honourably and contributing their best for upholding the majesty of the Courts. “Dharma protects those who protect it. Those who destroy Dharma get destroyed. Therefore, Dharma should not be destroyed so that we may not be destroyed as a consequence thereof.” (Manusmriti VIII‑15), As noted above, a minuscule minority of the lawyers are bringing disrepute to the noble profession and trying to browbeat judges and interfere with the administration of justice. It is the duty of the judges and the advocates community to uphold the majesty of law and maintain purity in the justice delivery system. The dignity of judges cannot be allowed to be polluted by these disgruntled and publicity‑seeking persons. The past conduct of Sri Asok Pande and the ex facie contempt committed by him today in the courtroom does not leave us with any scope other than charging him for committing ex facie contempt of the Court in order to protect the majesty and dignity of this Court. We are pained to act against him, but we are also conscious of our duties and responsibilities to protect the institution of the High Court and to maintain purity in the administration of justice., In view thereof, we hold that Sri Asok Pande has prima facie committed ex facie contempt of Court during the court proceedings on 18‑08‑2021, which amounts to scandalising and lowering the authority of this Court and interfering with the due course of judicial proceedings and also has a tendency to interfere with or obstruct the administration of justice., We are exercising powers in terms of Section 15 of the Contempt of Courts Act, 1971 read with the provisions of Chapter XXXV‑E of the Allahabad High Court Rules, 1952 and the plenary powers of the High Court under Article 215 of the Constitution of India and frame the following charge against Mr Asok Pande: You, Mr Asok Pande, Advocate, on 18‑08‑2021 as soon as the Court assembled in the morning, came to the podium in civil dress with an unbuttoned shirt. When the Court asked why you were not in uniform, you said that since you had challenged the Bar Council Rules prescribing the dress code in Public Interest Litigation Civil No. 14907 of 2021, you would not put on the uniform. You informed the Court that you were appearing in person and therefore it was not required for you to don a lawyer’s uniform. When the Court asked you to at least appear in decent dress, you started questioning what constitutes decent dress. The Court asked you to button your shirt, which you did not do. You created a ruckus in the Court in the morning and the atmosphere of the Court was completely vitiated. You used intemperate language, indulged in indecent behaviour amounting to gross misconduct and challenged the authority of the Court. Your conduct was unbecoming a member of the legal profession. When the Court warned that if you did not behave properly the Court would have no option except to remove you, you challenged the Court and said that if the Court had power it could remove you. You used abusive language against the judges and said that the judges were behaving like “goondas”. Two days back on 16‑08‑2021, when this Court took suo motu cognizance in Public Interest Litigation Civil No. 18055 of 2021 in respect of the Bar Association election scheduled for 14‑08‑2021, the Court was hearing the Returning Officer and Chairman of the Elders Committee of Awadh Bar Association. You, Mr Asok Pande, barged into the Court and came to the podium without uniform and started shouting at the top of your voice. When the Court asked in what capacity you were addressing the Court, you said that as a member of the Awadh Bar Association you had every right to address the Court. When the Court asked why you were not in uniform, you said you would not don the advocate’s uniform as you had challenged the Bar Council Rules prescribing the dress code for lawyers and insisted on addressing the Court without donning the advocate’s uniform. Your conduct in the Court and outside the Court clearly intended to defile the image of the Court, cast insinuations and personally insult judges in open Court. It is clearly intended to bring the Court into disrepute by making scandalous allegations and using abusive language against the judges. Your ex facie contemptuous behaviour as envisaged under Section 15 of the Contempt of Courts Act, 1971 defining criminal contempt makes you liable to be punished and to be debarred from practising in this Court in view of the provisions of the Contempt of Courts Act, 1971, and therefore you are hereby called upon to answer the aforesaid charge in person or through counsel and present yourself to be tried on 31‑08‑2021 before the Bench concerned., Besides initiating these contempt proceedings, we direct the Bar Council of Uttar Pradesh to examine the past conduct of Sri Asok Pande, Advocate, detailed above in order to decide whether such a person is worthy of being part of the noble profession, and to take appropriate disciplinary proceedings against Sri Asok Pande. A copy of this order shall be sent to the Uttar Pradesh Bar Council for compliance.
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Reserved on: 5th October 2023 Pronounced on: 01st March 2024 Through: Ms. Naina Kejriwal, Advocate with Ms. Shoma, Advocate versus Through: Mr. S. Janani & Ms. Sharika Rai, Advs. with Respondent in person., Marital bonds are delicate emotional human relationships and involvement of any third person could result in complete collapse of trust, faith and tranquillity. Any sort of influence by a third person can be a silent destroyer of the bond, leading to prolonged irreconcilable differences. Such relations eventually become a ticking time bomb, where feelings of anguish, despair, rejection and disappointment get trapped and post explosion, the shrapnel of these suppressed feelings causes injury to everyone involved, whether directly or indirectly., The present appeal under Order 41 Rule 1 of the Civil Procedure Code, 1908 has been filed on behalf of the appellant husband against the judgment dated 21.12.1999 of the learned Additional District Judge, denying divorce on the ground of cruelty in a petition filed by the appellant husband (Petitioner in the Divorce Petition) under Section 13(1)(ia) of the Hindu Marriage Act., Briefly stated, the parties married on 06.12.1982 and were blessed with a daughter and a son on 26.09.1984 and 26.08.1991 respectively., The appellant husband asserted in his Divorce Petition that the respondent was disrespectful, refused to take care of him and even assaulted him physically. She habitually extracted money and forced him to give expensive gifts to her relatives and had no affection towards him or his family members. It was asserted that the respondent went to Patiala on 16.06.1992 on a false pretext of illness of her mother while the appellant had to go to Kaza for his office work. Subsequently, he learned that her younger sister had gone missing for three days and a false pretext of illness of mother had been told to him. On return from Kaza, he stopped at the house of the respondent's family in Patiala and tried to counsel the family to let the sister marry the man with whom she had gone, but he was not appreciated for his concern and was threatened with divorce and ridiculed in filthy language by the respondent and the family members., On a previous occasion, she quarreled with him when his sister got married on 03.01.1987 at Arya Samaj Mandir, Vasant Vihar, and advised him not to attend the wedding of his own sister., The appellant further asserted that while he was operated in G.M. Modi Hospital on 15.07.1993 for appendicitis, the respondent quarreled with him despite him being in terrible pain and was forced by the ward staff to leave the hospital. She made false allegations of the appellant leading an immoral life and even made false and baseless allegations of him having an illicit relationship with a Ms. B.S., in her complaint dated 04.07.1994 filed before the Women Cell, Police Station Hauz Khas, Delhi., The appellant asserted that on 02.07.1994 while he returned from Bhopal, the respondent along with her parents and sister came to his house and they threatened him with his life. The respondent thereafter stopped performing her conjugal duties for more than two years and they started living separately in the same house., The appellant asserted that because of such conduct of the respondent his peace of mind was shattered and he was compelled to do all the household work including cooking and taking care of the children. He thus sought divorce on the ground of cruelty., The respondent wife in her Written Statement asserted that by filing the Divorce Petition, he was seeking to take advantage of his own wrongs. Essentially, it is asserted that their relationship was cordial till the appellant allegedly got into an illegitimate relationship with his colleague Ms. B.S. When she came to know about it in 1993, differences cropped up between them. It is asserted that because of this illegitimate affair the appellant himself started living in a separate room and started ill‑treating her and made her life miserable since December 1993., The respondent further asserted that Shri N.R.S., father of Ms. B.S., also made various representations to the Director of NIEPA, where the appellant was employed, aside from representations to the Secretary, Department of Education, Ministry of Human Resource Development, Police and also to the Legal Aid and Advice Board, Patiala House Courts, New Delhi about the appellant ruining the life of his daughter Ms. B.S., Thereafter, the appellant left the matrimonial home on 11.08.1994 and started residing with Ms. B.S. and the two children at Malviya Nagar, New Delhi. It is claimed that they were living as husband and wife and the children were forced to address Ms. B.S. as mother. The respondent even came to know that Ms. B.S. was pregnant., The respondent denied all the allegations of being quarrelsome that were made by the appellant against her. She asserted that she discharged all her matrimonial duties with sincerity, but the discord was only on account of the illegitimate affair of the appellant with Ms. B.S. She admitted making a complaint on 04.07.1994 to the Women Cell, however, she mentioned that it was made because her children had been removed from her custody in a clandestine manner. She further clarified that it was the appellant who stopped maintaining conjugal relationship and he finally left the matrimonial home on 11.08.1994 on account of his illegitimate relationship. In fact, on the same day he and Ms. B.S. also left their job at NIEPA. It was therefore claimed that the appellant was not entitled to divorce., The appellant in his replication denied all the allegations of illicit relationship and claimed them to be defamatory. He submitted that he even filed a complaint under Section 500 of the Indian Penal Code which was pending disposal before the learned Metropolitan Magistrate, Delhi. He further asserted that the parents of Ms. B.S. had come to the hostel where Ms. B.S. was residing and gave a public beating to her at the bus stop of Ganga Hostel and she was dragged to a parked vehicle. The appellant had tried to intervene and pacify the parents of Ms. B.S.; they got upset and made wild allegations against his character. He explained that Ms. B.S. had been engaged by him only as a governess to the children. He reiterated his allegations of cruelty against the respondent wife., Issues were framed on 04.12.1996 as under: (i) Whether the respondent has treated the petitioner with cruelty after solemnisation of marriage? (ii) Relief., The appellant appeared as PW1 and Ms. B.S. as PW2 as well as Mr. N.C.S., father of Ms. B.S., as CW1. The respondent appeared as RW1 and also examined Ms. Bharti as RW2, H.C. Dal Chand as RW3, Shri Prem Pal, official of Syndicate Bank as RW4, Mr. G.S. Bhardwaj, Administrative Officer of NIEPA as RW5, Mrs. Kusum, Ahlmad from the Court of the learned Metropolitan Magistrate as RW6, Ms. Saroj Bala, Sub Inspector of Delhi Police as RW7, Ms. Surbi Sarkar, sister of Ms. B.S. as RW8, Ramesh Chand, LDC from the Office of Delhi Legal Aid & Advice Board as RW9 and Mrs. Bindu Khandelwal as RW10., The learned Additional District Judge, after referring to the evidence and documents, concluded that the relationship between the appellant and Ms. B.S. was of a nature that would cause one to believe that they had a relationship of husband and wife, which was unlawful, unauthorized and not sanctioned by rule and custom and the possibility of sexual relationship between them could not be ruled out. Hence, the suspicion of the respondent was not held to be baseless and her conduct towards the appellant was not found to be cruel, entitling him to a decree of divorce. The divorce petition was accordingly dismissed., Aggrieved by the dismissal of the Divorce Petition, the appellant husband has preferred the present Appeal., Learned counsel for the appellant, in support of his averments in the present appeal, placed reliance upon the judgment of Shilpa Shahilesh vs. Varun Sreenivasan Transfer Petition (Civil) No.1118 of 214, Naveen Kohli vs. Neelu Kohli Appeal (Civil) 812 of 2004 of the Supreme Court of India, Dishad Kushwaha vs. Rituraj Singh FAO No.653/2016 of the High Court of Madhya Pradesh, XXXX vs. XXXX MAT Appeal No. 513/2021 of the High Court of Kerala and K. Mallikarjuna vs. H.A. Sudha Mallikarjuna Misc. FAO No.4314 of 2012 of the High Court of Karnataka, and sought a prayer for setting aside of decree dated 21.12.1999 and for grant of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955., Submissions heard and record perused., It has emerged from the testimony of the respondent that she and the appellant met while they were studying in JNU together for about a year and a half prior to their marriage on 08.12.1982. They were both blessed with a son and a daughter and apparently lived cordially and had a happy married life till about 1993. Apparently, major differences started emerging between them in the year 1994., It is one of those unfortunate cases where after the marriage of the parties on 06.12.1982, the relation between them could remain stable till about December 1993. Life in all its uncertainties unfolded when despite having a cordial married life for a sufficiently long period of ten years, apparently the appellant developed affection for his colleague Ms. B.S. who was working in the same office, and that was the point when the entire world of the respondent came down shattering. The appellant himself has stated that the respondent started making allegations of illicit relationship with Ms. B.S. However, these allegations were not unfounded, as is borne out from the evidence on record., The appellant was admitted in G.M. Modi Hospital on 15.07.1993 and was operated for acute appendicitis. According to him, the respondent arrived in the hospital and had a quarrel because of which she was forced out of the ward by the hospital staff. The respondent has denied this incident vehemently in her testimony, stating that she took full care of the appellant while he was admitted in the hospital., It is evident from the respective testimonies of the parties that the dispute between them had its genesis in the association of the appellant with Ms. B.S. She admittedly came to be known to the appellant while she was working in the Indian Institute of Statistics, where the appellant himself admits he had an association. Subsequently, Ms. B.S. got appointed in NIEPA, where the appellant was also working. Their intimacy became more while working together, which is evident from the admission of the appellant that he used to take her along with him on official tours and had even taken her to Kaza along with the children. He, while returning from Kaza, went with her and the children to the parents‑in‑law’s house in Patiala. He has also admitted that many times she used to accompany him for various official tours, but has tried to explain it by asserting that she had accompanied him only as Junior Associate., The appellant has denied vehemently that he had any illicit relationship with her, but his own contentions get defeated by his own admission in the petition that she came to live with him in his house in Malviya Nagar. The appellant gave an explanation that she had shifted with him as a governess to take care of the children. According to the appellant, he had paid her Rs.15,000 per month for the job. Interestingly, Ms. B.S. was herself a government employee working in NIEPA and being employed as a governess and being paid Rs.15,000 per month is an explanation which can be only termed as absurd., In this context it would also be pertinent to refer to the testimony of Ms. Bharti, a family friend who deposed that when she visited the house of the appellant in the year 1994‑95, she not only saw Ms. B.S. present in the house maintaining it like a housewife, but the children were addressing her as “mother”., Another material witness examined by the respondent was Surbhi Sarkar, elder sister of Ms. B.S., who also deposed that her younger sister, Ms. B.S., had been residing in the house of the appellant with him since 1994. She also deposed that it was this relationship between the appellant and Ms. B.S. which became a cause of trouble in their family as reflected in the various letters and complaints sent by her father to various authorities. The relationship had perturbed the family a lot., Aside from the admissions made in the petition as well as the testimony by the appellant and other witnesses, there is other overwhelming documentary evidence. The appellant has admitted that while residing in Malviya Nagar, complaints had been made by the neighbours questioning the relationship of the appellant with Ms. B.S. A complaint was made by the neighbours to the police vide Diary No.1966 of 30.11.1994 which is “Mark A” and had been produced by PW3 H.C. Dal Chand. Subsequently, the appellant had sought to explain this complaint by claiming that it was withdrawn vide letter Ex.PW1/R1. The complaint may have been withdrawn subsequently and the appellant may have tried to explain that the neighbours eventually were convinced about his association with Ms. B.S. and had withdrawn their apprehension, but the fact remains that Ms. B.S. admittedly came to reside with the appellant at Malviya Nagar to which there was an objection taken by the neighbours., The second set of documentary evidence, which is revealing about the relationship of the appellant with Ms. B.S., are the complaints written by none other than Mr. N.C.S., father of Ms. B.S., to the Department of NIEPA, the Police, the Delhi Legal Aid Board and other agencies alleging that the appellant was ruining the life of his daughter Ms. B.S. Interestingly, Mr. N.C.S. was present in the Delhi High Court at that time when the testimony of RPW2 Ms. B.S. was recorded at the instance of the appellant, and his testimony was also recorded as CW1. Pertinently, he admitted having written the letter Ex.RW5/1 to NIEPA and Ex.RW8/6 as well as document Ex.RW8/P1 to Delhi Legal Services Authority. Additionally, Ex.RW6/1 and Ex.RW6/2, which are his statements recorded in FIR No.313/94 reveal that Ms. B.S. was made hostile to her family and was being influenced by the appellant. In all these letters and documents, not only had he taken objection to his daughter having an unacceptable friendship with the appellant but also stated that the appellant had misled her and even proposed to marry Ms. B.S. However, in his cross‑examination, he tried to backtrack by asserting that all those complaints were made due to misunderstanding., All these complaints which are contemporary to the incidents happening have been written from 04.03.1994 onwards. It is quite apparent that subsequently, the appellant was able to prevail upon not only Ms. B.S. but also on her father who were examined as RPW‑1 as the witness of the appellant and CW‑1 as the witness by the Delhi High Court, on 31.08.1998., The very fact that the complaints are all admitted by CW1, Mr. N.C.S., clearly corroborates the averments of the respondent about the appellant having developed affection with Ms. B.S. outside his marriage with the respondent. The appellant may have been able to win over the father of Ms. B.S. during the pendency of the divorce proceedings, but the claim of the respondent of appellant having developed a relationship outside the marriage is fully corroborated and supported not only by the oral testimony, but also by the documents., The overwhelming evidence on record reflects that indeed the appellant who got involved with Ms. B.S. since 1994 and left the house in August 1994 was the one who had committed the cruelty upon the respondent. The respondent wife cannot be penalised for making such allegations and protesting about the relationship which have a strong basis and foundation. In fact, she had a justification to complain about the conduct of the appellant and to take any view otherwise would indeed be committing cruelty upon the respondent., It becomes apposite to mention that an FIR No.313/1992 under Section 498A/406 of the Indian Penal Code had been registered against the appellant, his sister and brother‑in‑law and while the sister and brother‑in‑law were discharged at the time of framing of charges, the appellant has been subsequently acquitted vide judgment dated 03.05.2013. However, considering the overwhelming evidence revealing the relationship with Ms. B.S., this acquittal subsequent to the divorce itself cannot be a ground to say that any kind of cruelty had been committed upon him by the respondent. Mere acquittal in a criminal case cannot be a ground to grant divorce., We, in the light of the blatant conduct of the appellant showing scant regard to his matrimonial relationship, are compelled to observe that despite it being a failed marriage of over 40 years, granting divorce would be adding a premium to the wrong acts of the appellant. While human emotions know no bounds and rules, the human sensibilities emanating from the mind should have prevailed for an educated person like the appellant to have reigned his affections for a third person, with scant regard for the respondent who had reposed complete faith by entering into the vows of marriage with him. This is one case where Section 23(1)(a) of the Hindu Marriage Act, 1955, which provides that no person can take advantage of its own wrong, comes into play, in full force., We hereby conclude that the learned Additional District Judge has rightly concluded that it is the appellant who is responsible for acts of cruelty towards the respondent and had rejected the divorce petition., Accordingly, there is no merit in the present Appeal, which is hereby dismissed along with any pending applications, if any.
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Versus Appearance: for the Petitioners for the Respondent(s) No. 1 Date: 02/09/2022, The petitioners are challenging the Agenda/Minute No.2 (Item No.2) of the Resolution passed by the Standing Committee of the Ahmedabad Municipal Corporation, Ahmedabad in its Meeting dated 18.08.2022, which is for closure of slaughter houses situated in the Municipal Areas on 05.09.2022 and 09.09.2022 due to the festival of Jain Religion i.e. Paryushan and Samvatsari, respectively., Heard Party-in-Person Mr. Razaiwala Mohammed Hammad Hussain, Petitioner No.2 herein, on behalf of both the petitioners, at length., It is noted that this matter was taken up for hearing on 30.08.2022 by the Supreme Court of India. After arguing the matter for some time, Mr. Razaiwala has requested for time on that day to place more material on record and at his request, the matter is kept today for further hearing., Today, Mr. Razaiwala has reiterated that he has challenged the Resolution, qua Agenda No.2 (Item No.2) only, passed by the Standing Committee of the Ahmedabad Municipal Corporation, Ahmedabad in its Meeting dated 18.08.2022. He has submitted that the Director General of Police (Police and Maintenance) Gujarat State, Gandhinagar has granted permission for supply of meat/mutton during the Corona Virus Outbreak, as essential food. He has placed on record the copy of the communication dated 01.04.2020 issued by the Director General of Police to all the Police Commissioners regarding the same., At this stage, he has relied upon Article 47 of the Constitution of India in support of his submissions, which is as under: 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health., He has submitted that a similar issue had arisen before the Punjab and Haryana High Court, where interim relief has been granted. He has placed on record the copies of the order passed in CWP-18666-2022 dated 24.08.2022 and 29.08.2022 in support of his submissions., He has submitted that he has taken all the averments in the petition and has relied upon the documents annexed with the petition as well as the documents placed on record today. He has submitted that except the same, he does not want to canvass any further submissions. He has submitted that this petition may be allowed., I have heard Party-in-Person Mr. Razaiwala Mohammed Hammad Hussain for the petitioners at length. I have considered the averments made in this petition. I have also gone through the material on record including the material placed on record today by the petitioner., The present petition is preferred by the petitioners being aggrieved by and dissatisfied with Agenda No.2 (Item No.2) of the Resolution dated 18.08.2022, passed by the Standing Committee of the Ahmedabad Municipal Corporation, Ahmedabad. The translation of the said Agenda/minutes is as under: Urgent Agenda No.2 The proposal of Shri Darshan Jashvantlal Shah with the support of Shri Jayesh Mahendrabhai Trivedi In anticipation of the approval by the Municipal Corporation, it is resolved that due to the Maha Paryushan Parv of the Jain religion during the current year for the period from 24.08.2022 to 31.08.2022, the Slaughter Houses of the Municipality Area be remained closed on 05.09.2022 Dhoop Dasham and on 09.09.2022 Samvatsari due to the Paryushan Parv of the Digambar Jain Samaj. It is made clear that except the above Agenda i.e. Agenda No.2 (Item No.2) of the Resolution dated 18.08.2022, the petitioners have not challenged the other Agendas/minutes of the said Resolution., To deal with the contentions raised by the petitioners, it is required to refer to Articles 19(1)(g), 21, 25, 26 and 51A(g) of the Constitution of India, which are as under: 19. Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx (f) xxx (g) to practise any profession, or to carry on any occupation, trade or business. xxx 21. Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law. 25. Freedom of conscience and free profession, practice and propagation of religion. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I. The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II. In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. 26. Freedom to manage religious affairs. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. 51A. Fundamental duties. It shall be the duty of every citizen of India (a) xxx (b) xxx (c) xxx (d) xxx (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women., Further, keeping in mind the challenge, it is also required to refer to the provisions of Section 466(1)(D)(b) of the Gujarat Provincial Municipal Corporations Act, 1949, which is as under: 466(1)(D)(b) fixing the days and the hours on and during which any market, slaughter-house or stock-yard may be held or kept open for use and prohibiting the owner of any private market from keeping it closed without lawful excuse on such days or during such hours., Considering the submissions made by the Party-in-Person and also considering the above provisions of law, it will be fruitful to refer to the decision of the Hon'ble Supreme Court of India on the identical facts like the present petition, in the case of Hinsa Virodhak Sangh versus Mirzapur Moti Kureshi Jamat & Ors., reported in (2008) 5 SCC 33, more particularly Paras 34 to 38, 71 and 72 thereof., It is relevant to note here that, in the abovementioned judgment, the very Municipal Corporation i.e. Ahmedabad Municipal Corporation has passed the Resolution for closure of the slaughter houses for nine days at that time and the Hon'ble Supreme Court of India has approved that action by observing as under: 34. In this connection, we may now refer to the well known Constitution Bench decision of this Court in State of Madras vs. V.G. Row, 1952 SCR 597, where this Court observed that while determining the reasonable restriction, the Court should consider not only the factors of the restriction such as the duration and the extent but also the circumstances and the manner in which the imposition has been authorized. The Court further observed: \It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an Important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.\ The aforesaid observations have become locus classicus. In the present case we have noticed that the closure of the slaughter house is only for 9 days and not for a considerable period of time. This decision indicates that the restriction is reasonable. A period of 9 days is a very short time and surely the non-vegetarians can become vegetarians during those 9 days out of respect for the feeling of the Jain community. Also, the dealers in meat can do their business for 356 days in a year, and they have to abstain from it for only 9 days in a year. Surely this is not an excessive restriction, particularly since such closure has been observed for many years. 35. In the above observation in State of Madras vs. V.G. Row (supra) mention has been made therein of the things to be seen in judging whether the restriction is reasonable or not, and one important consideration is whether the restriction is disproportionate. In our opinion, there is no disproportionate restriction because the restriction is only for a short period of 9 days. Moreover, in the above observation in V.G. Row's case (supra), it is also mentioned that Courts must act with a sense of responsibility and self-restraint with the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and the majority of the elected representatives of the people have in authorizing the imposition of the restrictions considered them to be reasonable. 36. Judging from that angle mentioned above in V. G. Row's case (supra), which has been consistently followed thereafter, in our opinion the closure of slaughter house cannot be said to be an unreasonable restriction on the writ petitioners' right to do their trade and business of slaughtering animals. 37. In this connection, reference may be made to Om Prakash and others vs. State of U.P. and others, 2004 (3) SCC 402, where, this Court held that a municipal bye-law prohibiting sale of meat, fish and egg in Rishikesh is valid considering the fact that most people in Rishikesh come for religious purposes and members of several communities are strictly vegetarian, and it is such people who come in large numbers to visit Haridwar, MuniKi-Reti are vegetarians. 38. It may be mentioned that the impugned resolutions which have been made under Section 466(1)(D)(b) of the Bombay Provincial Municipal Corporations Act, 1949 amount to a piece of delegated legislation. A piece of delegated legislation is also statutory in character and the only limitation on it is that it should not violate the provisions of the parent statute or of the Constitution. In our opinion, the impugned resolutions of the Corporation do not violate the parent statute or any constitutional provisions. 71. In the present case we have seen that for a long period slaughter houses have been closed in Gujarat for a few days out of respect for the sentiments of the Jain community, which has a sizable population in Gujarat and Rajasthan. We see nothing unreasonable in this restriction. 72. As already stated above, it is a short restriction for a few days and surely the non-vegetarians can remain vegetarian for this short period. Also, the traders in meat of Ahmedabad will not suffer much merely because their business has been closed down for 9 days in a year. There is no prohibition to their business for the remaining 356 days in a year. In a multi cultural country like ours with such diversity, one should not be over sensitive and over touchy about a short restriction when it is being done out of respect for the sentiments of a particular section of society. It has been stated above that the great Emperor Akbar himself used to remain a vegetarian for a few days every week out of respect for the vegetarian section of the Indian society and out of respect for his Hindu wife. We too should have similar respect for the sentiments for others, even if they are a minority sect., It is noted that in the above referred judgment, the Hon'ble Supreme Court of India has relied upon the judgment of the Seven-Judge Constitution Bench in the case of State of Gujarat versus Mirzapur Moti Kureshi Kassad Jamat and Others reported in (2005) 8 SCC 534, wherein the Hon'ble Supreme Court of India has decided several issues relating to the issue involved in the present petition, more particularly in Paras: 41. The message of Kesavananda Bharati is clear. The interest of a citizen or section of a community, howsoever important, is secondary to the interest of the country or community as a whole. For judging the reasonability of restrictions imposed on Fundamental Rights the relevant considerations are not only those as stated in Article 19 itself or in Part-III of the Constitution; the Directive Principles stated in Part-IV are also relevant. Changing factual conditions and State policy, including the one reflected in the impugned enactment, have to be considered and given weightage to by the courts while deciding the constitutional validity of legislative enactments. A restriction placed on any Fundamental Right, aimed at securing Directive Principles will be held as reasonable and hence intra vires subject to two limitations: first, that it does not run in clear conflict with the fundamental right, and secondly, that it has been enacted within the legislative competence of the enacting legislature under Part XI Chapter I of the Constitution. 42. In Municipal Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed Usmanbhai and Anr., (1986) 3 SCC 20, what was impugned before the High Court was a standing order issued by the Municipal Commissioner of the State of Ahmedabad, increasing the number of days on which slaughter houses should be kept closed to seven, in supersession of the earlier standing order which directed the closure for only four days. The writ petitioner, a beef dealer, challenged the constitutional validity of the impugned standing orders (both, the earlier and the subsequent one) as violative of Articles 14 and 19(1)(g) of the Constitution. The challenge based on Articles 14 of the Constitution was turned down both by the High Court and the Supreme Court. However, the High Court had struck down the seven days closure as not \in the interests of the general public\ and hence not protected by Clause (6) of Article 19 of the Constitution. In appeal preferred by the Municipal Corporation, the Constitution Bench reversed the Judgment of the High Court and held that the objects sought to be achieved by the impugned standing orders were the preservation, protection and improvement of live-stock, which is one of the Directive Principles. Cows, bulls, bullocks and calves of cows are no doubt the most important cattle for our agricultural economy. They form a separate class and are entitled to be treated differently from other animals such as goats and sheep, which are slaughtered. The Constitution Bench ruled that the expression \in the interests of general public\ is of a wide import covering public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution. 43. In Workmen of Meenakshi Mills Ltd. and Others v. Meenakshi Mills Ltd. and Anr., (1992) 3 SCC 336, the Constitution Bench clearly ruled (vide para 27) - \Ordinarily any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be a reasonable restriction in public interest.\ Similar view is taken in Papnasam Labour Union v. Madura Coats Ltd. and Anr., (1995) 1 Directive Principles 44. Long back in The State of Bombay and Anr. v. F.N. Balsara, 1951 SCR 682, a Constitution Bench had ruled that in judging the reasonableness of the restrictions imposed on the Fundamental Rights, one has to bear in mind the Directive Principles of State Policy set-forth in Part IV of the Constitution, while examining the challenge to the constitutional validity of law by reference to Article 19(1)(g) of the Constitution., Question - 2 Fundamental Rights and Articles 48, 48-A and 51-A(g) of the Constitution. 48. Organisation of agriculture and animal husbandry. - The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle. 48-A. Protection and improvement of environment and safeguarding of forests and wildlife. - The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. 51-A. Fundamental duties. It shall be the duty of every citizen of India (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. Articles 48-A and 51-A have been introduced into the body of the Constitution by the Constitution (Forty-second Amendment) Act, 1976 with effect from 3-11-1977. These Articles were not a part of the Constitution when Quareshi-I, Quraishi-II and Mohd. Faruk's cases were decided by this Court. Further, Article 48 of the Constitution has also been assigned a higher weightage and wider expanse by the Supreme Court post Quareshi I. Article 48 consists of two parts. The first part enjoins the State to \endeavour to organize agricultural and animal husbandry\ and that too \on modern and scientific lines\. The emphasis is not only on 'organization' but also on 'modern and scientific lines'. The subject is 'agricultural and animal husbandry'. India is an agriculture based economy. According to 2001 census, 72.2% of the population still lives in villages (See- India Vision 2020, p.99) and survives for its livelihood on agriculture, animal husbandry and related occupations. The second part of Article 48 enjoins the State, dehors the generality of the mandate contained in its first part, to take steps, in particular, \for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle\. 49. Article 48-A deals with \environment, forests and wildlife\. These three subjects have been dealt with in one Article for the simple reason that the three are inter-related. Protection and improvement of environment is necessary for safeguarding forests and wildlife, which in turn protects and improves the environment. Forests and wildlife are clearly inter-related and interdependent. They protect each other. 50. Cow progeny excreta is scientifically recognized as a source of rich organic manure. It enables the farmers avoiding the use of chemicals and inorganic manure. This helps in improving the quality of earth and the environment. The impugned enactment enables the State in its endeavour to protect and improve the environment within the meaning of Article 48-A of the Constitution. 55. By enacting clause (g) in Article 51-A and giving it the status of a fundamental duty, one of the objects sought to be achieved by the Parliament is to ensure that the spirit and message of Articles 48 and 48A is honoured as a fundamental duty of every citizen. The Parliament availed the opportunity provided by the Constitution (Forty-second Amendment) Act, 1976 to improve the manifestation of objects contained in Article 48 and 48-A. While Article 48-A speaks of \environment\, Article 51-A(g) employs the expression \the natural environment\ and includes therein \forests, lakes, rivers and wildlife\. While Article 48 provides for \cows and calves and other milch and draught cattle\, Article 51-A(g) enjoins it as a fundamental duty of every citizen \to have compassion for living creatures\, which in its wider fold embraces the category of cattle spoken of specifically in Article 48., In AIIMS Students' Union v. AIIMS and Ors., (2002) 1 SCC 428, a three-Judge Bench of the Supreme Court of India made it clear that fundamental duties, though not enforceable by writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues. In case of doubt, peoples' wish as expressed through Article 51-A can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. The fundamental duties must be given their full meaning as expected by the enactment of the Forty-second Amendment. The Court further held that the State is, in a sense, 'all the citizens placed together' and, therefore, though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is, collectively speaking, the duty of the State., In Mohan Kumar Singhania and Others v. Union of India and Others, 1992 Supp (1) SCC 594, a governmental decision to give utmost importance to the training programme of the Indian Administrative Service selectees was upheld by deriving support from Article 51-A(j) of the Constitution, holding that the governmental decision was in consonance with one of the fundamental duties., In State of U.P. v. Yamuna Shanker Misra and Others, (1997) 4 SCC 7, the Supreme Court of India interpreted the object of writing the confidential reports and making entries in the character rolls by deriving support from Article 51-A(j) which enjoins upon every citizen the primary duty to constantly endeavour to strive towards excellence, individually and collectively., In Rural Litigation and Entitlement Kendra and Others v. State of Uttar Pradesh and Others, 1986 (Supp) SCC 517, a complete ban and closing of mining operations carried on in the Mussoorie hills was held to be sustainable by deriving support from the fundamental duty as enshrined in Article 51-A(g) of the Constitution. The Court held that preservation of the environment and keeping the ecological balance unaffected is a task which not only Governments but also every citizen must undertake. It is a social obligation of the State as well as of the individuals., In T.N. Godavarman Thirumalpad v. Union of India and Others, (2002) 10 SCC 606, a three-Judge Bench of the Supreme Court of India read Article 48-A and Article 51-A together as laying down the foundation for a jurisprudence of environmental protection and held that \Today, the State and the citizens are under a fundamental obligation to protect and improve the environment, including forests, lakes, rivers, wildlife and to have compassion for living creatures\., In State of West Bengal and Others v. Sujit Kumar Rana, (2004) 4 SCC 129, Articles 48 and 51-A(g) of the Constitution were read together and the Supreme Court of India expressed that these provisions have to be kept in mind while interpreting statutory provisions., It is thus clear that faced with the question of testing the constitutional validity of any statutory provision or an executive act, or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition, the Directive Principles of State Policy and Fundamental Duties as enshrined in Article 51-A of the Constitution play a significant role. The decision in Quareshi-I in which the relevant provisions of the three impugned legislations was struck down on the singular ground of lack of reasonability, would have decided otherwise if only Article 48 was assigned its full and correct meaning and due weightage was given thereto and Articles 48-A and 51-A(g) were available in the body of the Constitution., Three propositions are well settled: (i) 'restriction' includes cases of 'prohibition'; (ii) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that right. Reference may be made to Madhya Bharat Cotton Association Ltd. v. Union of India (UOI) and Anr., AIR 1954 SC 634, Krishna Kumar v. Municipal Committee of Bhatapara, (Petition No.660 of 1954 decided on 21st February 1957 by Constitution Bench), Narendra Kumar and Ors. v. Union of India (UOI) and Ors., (1960) 2 SCR 375, The State of Maharashtra v. Himmatbhai Narbheram Rao and Ors., (1969) 2 SCR 392, Sushila Saw Mill v. State of Orissa and Ors., (1995) 5 SCC 615, Pratap Pharma (Pvt.) Ltd. and Anr. v. Union of India and Ors., (1997) 5 SCC 87 and Dharam Dutt v. Union of India, (2004) 1 SCC 712., In Madhya Bharat Cotton Association Ltd. (supra) a large section of traders were completely prohibited from carrying on their normal trade in forward contacts. The restriction was held to be reasonable as cotton, being a commodity essential to the life of the community, and therefore such a total prohibition was held to be permissible. In Himmatbhai Narbheram Rao and Ors. (supra) trade in hides was completely prohibited and the owners of dead animals were required to compulsorily deposit carcasses in an appointed place without selling it. The constitutionality of such prohibition, though depriving the owner of his property, was upheld. The court also held that while striking a balance between rights of individuals and rights of citizenry as a whole the financial loss caused to individuals becomes insignificant if it serves the larger public interest. In Sushila Saw Mill (supra), the impugned enactment imposed a total ban on saw mill business or sawing operations within reserved or protected forests. The ban was held to be justified as it was in public interest to which the individual interest must yield. Similar view is taken in the other cases referred to hereinabove., In the present case, we find the issue relates to a total prohibition imposed on the slaughter of cow and her progeny. The ban is total with regard to the slaughter of one particular class of cattle. The ban imposed by Section 5 is not on the total activity of butchers (kasais); they are left free to slaughter cattle other than those specified in the Act. It is not that the writ petitioner-respondents survive only by slaughtering cow progeny. They can slaughter animals other than cow progeny and carry on their business activity. In so far as trade in hides, skins and other allied things (which are derived from the body of dead animal) are concerned, it is not necessary that the animal must be slaughtered to avail these things. The animal, whose slaughter has been prohibited, would die a natural death even otherwise and in that case their hides, skins and other parts of body would be available for trade and industrial activity based thereon., We hold that though it is permissible to place a total ban amounting to prohibition on any profession, occupation, trade or business subject to satisfying the test of being reasonable in the interest of the general public, yet, in the present case banning slaughter of cow progeny is not a prohibition but only a restriction., It is also fruitful to refer to the following observations made by the Hon'ble Supreme Court of India for the consideration of the facts of the present case, which are as under: 116. Stare decisis is not an inexorable command of the Constitution or jurisprudence. A careful study of our legal system will discern that any deviation from the straight path of stare decisis in our past history has occurred for articulable reasons, and only when the Supreme Court has felt obliged to bring its opinions in line with new ascertained fact, circumstances and experiences. (Precedent in Indian Law, A. Laxminath, Second Edition 2005, p. 8). 117. Given the progressive orientation of the Supreme Court, its creative role under Article 141 and the creative elements implicit in the very process of determining ratio decidendi, it is not surprising that judicial process has not been crippled in the discharge of its duty to keep the law abreast of the times, by the traditionalist theory of stare decisis (ibid, p. 32). Times and conditions change with changing society, and, \every age should be mistress of its own law\ and era should not be hampered by outdated law. \It is revolting\, wrote Mr. Justice Holmes in characteristically forthright language, \to have no better reason for a rule of law than it was so laid down in the time of Henry IV\.
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It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. It is the readiness of the judges to discard that which does not serve the public which has contributed to the growth and development of law (the same source, page 68). The doctrine of stare decisis is generally to be adhered to because well‑settled principles of law founded on a series of authoritative pronouncements ought to be followed. Yet the demands of changed facts and circumstances dictated by forceful factors supported by logic amply justify the need for a fresh look. Sir John Salmond, while dealing with precedents and illustrating instances of departure by the House of Lords from its own previous decisions, states it to be desirable as it would permit the House of Lords to abrogate previous decisions which were arrived at in different social conditions and which are no longer adequate in present circumstances (see Salmond, the same source, page 165). This view has been succinctly advocated by Doctor Goodhart who said: “There is an obvious antithesis between rigidity and growth, and if all the emphasis is placed on absolutely binding cases then the law loses the capacity to adapt itself to the changing spirit of the times which has been described as the life of the law” (the same source, page 161). This very principle has been well stated by William O. Douglas in the context of constitutional jurisprudence: “So far as constitutional law is concerned, stare decisis must give way before the dynamic component of history. Once it does, the cycle starts again” (Essays on Jurisprudence from the Columbia Law Review, 1964, page 20)., Having subjected the restrictions imposed by the impugned Gujarat enactment to the test laid down in the case of N. M. Thomas (supra), we are unhesitatingly of the opinion that there is no apparent inconsistency between the Directive Principles which persuaded the State to pass the law and the Fundamental Rights canvassed before the High Court by the writ petitioners. In view of the above‑mentioned judgments and, more particularly, the resolution, qua Agenda No. 2 (Item No. 2), passed by the Standing Committee of the Ahmedabad Municipal Corporation, Ahmedabad, which can be considered a reasonable restriction permissible for a limited period, it cannot be said that it is violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. Therefore, I do not find any illegality in the impugned resolution dated 18 August 2022, qua Agenda No. 2 (Item No. 2), which is for two days only. I do not think it is fit to exercise the powers under Article 226 of the Constitution of India in favour of the present petitioners. The present petition is meritless and therefore needs to be dismissed at the admission stage., It is noted that the Supreme Court of India has not issued notice in this matter; however, the learned Additional Government Pleader Mister Meet Thakkar appearing for the State Authority, on advance copy, submits that time and again such grievances are raised whenever such a resolution is passed and therefore appropriate cost may be imposed upon the petitioners., Considering the fact that the Party-in-Person is appearing in this matter, I do not find it proper to impose cost upon the petitioners., For the reasons recorded above, the present petition is dismissed with no order as to costs.
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id_1853
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The petitioner is before the Supreme Court of India seeking a direction by issuance of a writ in the nature of mandamus directing the second respondent, Kotak Mahindra Bank, to de‑freeze the account of the petitioner/company held with the bank., Sri Siddharth Suman, learned counsel appearing for the petitioner, and Smt. Shridevi Bhosale Maruti, learned counsel appearing for the first respondent, Narcotics Control Bureau, were heard., The petitioner is a company registered as a startup under the Department for Promotion of Industry and Internal Trade (Startup India Initiative). It claims to be involved in helping professionals up‑skill themselves in software design and to lay a path for better career opportunities for those professionals in the technology industry. The petitioner states that it has been operating as a startup since December 2020, has two directors on the board, and a full‑time team of seven members, and asserts that it conducts its business in accordance with the law., On 14 November 2022, a crime was registered by the first respondent, Narcotics Control Bureau, against one of the directors of the petitioner/company for offences punishable under Section 8(c) read with Sections 20(B)(ii)(A), 23(a), 27, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Following the registration of the crime, the account of the petitioner/company was directed to be frozen. The petitioner sought to operate the account and discovered that it had been debit‑frozen, prompting the filing of the present petition seeking a direction to de‑freeze the account., The learned counsel for the petitioner contended that the petitioner/company is not an accused, that the company holds three accounts with the second respondent, Kotak Mahindra Bank, and that the investigation has concluded. He submitted that the debit‑freezing direction issued by the Investigating Officer to the bank is contrary to law and therefore sought its quashment., The learned counsel for the first respondent, Narcotics Control Bureau, refuted this submission, arguing that an account may be frozen even if the person is not an accused, provided the money trail of the accused leads to funds being deposited into the company's account. She contended that there is a direct link between the account operated by the company and the act of one of the directors, as narcotic substances were received in the name of the director from a foreign post office, and she sought dismissal of the petition., I have given careful consideration to the submissions made by the respective learned counsel and have perused the material on record., The issue does not relate to the merit of the crime alleged against the petitioner but concerns whether the Investigating Officer could have directed the freezing of the company's account without following due process of law. The undisputed facts are that a complaint was registered against one of the directors of the company by the Narcotics Control Bureau on 14 November 2022, the offences alleged are as previously quoted, and the Investigating Officer directed the freezing of the petitioner’s account. Freezing the account of any person linked to the money trail for the aforesaid offences is permissible only under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, specifically Section 68F., Section 68F of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides: 'Seizure or freezing of illegally acquired property. (1) Where any officer conducting an inquiry or investigation under Section 68E has reason to believe that any property in relation to which such inquiry or investigation is being conducted is illegally acquired and such property is likely to be concealed, transferred or dealt with in any manner which will frustrate any proceeding relating to forfeiture of such property, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order or of the competent authority, and a copy of such order shall be served on the person concerned, provided that the competent authority shall be duly informed of any order made under this subsection and a copy of such order shall be sent to the competent authority within forty‑eight hours of its being made. (2) Any order made under sub‑section (1) shall have no effect unless the said order is confirmed by an order of the competent authority within a period of thirty days of its being made. Explanation: For the purposes of this section, transfer of property means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes (a) the creation of a trust in property; (b) the grant or creation of any lease, mortgage, charge, easement, licence, power, partnership or interest in property; (c) the exercise of a power of appointment of property vested in any person, not the owner of the property, to determine its disposition in favour of any person other than the donee of the power; and (d) any transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person.', Section 68F mandates that once a seizure is directed by the Narcotics Control Bureau, it must be communicated to the competent authority, and an order made under sub‑section (1) shall have no effect unless confirmed by the competent authority within thirty days. Thus, the mandate is two‑fold: the seizure or freezing order must be communicated to the competent authority within forty‑eight hours, and the order must be confirmed by the competent authority within thirty days. In the present case, neither requirement has been fulfilled; the Narcotics Control Bureau did not communicate the order to the competent authority, and the competent authority has not approved the seizure within thirty days., Section 68D of the Narcotic Drugs and Psychotropic Substances Act, 1985 defines the competent authority: 'The Central Government may, by order published in the Official Gazette, authorise any Commissioner of Customs, Commissioner of Central Excise, Commissioner of Income‑Tax or any other officer of the Central Government of equivalent rank to perform the functions of the competent authority under this Chapter. The competent authorities shall perform their functions in respect of such persons or classes of persons as the Central Government may, by order, direct.', The learned counsel for the petitioner submitted that the Commissioner of Income‑Tax, Chennai, has been designated as the competent authority under Section 68D, a fact not disputed by the counsel for the first respondent. Therefore, the issue is not a failure of the competent authority to function but a blatant violation of Section 68F and its mandate., In view of the admitted twin violations of Section 68F, the order directing debit freezing of the petitioner’s account lacks legal basis and must be set aside., For the aforesaid reasons, the following orders are made: (i) The writ petition is allowed; (ii) The order/notice Ref‑BM/956982 dated 8 December 2022, annexure‑A, freezing the bank accounts of the petitioner‑company in the second respondent, Kotak Mahindra Bank, bearing numbers 6145157210, 6146012129 and 614935818 with balances of Rs 1,00,775 (Rupees One Lakh Seven Hundred Seventy‑Five Only), Rs 50,078 (Rupees Fifty Thousand Seventy‑Eight Only) and Rs 1,07,230 (Rupees One Lakh Seven Thousand Two Hundred Thirty Only), is quashed; and (iii) The quashment does not preclude the first respondent, Narcotics Control Bureau, from initiating proceedings in accordance with law, if necessary.
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id_1855
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All Manipur Tribal Union, represented by its President Mr. R. K. Ajin, aged about 64 years, son of the late R. K. Lungtung, having its office at Langol Tarung Village, Post Office and Police Station Lamphelpat, Imphal West District, Manipur - 795004. All Tribal Disabled Union (Government Registration No. 259/M/SR/07), represented by its President Mr. Momo Tantanga, aged about 31 years, son of K. S. Angkha, having its registered office at Kabo Leikai, Dewlahland, Post Office and Police Station Imphal, Imphal East District, Manipur. The Joint Coordination Committee on Tribal Rights, represented by its Executive Member Mr. Majarin Phoumei, aged about 67 years, son of the late Chak Andinang Phoumei, having its office at Tuibong Village, Churachandpur District, Manipur - 795128. All Tribal Student Union Manipur (ATSUM) represented by its Secretary of Information and Publicity, Mr. Khaiminlen Doungel, aged about 36 years, son of Mr. Douthang Doungel, having its office at Adimjati Complex, Chingmeirong, Imphal West, Manipur - 795001. All Tribal Student Union Manipur (ATSUM) represented by its Secretary of Rights and Reservation, Mr. Shimthar Jajo, aged about 38 years, son of Silas Jajo, having its office at Adimjati Complex, Chingmeirong, Imphal West, Manipur - 795001., Applicants: Shri Mutum Churamani Meetei, aged about 62 years, son of the late M. Iboton Meetei of Kabo Leikai Dewlahland, Post Office and Police Station Porompat, Imphal East District, Manipur, who is the Secretary of the Meetei (Meitei) Tribe Union, Registration No. 15 of 2022. Shri Puyam Ranachandra Singh, aged about 43 years, son of Puyam Kushumani Singh of Langathel Laikom Bazaar, Post Office and Police Station Thoubal, Thoubal District, Manipur, who is a Member of the Meetei (Meitei) Tribe Union, Registration No. 15 of 2022. Shri Thokchom Gopimohon Singh, aged about 73 years, son of the late Thokchom Somokanta Singh of Keisamthong Laisom Leirak, Post Office and Police Station Imphal, Imphal West District, Manipur - 795001, who is a Member of the Meetei (Meitei) Tribe Union, Registration No. 15 of 2022. Shri Sagolsem Robindro Singh, aged about 66 years, son of S. Amu Singh of Sagolband Khamnam Bazar, Post Office Imphal and Police Station Lamphel, Imphal West District, Manipur - 795001, who is a Member of the Meetei (Meitei) Tribe Union, Registration No. 15 of 2022. Shri Elangbam Baburam, aged about 76 years, son of the late E. Leipakmacha Singh of Keirak Khongnang Leikai, Police Station Kakching, Branch Post Office Keirak, Post Office Kakching, Kakching District, Manipur, who is a Member of the Meetei (Meitei) Tribe Union, Registration No. 15 of 2022. Shri Leihaorambam Projit Singh, aged about 62 years, son of L. Surjit Singh of Sorok Atingbi Khunou Hilghat, Post Office and Police Station Jiribam, Jiribam District, Manipur - 795115, who is a Member of the Meetei (Meitei) Tribe Union, Registration No. 15 of 2022. Shri Thiyam Romendro Singh, aged about 46 years, son of Th. Ibobi Singh of Ningthoukhong Ward No. 5, Ningthoukhong Kha Bishnupur, Post Office and Police Station Bishnupur, Bishnupur District, Manipur - 795126, who is a Member of the Meetei (Meitei) Tribe Union, Registration No. 15 of 2022. Shri Mutum Nilamani Singh, aged about 61 years, son of M. Jadhop Singh of Chingdong Leikai, Post Office and Police Station Jiribam, Jiribam District, Manipur - 795115, who is a Member of the Meetei (Meitei) Tribe Union, Registration No. 15 of 2022., Private Respondents: The State of Manipur represented by the Chief Secretary, Government of Manipur, Babupara, Old Secretariat Complex, Imphal West, Manipur. The Chief Secretary of the Government of Manipur, Babupara, Old Secretariat Complex, Imphal West, Manipur. The Secretary of Tribal Affairs and Hills Department, Babupara, Old Secretariat Complex, Imphal West, Manipur. The Secretary, Ministry of Tribal Affairs, Government of India, Shastri Bhavan, New Delhi - 110001., For the Applicants: Dr. Colin Gonsalves, Senior Advocate assisted by Mr. Wungpam Yangya, Advocate. For the official respondents: Mr. M. Devananda, Additional Advocate General assisted by Ms. Jyotsana, Advocate and Mr. Armananda, Advocate. For the private respondents: Mr. M. Hemchandra, Senior Advocate assisted by Mr. Ajoy Pebam, Advocate and Mr. N. Jotendro, Senior Advocate assisted by Md. Abdul Baqee Khan, Advocate., Date of Hearing: 05 October 2023. Date of Judgment and Order: 19 October 2023. Heard: Dr. Colin Gonsalves, learned senior counsel assisted by Mr. Wungpam Yangya, learned counsel appearing for the applicants; Mr. M. Devananda, learned Additional Advocate General assisted by Ms. Jyotsana, learned counsel appearing for respondents No. 9‑11; Mr. Armananda, learned counsel appearing for respondent No. 12; Mr. M. Hemchandra, learned senior counsel assisted by Mr. Ajoy Pebam, learned counsel; and Mr. N. Jotendro, learned senior counsel assisted by Md. Abdul Baqee Khan, learned counsel appearing for the private respondents., The present application had been filed with a prayer for granting leave to the applicants for filing an appeal against the Judgment and Order dated 27 March 2023 passed by the learned Single Judge of the High Court of Manipur in Writ Petition (Civil) No. 229 of 2023., Dr. Colin Gonsalves, learned Senior Counsel appearing for the applicants submitted that the respondents No. 1‑8 filed a writ petition being Writ Petition (Civil) No. 229 of 2023 before this Court praying, inter alia, for issuing a direction to the Government of Manipur to submit the recommendation in reply to the letter dated 29 May 2013 of the Government of India, Ministry of Tribal Affairs, regarding granting Scheduled Tribe status to the Meetei/Meitei community in the State of Manipur within a stipulated period. The writ petition was disposed of by the learned Single Judge by passing a judgment and order dated 27 March 2023 with the following directions: (i) The writ petition is disposed of. (ii) The first respondent is directed to submit the recommendation in reply to the letter dated 29 May 2013 of the Ministry of Tribal Affairs, Government of India. (iii) The first respondent shall consider the case of the petitioners for inclusion of the Meetei/Meitei community in the Scheduled Tribe list, expeditiously, preferably within a period of four weeks from the date of receipt of a copy of this order, in terms of the averments set out in the writ petition and in the line of the order passed in Writ Petition (Civil) No. 4281 of 2002 dated 26 May 2003 by the Gauhati High Court. (iv) No costs., The learned counsel submitted that the present applicants No. 1‑5, who are the office bearers of various tribal civil society unions, associations and student unions associated with the rights of the tribal community in the State of Manipur, were not parties in the said writ petition. It has been submitted that the judgment and order dated 27 March 2023 passed by the learned Single Judge in Writ Petition (Civil) No. 229 of 2023 has adversely affected the fundamental and constitutional rights of the thirty‑four recognised tribes of the State of Manipur and accordingly, the present application had been filed seeking leave of this Court for allowing the applicants to file an appeal against the said judgment and order., The learned senior counsel submitted that the applicants are aggrieved firstly because if the impugned order is allowed to stand and the Meetei/Meitei community is wrongly granted Scheduled Tribe status, this will adversely affect the existing tribal Scheduled Tribes in employment and education where reservation for Scheduled Tribes exists, and the Meetei/Meitei community, being dominant and advanced politically, economically and educationally, will grab the majority of the Scheduled Tribe reserved seats. Secondly, most of the land in the hills is owned by the tribals; however, the Meetei/Meitei community is determined to grab the land of the tribals and, if granted Scheduled Tribe status, they will enter the hill area in large numbers and attempt to grab the land of the tribals. This attempt to grab the land is also an attempt to grab the petroleum, natural gas, chromite, limestone and other minerals found in the hill areas which belong to the tribals, and as such, tribals will be adversely affected in respect of ownership of the lands in the hills. Thirdly, twenty seats in the Manipur Legislative Assembly are reserved for the tribals in the hill areas and forty seats for the Meetei/Meitei community; if the Meetei/Meitei are given Scheduled Tribe status, being dominant and numerous in population, they will also begin to grab the Scheduled Tribe seats in the hills. To sum up, the impugned order deserves to be quashed because otherwise, financially, educationally and in every other way, the dominant community will grab all the reserved posts and seats in employment and education and political power will shift sharply in favour of the Meetei/Meitei and against the tribals, and finally tribal seats will be lost to the Meetei/Meitei., The learned senior counsel strenuously submitted that in the petition filed before the learned Single Judge, the respondents No. 1‑8 submitted that the Meetei community has been traditionally recognized as a tribe and that if the applicants are not allowed to challenge the judgment of the learned Single Judge, this falsehood will not be exposed and there will be no issue framed before the Supreme Court of India hearing the matter on the merits as to whether the Meetei/Meitei community is a Scheduled Tribe or not. It has also been submitted that none of the documents referred to in paragraph 5 onwards in the writ petition filed by the respondents No. 1‑8 before the learned Single Judge, when carefully pursued, says that the Meetei community is a Scheduled Tribe. If the applicants are not granted leave to file the writ appeal, the completely false declaration on facts made in the petition will go unchallenged and injustice will be done., The learned senior counsel also submitted that the Meetei/Meitei communities are not tribes and have never been recognized as tribes. In fact, they are a very advanced community though some of them may fall within Scheduled Caste or Other Backward Class, and many Meeteis/Meiteis are today taking advantage of Scheduled Caste and OBC caste certificates, which is not permissible in law for a community to claim Scheduled Caste and OBC certificates and thereafter also seek Scheduled Tribe certification., It has been submitted that a perusal of all the documents annexed with the writ petition seeking to justify inclusion in the presidential order miserably failed to show even a single line relating to backwardness and the documents do not establish that the Meeteis were at any stage geographically isolated like tribals, and that the Meeteis were associated with kings and occupied a special and dominant position. The learned senior counsel also submitted that the clamour for Scheduled Tribe status now is not based on backwardness but on the desire of the dominant community to grab the reservation in employment and education and to enter the hill areas which do not allow access to non‑tribals and to grab tribal lands, and that the High Court of Manipur should not allow such mala‑fide intentions to fructify., The learned senior counsel further submitted that the learned Single Judge cannot make an order to the State or Central Government to consider the representations of the Meeteis/Meiteis as no materials have been submitted by the Meeteis/Meiteis to the State or Central Government showing backwardness and that if the materials submitted to the Court have not an iota of evidence relating to backwardness, then there is nothing for the State Government to consider and therefore there was no reason for the learned Single Judge to direct the State or Central Government to consider the representations., The learned senior counsel vehemently submitted that the Supreme Court of India has laid down the principle of law in the case of State of Maharashtra vs. Milind and Others reported in (2001) 1 SCC 4 that courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub‑caste, group or part of a tribe or sub‑tribe is to be included as a Scheduled Tribe in the presidential order. According to the learned senior counsel, the basic mistake made by the learned Single Judge was in directing the State to make a recommendation to the Central Government to include the Meetei/Meitei community as a Scheduled Tribe in the presidential list; the second mistake is the conclusion that the issue of inclusion of the Meetei/Meitei was pending for nearly ten years; and the third mistake was in concluding that the Meetei/Meitei are tribes. The learned senior counsel accordingly submitted that unless leave as sought for by the applicants is granted, they will be left without any remedy to challenge or rebut these points and to redress their grievances., By relying on the judgment rendered by the Supreme Court of India in the case of Smt. Jatan Kumar Golcha vs. Golcha Properties (P) Ltd. reported in (1970) 3 SCC 573, Shanti Kumar R. Canji vs. The Home Insurance Co. of New York reported in (1974) 2 SCC 387 and State of Rajasthan & Others vs. Union of India & Others reported in (1977) 3 SCC 592, it has been submitted by the learned senior counsel that a person who is not a party to the writ petition can prefer an appeal with the leave of the appellate Court and such leave can be granted if the person would be prejudicially affected by the judgment., Mr. M. Devananda, learned Additional Advocate General appearing for the State respondents submitted that the judgment and order dated 27 March 2023 passed by the learned Single Judge cannot in any way affect the rights of the tribals of Manipur as the judgment and order merely directed the State Government to submit a recommendation for inclusion of the Meetei/Meitei community in the Scheduled Tribe list. It has been submitted that the recommendation of the State Government is a prerequisite for initiating the process for inclusion in the Scheduled Tribe list as per the provisions of Article 342 of the Constitution of India and that the process begins at the level of the State Government or the Union Territory, with the Government or Administration seeking the addition or inclusion of a particular community or communities to the SC or ST list. It has also been submitted that the proposal to include or remove any communities from the scheduled list is sent to the Union Ministry of Tribal Affairs, which after examining the proposal sends it to the Registrar General of India and if the Registrar General of India approves the proposal, the same is sent to the National Commission for Scheduled Castes or National Commission for Scheduled Tribes and thereafter the proposal is sent back to the Union Government, which after inter‑Ministerial deliberation introduces it in the cabinet for final approval. The learned Additional Advocate General submitted that the inclusion or exclusion of any community in the SC/ST list comes into effect only after the President gives assent to the Constitution (Scheduled Tribes) Order, 1950 after it has been passed by both the Lok Sabha and Rajya Sabha., Mr. M. Devananda, learned Additional Advocate General further submitted that taking into consideration the lengthy process as mentioned above, it is very clear that the applicants filed the present application without any legal basis and on mere unfounded apprehension, simply to delay the execution of the judgment and order dated 27 March 2023. It has also been submitted that in the present case, the judgment and order of the learned Single Judge dated 27 March 2023 merely directed the State Government to submit a recommendation for initiating the process for inclusion of the Meeteis/Meiteis in the Scheduled Tribe list and not for inclusion of the Meetei/Meitei community in the presidential order by circumventing the constitutional provisions, and as such the writ appeal sought to be filed by the applicants is not maintainable as there is no ground for filing the said appeal. The learned Additional Advocate General accordingly submitted that there is no ground or reason for granting leave to file a third‑party appeal against the judgment and order of the learned Single Judge and as such the present application is liable to be rejected. In support of his contentions, Mr. M. Devananda, learned Additional Advocate General cited the following case laws: (i) Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed & Others reported in (1976) 1 SCC 671; (ii) Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra & Others reported in (2013) 4 SCC 465., Mr. M. Hemchandra, learned senior counsel appearing for respondents No. 1‑8 submitted that the simple case of the private respondents No. 1‑8 is that: (a) In spite of having various records of the status of Meetei/Meitei community as Meetei/Meitei tribes, the Meetei/Meitei tribes had been left out at the time of preparation of the Scheduled Tribes list under the Constitution of India. (b) Thereafter, Meetei/Meitei tribes approached the authorities concerned for many years but failed to initiate the process for inclusion in the Scheduled Tribes list. (c) Finally, the Ministry of Tribal Affairs, Government of India sent a letter dated 29 May 2013 to the State Government requesting submission of a recommendation from the State Government. (d) Since the last ten years, the letter dated 29 May 2013 has been lying at the Office of the State Government without any attention. (e) Thereafter, the private respondents No. 1‑8 have no alternative except to ventilate their grievance through the High Court of Manipur under Article 226 of the Constitution of India. (f) The private respondents No. 1‑8 prayed as many as eight prayers but considering the legal impediment of the other players and also considering the consent of the parties who are going to send the recommendation in reply to the letter dated 29 May 2013, the learned Single Judge of the High Court of Manipur was pleased to pass the judgment and order dated 27 March 2023. (g) The learned Single Judge of the High Court of Manipur simply directed to send the recommendation in reply to the letter dated 29 May 2013 as the same was pending since the last ten years and the word recommendation is a technical term mentioned by the Government of India in its procedure for inclusion or exclusion of tribal status in the list of Scheduled Tribes under the Constitution of India. (h) The case of the private respondents No. 1‑8 is nothing but to complete the process from the side of the State Government and let the authority concerned decide on its merits either for inclusion or rejection. The learned senior counsel submitted that in view of the above facts of the case, it is clear that no rights or interests of the applicants have been adversely affected or jeopardized by the judgment and order of the learned Single Judge., Mr. M. Hemchandra, learned senior counsel submitted that after the inclusion of the thirty‑four tribes of Manipur in the list of Scheduled Tribes under the Constitution of India, many other communities in India have also been included in the list of Scheduled Tribes and in such cases, the applicants never objected by saying that they are aggrieved; however, only when the Meetei/Meitei community approached the authority demanding their legitimate rights, the applicants raised objection by saying that they are aggrieved parties, which is not acceptable at all. The learned senior counsel submitted that there is no iota of truth in the claim made by the applicants that the tribals are the owners of the lands and natural resources in the hill areas of Manipur. In fact, the State Government is the real owner of the lands in the hill areas of Manipur and the Union of India is the sole owner of all natural resources such as petroleum, natural gas, chromite, limestone and other minerals found in the soil of India. Accordingly, the grievances raised by the applicants are without any basis and cannot be accepted., The learned senior counsel further submitted that the applicants have failed to demonstrate how any of their rights have been affected by the directions given by the learned Single Judge and how the process for inclusion of the Meetei/Meitei community in the Scheduled Tribe list directly or indirectly affects their rights in any way, and as such the applicants are not an aggrieved party in the present case and the present application is wholly misconceived and not tenable in the eyes of law. In support of his contentions, the learned senior counsel cited the following case laws: (i) Ayaaubkhan Noorkhan Pathan vs. State of Manipur & Others reported in (2013) 4 SCC 465; (ii) Ashok Singh & Others vs. State of Uttar Pradesh & Others reported in (2018) 9 SCC 723; (iii) V. N. Krishna Murthy & Another vs. Ravikumar & Another reported in (2020) 9 SCC 501; (iv) My Palace Mutually Aided Co‑operative Society vs. B. Mahesh & Others reported in 2022 Live Law (SC) 698., We have heard at length the rival submissions advanced by the learned counsel appearing for the parties and also examined the materials available on record. Even though the arguments of the learned counsel appearing for the parties are only in respect of the present application for granting leave to file a third‑party appeal, the learned counsel have addressed this Court extensively with regard to the merits of the case also. In view of the nature of the arguments and counter‑arguments advanced by the learned counsel appearing for the parties touching extensively upon the merits of the case, we are of the view that it will be just and proper to consider the connected appeal on merit for a just and proper adjudication of the issues raised by the learned counsel after examining the materials available in the record of the connected writ appeal., In the case of A. Subash Babu vs. State of Andhra Pradesh reported in (2011) 7 SCC 616, it has been held by the Supreme Court of India at paragraph 25 of the judgment that the expression ‘aggrieved person’ denotes an elastic and elusive concept and that it cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which the contravention is alleged, the specific circumstances of the case, the nature and extent of the complainant’s interest and the nature and extent of the prejudice or injury suffered by the complainant., In the present case, the main grievance raised by the applicants is that they will be prejudicially affected if they are not given a chance to have a say or to raise objection in the matter of granting Scheduled Tribe status to the Meetei/Meitei community and that their rights and interests will be prejudicially affected unless they are given an opportunity to challenge the judgment and order passed by the learned Single Judge by filing a writ appeal and that they will be precluded from attacking the correctness in granting Scheduled Tribe status to the Meetei/Meitei community in other proceedings. Taking into consideration the nature of the arguments advanced by the learned counsel appearing for the parties which need to be examined and decided on the basis of the materials available in the connected writ appeal and writ petition and taking into consideration the nature of the grievances raised by the applicants, we are inclined to grant leave sought by the applicants in the present application. Accordingly, the present application is allowed. The Registry is directed to number the connected writ appeal and list it for admission hearing if the same is otherwise found to be in order. With the aforesaid directions, the present application is disposed of.
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id_1856
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W.P.(C).No.9162 of 2015 dated 10 January 2024. A Muslim marriage is conducted in accordance with their personal law and thereafter registered under the Kerala Registration of Marriages (Common) Rules, 2008 (hereinafter referred to as Rules 2008). Subsequently, if the husband pronounces talaq in accordance with his personal law, he can remarry without removing the entry in the register of marriage maintained under Rules 2008, because his personal law permits more than one marriage in certain situations, but that divorced Muslim lady cannot remarry till the marriage entry as per Rules 2008 is removed by approaching a competent court of law. The question is whether any other remedy exists to remove the entry made as per Rules 2008. If a law‑abiding Muslim couple registered their marriage as per Rules 2008 and subsequently the husband pronounces talaq, can the registration of marriage as per Rules 2008 be a burden to the Muslim woman alone? When such discrimination is pointed out, is it not the duty of the Kerala High Court to step in? These are the points to be decided in this case., Marriage between the third respondent and the petitioner was solemnized on 30 December 2012 at Busthaniya Shadi Mahal, Vatakara, and the marriage was registered before the first respondent as Registration No.44/2013 on 17 January 2013. The certificate of marriage is Annexure P1. The marital relationship did not last long. Consequently, the marriage was dissolved by the third respondent by pronouncing talaq from Doha, Qatar in the presence of witnesses on 30 October 2014 and it was communicated to the father of the petitioner on 2 November 2014. Annexure P2 is the talaq issued by the third respondent. Hence, in view of Annexure P2, the marriage was dissolved with effect from 30 October 2014. The third respondent provided maintenance for the iddah period and future maintenance as evidenced by Annexure P3 agreement. The divorce was duly intimated to Thalasseri Mahal Khazi and the divorce certificate issued by him is Annexure P4. After the dissolution, the petitioner approached the first respondent with an application praying to make necessary entries in the marriage register regarding the dissolution. Annexure P5 is the application and Annexure P6 is the acknowledgment showing receipt of Annexure P5. However, the first respondent, despite the application, failed to make the necessary entries. When the petitioner enquired about the reason, the first respondent stated that the Rules 2008 do not contain any provision authorising such entry. The petitioner contends that this stance is illegal and that the absence of a provision cannot be a reason for refusing entry. Consequently, this writ petition is filed with the following prayers:, To issue a writ of mandamus or any other writ or order directing the first respondent to record the fact of divorce as revealed from Annexure P5 against the earlier entry of marriage in the register. To issue any other order or direction to the second respondent to issue necessary direction to the first respondent if need be. Any other order or direction that the Kerala High Court deems fit and proper under the circumstances of the case., The learned counsel appearing for the petitioner and the learned Government Pleader were heard., It is an admitted fact that the marriage between the petitioner and the third respondent is registered under Rules 2008. It is also an admitted fact that there is no provision under the aforesaid Rules to register a divorce. Annexure P2 is the talaq pronounced by the third respondent and Annexure P3 is the agreement executed by the third respondent with the father of the petitioner about the payment of legal dues to the petitioner. The talaq was intimated to the Thalasseri Mahal Khazi as evidenced by Annexure P4. The petitioner submitted Annexure P5 application before the first respondent for making necessary entries in the records maintained in the register about the divorce, but there is no provision in Rules 2008 to record the divorce. Then what is the remedy? In such a situation, I am of the considered opinion that the principle in the general power under Section 21 of the General Clauses Act, 1897 can be adopted. Section 21 provides that where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye‑laws is conferred, that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, to add to, amend, vary or rescind any notifications, orders, rules or bye‑laws so issued., Section 21 of the General Clauses Act says that where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye‑laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, to add to, amend, vary or rescind any notifications, orders, rules or bye‑laws so issued. The petitioner is a divorced wife. According to the petitioner, the third respondent pronounced talaq as evident by Annexure P2 and it was informed to the authority concerned, which issued a divorce certificate as evident by Annexure P4. In such a situation, a divorced woman shall not be handicapped by the registration of marriage under Rules 2008. It is true that there is no power to record the divorce in Rules 2008, but I am of the considered opinion that such power is inherent to the authority concerned and is ancillary to the power to register the marriage. This point is considered by this Court in Jithin Varghese Prakash v. Registrar of Marriage [2019 (3) KLJ 603]., Simply because a person registered the marriage as per Rules 2008, she need not be dragged to a court of law for making entries in the marriage register regarding the divorce if she obtained the same as per her personal law. If there is the power to register the marriage, the power to record the divorce is also inherent and ancillary to the authority who registers the marriage, if there is a divorce under the personal law. A divorced Muslim woman need not be sent to a court of law for recording the talaq if it is otherwise in order as per the personal law. The officer concerned can record the talaq without insisting on a court order. I think that there is a lacuna in Rules 2008 in this regard. The legislature should consider the same. The registry will forward a copy of this judgment to the Chief Secretary of the state to do the needful in accordance with law., Therefore, this writ petition can be disposed of directing the first respondent to consider Annexure P5 with notice to the third respondent and, if the third respondent concedes the talaq, the consequential entry shall be made in the Register of Marriage. If there is any dispute regarding the validity of the divorce, the registrar need not record such divorce in the register without an order from the competent court. Accordingly, this writ petition is disposed of in the following manner: The first respondent is directed to consider Annexure P5 and pass appropriate orders with notice to the third respondent in the light of the observations in this judgment, as expeditiously as possible, at any rate within one month from the date of receipt of a stamped certified copy of this judgment. The petitioner will produce a certified copy of this judgment before the first respondent for compliance. The registry will forward a copy of this judgment to the Chief Secretary, State of Kerala, for the reason mentioned in Paragraph 6.
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PCR No.28/2020 c/w. PCR No.29/2020 and Common Complainant: India Awake for Transparency, 24 Desika Road, Mylapore, Chennai 600004, represented by P. Sadanand Goud (by Sri R. Subramanian, Advocate). Common Accused: 1. Azim Hasham Premji, Survey No.75, 133, 135/1, 136/1 No.574 Doddakannelli village, Sarjapur Road, Bengaluru-560035. 2. Mrs. Yaseem Azim Premji, Survey No.574, Doddakannelli village, Sarjapur Road, Bengaluru-560035. 3. Pagalthivarthi Srinivasan, No.524, 16th Cross, Indira Nagar II Stage, Bengaluru-560038. 4. M/s. Azim Premji Trust represented by its Trustee Azim Premji Trustee Company No.134, next to WIPRO Corporate Office, Doddakannelli, Sarjapur Road, Bengaluru 560035. The complainant India Awake for Transparency, represented by its volunteer P. Sadanand Goud, has filed two complaints against the common accused No.1 to 4 for offences punishable under Section 13(1)(d) of the Prevention of Corruption Act and Sections 409 and 120B read with Section 34 of the Indian Penal Code., The short facts leading to the present two complaints are as follows. Accused No.1 to 3 were the directors in common of three companies namely Vidya Investment and Trading Company Private Limited (Vidya), Regal Investment and Trading Company Private Limited (Regal) and Napean Trading and Investment Company Private Limited (Napean), hereinafter referred to as the 'three companies'. According to the complainant, the three companies were formed in 1974 with the first accused and his mother as directors. Subsequently the first accused and his wife, and the second accused became directors. The third accused became director in 2009., It is stated that accused No.1 to 3 were directors of the said companies in a fiduciary capacity and acted as agents of the companies. The three companies were registered under the Companies Act 1956 and were dissolved by orders of the Honourable High Court of Karnataka on account of a merger proposed by the accused. The transaction underlying the merger approval is under prosecution in Special Criminal Case No.69/20 before this court., It is stated that accused No.4 is a private discretionary trust and its trustee is M/s. Azim Premji Trustee Company Private Limited, a company wholly owned by the first accused; only the first accused and his wife are its directors. The fourth accused is neither a charitable nor a public trust., From 1980, the shareholding of the three companies was such that each company owned 50 percent of the other two companies. The complainant states that three partnership firms—Hasham Traders, Pazim Traders and Zash Traders—each held a 35 percent stake in the three companies. No person other than the three companies was an equity shareholder; consequently the accused No.1 to 4 are not equity shareholders of the three companies. If all three companies were wound up simultaneously, there would be no claimant for the combined assets, and the assets would become bona vacantia and vest in the Union of India under Article 296 of the Constitution., The specific case of the complainant is that accused No.1 to 3, taking advantage of their position as directors, conspired in February 2013 to transfer equity shares of Wipro Ltd. valued at Rs.12,281 crore (value as on the date of complaint Rs.16,590 crore) to the fourth accused trust without consideration. The gift amounted to Rs.5,807 crore, representing the 35 percent share of the three companies, thereby vesting public property assets with the fourth accused., The facts alleged in PCR No.29/2020 are identical to those in PCR No.28/2020. According to the complaint, the accused jointly acted in December 2010 to remove equity shares of Wipro Ltd. worth Rs.9,260.18 crore (value as on the date of removal Rs.12,061.91 crore) held by the three companies and transferred them to the fourth accused trust., The complainant alleges that the three companies had net assets worth Rs.51,549 crore, which are wholly assets of the Union of India. These assets were vested with the fourth accused trust, owned by Azim Premji Trustee Company Private Limited controlled by accused No.1 and 2, without consideration, for offences committed in 2010, 2013 and 2014. It is alleged that the three companies have been owner‑less since 1980., It is submitted that the fourth accused trust, owned by a private trust controlled by accused No.1 and 2, fraudulently acquired assets worth Rs.9,260 crore and Rs.12,281 crore of the three companies, constituting criminal breach of trust punishable under Section 409 of the Indian Penal Code and criminal misconduct under Section 13(1)(d) of the Prevention of Corruption Act., These two complaints were filed on 22 June 2020. After hearing the counsel for the complainant at length, the Honourable High Court of Karnataka, by order dated 28 August 2020, posted the matter for recording the sworn statement. The sworn statement of the complainant was recorded on 23 September 2020. After considering the facts of the complaint and the sworn statement, the court must consider whether sufficient material exists to proceed against the accused for the alleged offences., It is a well‑settled principle that at this stage the court must satisfy itself on the averments made in the complaint, taken on their face value, to determine whether a case for the alleged offences exists and, if so, issue summons to the accused under Section 204 of the Criminal Procedure Code. The complaint alleges that the three companies—Vidya, Napean and Regal—are managed by accused No.1 to 3 as directors and that they do not hold any shares in the companies. The shareholding pattern is such that each company owns 50 percent of the other two companies, with no external shareholders., The complainant alleges that the total assets of the three companies are worth Rs.51,549 crore. Under company law, a company is a legal entity capable of holding property and can own another company. The three companies formed a group with interlocked shareholding and were managed by common directors accused No.1 to 3, who, as non‑shareholder directors, were bound to discharge their duties in a fiduciary capacity without any ownership interest., If the three companies were liquidated, the surplus assets would vest in the Union of India under Article 296 of the Constitution, as there would be no claimant. Consequently, no part of any profit, dividend or surplus would vest on accused No.1 to 3 or any person connected with them. By piercing the corporate veil, the assets would be deemed owner‑less and would escheat to the Union., The complainant submits that accused No.1 to 3 created the fourth accused trust as a private discretionary trust on 21 April 2010, wholly owned by accused No.1 and 2, who are its directors. Immediately after creating the trust, shares of Wipro Ltd. were gifted in December 2010 from the three companies, valued at Rs.9,260 crore, the subject matter of PCR No.29/2020. In PCR No.28/2020, a gift of Rs.12,281 crore of Wipro Ltd. shares in February 2013 from the three partnership firms, in which the three companies were 35 percent stakeholders, is alleged. The offence was committed prior to the amendment to the Prevention of Corruption Act effective 26 July 2018. The complainant further alleges that the offences fall under criminal breach of trust, criminal conspiracy, punishable under Section 409 and Section 120B of the Indian Penal Code and Section 13(1)(d) of the Prevention of Corruption Act., In a company, equity shareholders are the owners; upon liquidation, the persons entitled to the surplus after discharge of all claims are considered the owners. If all three companies are liquidated simultaneously, there would be no claimant for the surplus, which would therefore be appropriated to the State exchequer under Article 296 of the Constitution., As per Section 2(b) of the Prevention of Corruption Act, public duty means a duty in the discharge of which the State, the public or the community at large has an interest. The complainant submits that accused No.1 to 3 were discharging public duties as directors of the three companies. Explanation to Section 2(b) defines the State to include an authority or body owned, controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act 1956., As per Section 2(c)(viii) of the Prevention of Corruption Act, a public servant means any person who holds an office by virtue of which he is authorized or required to perform any public duty. Accordingly, the complainant contends that the two cases fall under the definitions of Sections 2(b) and 2(c)(iii)(viii)(ix) of the Prevention of Corruption Act., The three companies were promoted in 1974, owned by the first accused and his mother until 1980, after which they ceased to be shareholders. The companies were co‑owned by each other, making them owner‑less when taken together. The three companies had common management and held shares of Wipro Limited directly and through subsidiary and partnership firms. In 1980, the first accused and his mother transferred their shares, after which each company owned 50 percent of the other two, leaving no external shareholders., The learned advocate for the complainant relied upon the Apex Court decision in Manish Trivedi v. State of Rajasthan (2014 (14) SCC 420), which held that the Prevention of Corruption Act widens the scope of 'public servant' to any person holding an office by virtue of which he is authorized or required to perform a public duty. The Apex Court in State of Gujarat v. Mansukhbhai (2020 SCC Online SC 412) held that under Section 2(c) the emphasis is on the public duty performed, not on the position held. In CBI v. Ramesh Gelli (2016 (3) SCC 788), the Court held that the chairman of a private bank is a public servant. Accordingly, the complainant submits that the present case falls within the ambit of 'public servant' and the accused were performing public duty., As per the allegations in PCR No.28/2020, the quantity of shares gifted by the three companies was decided in common so that after the gift each company retained an identical 187,666 shares as reflected in the accounts as on 31 March 2011. Similarly, the gifts made by each of the three partnership firms in February 2013 involved an identical quantity of 98,509,000 shares transferred in each of the three companies., In pursuance of orders passed by this court on 27 January 2020 in PCR No.2/2018, 3/2018 and 4/2018, the case was registered against accused No.1 to 3 as Special Criminal Case No.69/2020. Aggrieved, the accused filed PCR No.28/2020 and PCR No.29/2020, Criminal Petition Nos.1634/2020, 1729/2020, 1496/2020, 1499/2020 and 1500/2020 before the Honourable High Court of Karnataka, Bengaluru. The facts of the private complaints were almost similar. By order dated 15 May 2020, the Honourable High Court dismissed the petition filed by the accused under Section 482 of the Criminal Procedure Code and confirmed the order passed by this court., The High Court observed that at the date of amalgamation of the three companies, the equity shareholdings were interlinked, meaning ownership of assets vested exclusively with the three companies and not with accused No.1 to 3. Accused No.1 to 3 represented the transferor companies as directors, not as owners, and the fourth accused company is wholly owned and controlled by the private trust formed by accused No.1 and 2, with accused No.1 to 3 as the only directors of the fourth company., The Court further held that the three financially robust companies, of which accused No.1 to 3 were directors, were amalgamated with the fourth, a loss‑making company, resulting in huge assets of the transferor companies being transferred to the fourth company without any consideration. This mechanism effectively transferred ownership and control of the assets to accused No.1 to 3, falling within the mischief of Section 409 of the Indian Penal Code., The Court noted that a shareholder is separate from the company and that accused No.1 to 3 were neither owners nor shareholders of the three companies. It is necessary to ascertain the persons and purpose behind setting up such a corporate vehicle on the guise of amalgamation. The entire transaction was improper, constituting a breach of legal obligations, and the corporate veil must be pierced., The High Court observed that the transaction was contrived to acquire the valuable assets of the transferor companies under the pretext of amalgamation. Had the transferor companies been wound up, their assets would have passed to legitimate shareholders or, in their absence, to the Union as bona vacantia. The allegations show that accused No.1 to 3 misused their fiduciary position to transfer assets to the fourth accused, wholly owned by the private trust controlled by accused No.1 and 2. The Court held that the allegations prima facie attract the ingredients of offences under Section 409 read with Section 34 and Section 120B of the Indian Penal Code, warranting prosecution., It is alleged that accused No.1 to 3, as directors discharging public duty, committed criminal misconduct as public servants under the Prevention of Corruption Act and criminal breach of trust under the Indian Penal Code. The complainant submits that at the date of filing and cognizance, accused No.1 to 3 had ceased to be public servants; therefore, sanction under Section 19 of the Prevention of Corruption Act is not required. Moreover, they are not covered by Section 19(1)(a), (b) or (c) of the Act, and no authority is competent to remove them. Section 197 of the Criminal Procedure Code is not applicable to offences under Section 409 and Section 120B read with Section 34 of the Indian Penal Code. Since Section 13(1)(d) was in force at the time of the offence, the accused must be prosecuted for that offence, which arose before the amendment effective 26 July 2018. The complainant has filed an application before the Honourable High Court of Karnataka for recall of the merger sanction., The complainant has also filed an affidavit supporting the allegations, producing documents such as the board resolution dated 1 July 2015, financial statements of the companies as on 31 March 2010, 31 March 2011 and 31 March 2013, the trust deed, the Bombay Stock Exchange record of the 2013 gifts, the financial statement of the fourth accused trust, and annual returns for 2011‑13. At this stage these documents are prima facie sufficient to proceed against the accused for the alleged offences., It is well settled that while issuing process, the court's satisfaction is confined to whether a prima facie case is made out against the accused. At this stage the court need not assess the sufficiency of evidence to frame charge or secure conviction. From the materials placed on record and the sworn statement, the court finds that the complainant has made out a prima facie case against accused No.1 to 4. The accused, as directors, were entrusted with the property of the companies and dishonestly misappropriated and transferred the assets to the fourth accused trust in furtherance of a criminal conspiracy. The complaint discloses elements of criminal misconduct. The court concludes that the accused were performing public duty and therefore are public servants. Sufficient material exists to proceed against the accused in both complaints for offences punishable under Section 13(1)(d) of the Prevention of Corruption Act and Sections 409 and 120B read with Section 34 of the Indian Penal Code., Therefore, acting under Section 204 of the Criminal Procedure Code, the office is directed to register two separate Special Cases against accused No.1 to 4 in PCR No.28/2020 and PCR No.29/2020 for offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and Sections 409 and 120B read with Section 34 of the Indian Penal Code. The complainant is directed to file a list of witnesses, if any, within seven days from the date of this order. The original order shall be kept in PCR No.28/2020 and the copy shall form part of the record in PCR No.29/2020. Issue summons to accused No.1 to 4, returnable by 28 February 2022. Signed by the Additional City Civil & Sessions Judge & Special Judge (Prevention of Corruption Act), Bengaluru.
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Reserved on 20 July 2023 and pronounced on 22 August 2023. The appellant, through Mister Ranjit Kumar Dubey and Mister Piyush Nagpal, Advocates, versus the respondent, through Mister Praduman Kumar Aggarwal, Advocate., The appellant husband filed the present appeal against the judgment dismissing his divorce petition on the ground of cruelty and desertion under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1956, vide order dated 14 February 2019 of the learned Principal Judge, Family Court. The petitioner and the respondent wife were married according to Hindu customs and rites on 15 February 2002 and two children were born on 23 November 2003 and 16 July 2006 respectively. The appellant asserted that soon after the marriage the respondent behaved improperly, fought routinely and abused family members by addressing them as dogs and calling the women, his mother and other ladies in the family as bitches. She went to her parental home after a month of the marriage, returned after a month and started claiming separate residential accommodation. She again went to her parental home with her brother on 2 August 2002 and came back only after much persuasion by the appellant and his parents., The appellant further narrated that from time to time the respondent left the matrimonial home but was brought back with cajoling and convincing. He claimed that when he went to the respondent's parental home on 15 September 2002 with his friend, they were ill‑treated and humiliated. He also claimed that he and his friend Bablu, on the invitation of Shri Mahavir, brother of the respondent, attended the marriage ceremony of Urmila, the respondent's elder sister, but were neglected and ill‑treated by the respondent and her family members, being told they were uninvited guests and asked to leave immediately., It was claimed that the daughter was born on 23 November 2003 in the parental home but the appellant was not informed. He learned of the birth on 2 December 2003 when he called the respondent's house and the younger sister, Ram a, threatened him not to visit or else he would be beaten up. The appellant and his family met the respondent's family and village elders, reconciled the differences and the respondent rejoined the matrimonial home. The situation remained peaceful for about two months, but in July 2005, when the appellant was not at home, the police were called to enquire about a possible fight. The respondent made a false allegation of a quarrel with the appellant. On 22 July 2005 he was called to Police Station Sarojini Nagar where, in the presence of the respondent's parents, she stated that she was not willing to reside with the appellant. The matter was resolved by the appellant's father promising money and a shop to enable the appellant to start a new business., The appellant claimed that on one occasion the respondent made a false allegation of rape against the father‑in‑law. Upset with the conduct of the appellant and respondent, the father issued a disclaimer notice in the newspaper Statesman, disowning the appellant and expelling him from all his properties., The appellant claimed that the respondent did not allow him to run the shop properly and, despite being given separate accommodation, her behaviour did not change; she started calling her friends and relatives to their separate accommodation., The appellant further claimed that there were regular fights and proceedings under Section 107 and Section 151 of the Criminal Procedure Code were initiated by the Sub‑Divisional Magistrate on three occasions. In addition, the respondent lodged FIR No. 421/2007 under Sections 498A, 406 and 34 of the Indian Penal Code against the appellant., The appellant asserted that he was being subjected to cruelty by the respondent who left the matrimonial home on 2 August 2002 without any cause. He therefore claimed divorce on the grounds of desertion and cruelty., In her written statement the respondent gave a different version. She alleged that soon after her marriage she was harassed by the appellant and his family members who demanded cash and dowry. Her jewellery was taken away by the mother‑in‑law who did not allow her to wear it on occasions and festivals. She was ill‑treated and abused by the appellant and his family and, because of their cruel behaviour, she was compelled to return to her parental home. On repeated apologies she occasionally rejoined, but the conduct of the appellant and his family members did not improve, making it difficult for her to live in the matrimonial home., The appellant and his family members intended to throw her out of the matrimonial home. Left with no option, she filed Suit No. 291/2007 in which the appellant and his family members were restrained from dispossessing her forcibly from the shared household. She was also compelled to file a petition under Section 12 of the Protection of Women from Domestic Violence Act, wherein the appellant was directed to provide her with a separate residence in the same house and to pay Rs 5,000 per month for household expenses. In compliance, she was given a separate room for her residence., The respondent denied that she habitually left the matrimonial home without the appellant's consent or knowledge. She claimed that it was the harassment and ill‑treatment by the appellant and his family that compelled her to leave., In support of his contention, the appellant husband examined himself as PW‑1 and two witnesses, Ravinder Singh Gehlot (PW‑2) and Shri Lakshmi Chand (father of the appellant), and exhibited documents (Ex. PW‑1/A and PW‑2/A). The respondent wife examined herself as RW‑1 and her mother, Shrimati Chand Kaur, as RW‑2, and exhibited a number of documents (Ex. RW‑1/1 to Ex. RW‑1/16)., The learned Principal Judge, Family Court considered the evidence of the parties and concluded that although there was some turmoil in the matrimonial life, the specific incidents proved that the husband was subjecting the wife to cruelty. The appellant and his family members may have been acquitted under Sections 498A, 406 and 34 of the Indian Penal Code, but the onus for proving the averments in the criminal case is different from that in civil proceedings and mere acquittal cannot be a ground to hold that the respondent was not subjected to cruelty. The alleged attempt to rape the respondent also did not inspire confidence. Consequently, the appellant was not able to prove any act of cruelty. Although the respondent had left the matrimonial home on 2 August 2002, it could not be held that it was without any reason. Moreover, the requisite period of two years had not elapsed at the time of filing the petition, so the ground of desertion for divorce was not available. The divorce petition was therefore dismissed., Aggrieved by the dismissal of the divorce petition, the present appeal has been preferred., The main grounds for challenging the impugned order are that the evidence has not been appreciated in accordance with law, the impugned judgment is based on conjecture and surmise, and it contradicts precedents where similar facts were held to amount to cruelty and divorce was granted., Submissions were heard., The divorce has been sought on the ground of cruelty. While physical cruelty is visible and easy to comprehend, mental agony is also recognised as part of cruelty and, once established, is a valid ground for divorce. The contours of mental cruelty were defined in V. Bhagat v. D. Bhagat (1994) 1 Supreme Court Cases 337, wherein the Honorable Supreme Court held that mental cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1956 can be broadly defined as conduct that inflicts mental pain and suffering on the other party such that it becomes impossible for that party to live with the other., In the present case, the respondent wife deposed that when she visited her matrimonial home on 5 March 2002, the appellant's father‑in‑law, with an intention to establish a physical relationship with her, dragged her into a room and attempted to commit rape in the presence of the appellant's mother‑in‑law and grandmother‑in‑law. It is peculiar that the respondent did not file any case against her father‑in‑law and the scandalous allegations were dropped midway. The allegations appear false as multiple rounds of parties went to the police station but the incident never found any mention., A police complaint dated 11 August 2007 was filed by the respondent, leading to registration of FIR No. 421/07 under Sections 498A, 406 and 34 of the Indian Penal Code against the appellant and his family members. All the accused, including the appellant and his family members, were acquitted by judgment dated 29 November 2017 of the Learned Mahila Court, South District, as the prosecution failed to prove its case., The Supreme Court in Mangayakarasi v. M. Yuvaraj (2020) 3 Supreme Court Cases 786 held that unsubstantiated allegations of dowry demands or other allegations made against the husband and his family expose them to criminal litigation. If such allegations are found to be unwarranted, the act of the wife may form the basis for the husband to allege that mental cruelty has been inflicted on him, and a petition for dissolution of marriage on that ground may be appreciated., The Supreme Court in Ravi Kumar v. Julmidevi (2010) 4 Supreme Court Cases 476 categorically held that reckless, false and defamatory allegations against the husband and his family members lower their reputation in society and amount to cruelty. Similar observations were made by the coordinate bench of this court in Rita v. Jai Solanki 2017 Supreme Court Cases OnLine Del 9078., During the trial the allegations were not established, as held by the order of the Learned Mahila Court, South District, and amount to a clear and categorical character assassination of the appellant and his family members., It is not under challenge that criminal proceedings under Sections 107 and 151 of the Criminal Procedure Code were initiated against the parties. A police station is a source of mental harassment and trauma each time a person is required to visit it, like a Damocles sword hanging over his head, not knowing when a case would be registered against him and he would be arrested. The respondent had done everything to entrap the appellant and his family in the criminal case. Such conduct of making false allegations and constant threat of being summoned to the police station severely impacts mental balance and constitutes cruelty., It is admitted that FIR No. 421/2007 under Sections 498A, 406 and 34 of the Indian Penal Code was registered and the appellant and his family members were acquitted after trial. In the respondent's examination‑in‑chief she stated that while she was at her maternal home she received calls from her mother‑in‑law demanding an air‑conditioner and cash of Rs 5 lakhs, and on 25 July 2003 the mother‑in‑law asked for expensive gifts and clothes for the Teej festival., On the aspect of desertion under Section 13(1)(ib) of the Hindu Marriage Act, it is a fact that the respondent did not return to the matrimonial home despite the appellant's efforts to bring her back. The respondent could not justify her refusal to cohabit, and her refusal is sufficient to establish desertion by her., It is an admitted fact that the parties have not lived together since 2007, a period of almost seventeen years. The Supreme Court in Naveen Kohli v. Neelu Kohli (2006) 4 Supreme Court Cases 558 held that once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can be presumed that the marriage has broken down. The court should endeavour to reconcile the parties; however, if the breakdown is irreparable, divorce should not be withheld. Preservation of an unworkable marriage that has long ceased to be effective would be a source of greater misery for the parties., A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour that bring the institution of marriage into disrepute. When there has been a long period of continuous separation, it may be fairly surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. Refusing to sever that tie does not serve the sanctity of marriage and shows scant regard for the feelings and emotions of the parties. The Family Court ought to have visualised that preservation of such a marriage is totally unworkable and would be a greater source of misery for the parties. In the instant case, not granting a decree of divorce would be disastrous for the parties., In Samar Ghosh v. Jaya Ghosh (2007) 4 Supreme Court Cases 511 the Supreme Court held that no uniform standard can be laid down for guidance, yet it enumerated instances of human behaviour relevant to cases of mental cruelty. When there has been a long period of continuous separation, it may be fairly concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. Refusing to sever that tie shows scant regard for the feelings and emotions of the parties and may lead to mental cruelty. When a marriage sours, the vows taken at the time of marriage become a casualty, and the resulting hurt, hatred and bitterness give rise to mental trauma and cruelty to one or both parties., We conclude that in the present case the parties have been living separately for seventeen years, there is no chance of reconciliation, and the long separation, false allegations, police reports and criminal trial have become a source of mental cruelty. Any insistence on continuing the relationship would only inflict further cruelty. The marital discord has reached a point where there is a complete loss of faith, trust, understanding and love, and the parties cannot be reasonably expected to live with each other any longer., The appeal is accordingly allowed and the marriage between the appellant and the respondent is dissolved by decree of divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1956. Each party shall bear its own costs.
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(Judgment reserved on 20.06.2023) (Judgment delivered on 13.07.2023) Family Court of Raipur No. 300 of 2018 Smt. Priya Sharma, Wife of Sanjit Sharma, aged about 22 years, Resident of Care of Mahendra Sharma, Professor Colony, Sector‑3, Sadak No. 3, near New Golden Public School, Raipur, Tehsil and District Raipur, Chhattisgarh. Appellant versus Sanjit Sharma, Son of Basant Tripathi, aged about 28 years, Resident of Sikshak Colony, near Gayatri Convent School, Danganiya, Raipur, Tehsil and District Raipur, Chhattisgarh, Husband, Respondent. For the Appellant: Ms. Fouzia Mirza, Senior Advocate with Mister Navin Shukla, Advocate. For the Respondent: Mister Shashank Thakur and Ms. Priyanka Rai Mishra, Advocates. Honourable Justice Goutam Bhaduri, Judge and Honourable Justice Sanjay Kumar Jaiswal, Judge. Per Justice Goutam Bhaduri, Judge., The instant appeal is against the order dated 07.12.2018 passed by the First Additional Principal Judge, Family Court, Raipur in H.M.A. No. 665 of 2017 whereby the application filed by the respondent husband for grant of decree of divorce under section 13(1)(1‑a) of the Hindu Marriage Act, 1955 was allowed. The wife is in appeal before the Family Court of Raipur., The parties were married on 05.06.2015. Thereafter, they went for their honeymoon to Singapore and returned on 16.06.2015. The husband stated in his plaint that his father was in a Government job, as such he was working at Dhamtari and used to visit Raipur. It was pleaded that the wife insisted that she did not want to stay with the in‑laws nor serve them. The visit of the husband’s parents was not accepted by the wife and she objected on the ground that her house was not a dharmashala for anyone who wanted to come and she repeatedly disliked their arrival time. She insisted that the husband stay apart from his parents and look after her own parents as the house was in her parents’ house. When the wife made the applicant aware of such thoughts, he clarified that he could not leave his parents as he was the only son and it was his responsibility to take care of them. Consequently, she picked quarrels on trivial issues with the husband and his parents and misbehaved with the in‑laws whenever they visited Raipur. It is stated that on 27.05.2016 the wife left the matrimonial house after a quarrel with the husband and mother‑in‑law and went to her maternal house, thereafter she did not return and was living separately., The husband further pleaded that he and his parents made several attempts to save the marriage but the wife remained adamant on the condition that if he left his parents then only there would be conversation. It is also stated that the husband had booked a hotel on 05.06.2017 to celebrate the marriage anniversary and went to the house of the non‑applicant along with his friend Tarang to bring her, but she stated that she would not stay with him unless he broke the relationship with his parents and therefore refused to come. When all the efforts made by him went in vain, a report was made on 16.06.2016 against the wife to the Superintendent of Police, Raipur and Mahila Thana, Raipur stating that he was ready and willing to keep his wife and requested them to make his wife understand. Further, on 27.06.2016 an application was filed under section 9 of the Hindu Marriage Act before the Family Court for restitution of conjugal rights with the wife and, pursuant to such proceedings, counselling took place wherein the wife refused to stay with him. Thereafter, on 05.08.2016, the wife got a case registered in the police station vide Crime No. 192/2016 against her husband and in‑laws for the offence punishable under section 498‑A of the Indian Penal Code with an allegation that dowry had been demanded, based on which a criminal case is pending before the Junior Metropolitan Family Court. The wife also filed an application on 06.08.2016 under section 125 of the Criminal Procedure Code, claiming maintenance. Eventually the application was filed by her seeking divorce under section 13 of the Hindu Marriage Act in August 2016 which was subsequently dismissed at the joint request of husband and wife in November 2017 but when all the efforts failed, the application was filed seeking divorce., The wife filed a reply wherein she denied all the averments and instead stated that the mother‑in‑law and father‑in‑law along with sister‑in‑law started making demands and sarcastic comments on the wife for demand of dowry and that Rs. 10 to 20 lakhs was expected to be paid as dowry. The wife further states that having not fulfilled the demand of dowry, the dispute further aggravated and she was put to torture. However, since she wanted to save her marriage, she continued but eventually on 27.05.2016 she was abused, assaulted and ousted from the house and was forced to stay at her maternal house. The wife further stated that the husband extended threat to her life and thereafter, on false and fabricated averments, the application was filed seeking divorce., The learned Family Court, on the basis of pleadings, framed the issues as to whether the wife had treated the husband with cruelty and, to prove the facts, the husband examined himself as Plaintiff Witness 1 and one Taran Kumar Tamrakar as Plaintiff Witness 2 whereas the wife examined herself. The learned Family Court, after evaluating the entire facts and evidence, passed a decree in favour of the husband under section 13 of the Hindu Marriage Act, therefore the instant appeal is by the wife., The counsel for the appellant submits that, though all the adverse allegations were made which have not been proved, except the bald allegations, it is stated that she is alleged to have left on 27.05.2016 whereas despite booking of a hotel on 05.06.2016 on the occasion of the marriage anniversary, the allegation that the wife did not join is completely falsified and if she had left on 27.05.2016, how could she refuse to join on 05.06.2016. He further submits that as per the plaint averments and the statements, the father of the husband by virtue of his job was staying at Dhamtari which is at a certain distance from Raipur; therefore, looking to the distance between Dhamtari and Raipur, the wife’s statement that she did not want to stay with the in‑laws is a completely contradictory statement. Learned counsel went through the statement of the husband to submit that his mother and father used to visit Raipur on holidays, therefore it can be inferred that they were not residing at Raipur where the appellant and respondent were residing. With respect to booking a hotel to celebrate the marriage anniversary, it is stated that no evidence is on record to show that the hotel was booked. It is further stated that the allegation was levelled against the wife that she misbehaved with mother‑in‑law and father‑in‑law, but both of them having not been examined, the best evidence was withheld. It is stated that the dispute started for demand of dowry, for which a report was made and it is an admitted fact that till date the case is pending against the respondent. Therefore, the contention of the wife that she was subjected to torture is well established as no acquittal has been effected till date. It is further stated that even to prove cruelty, certain facts are required to be established and even the lodging of FIR would not ipso facto make out an offence of cruelty. Reliance is placed on (1999) 3 SCC 620 and (2013) 5 SCC 226 and it is submitted that the judgment and decree of the trial Court is, therefore, required to be interfered with., The respondents submit that the evidence would show that the husband tried to save the marriage for one long year and even the application was filed under section 9 for restitution of conjugal rights, which would show the intention of the parties. It was further submitted that the wife was not forced to leave the house and even the statement of Plaintiff Witness 2 would show that on the occasion of the marriage anniversary, the hotel was booked to celebrate the event but the wife refused to join the celebration. The reply of the wife would show that they were living with the parents and they were not alone. It is further stated that the wife expressed her firm opinion during the counselling wherein she often stated that she does not want to stay. However, at other points of time she wanted to stay and she was not a school‑going kid. Such state of mind would also amount to cruelty. Therefore, the judgment of the trial Court is well merited and does not call for any interference., We have heard learned counsel for the parties and have also perused the records., The husband has stated that on 27.05.2016 the wife herself left the house and thereafter, the husband booked the hotel on the marriage anniversary on 05.06.2017. There is no evidence on record except the statements of Plaintiff Witness 1 and Plaintiff Witness 2 that such hotel was booked which shows the intention of the husband. If the hotel had been booked for the marriage anniversary, it could have been proved by adducing evidence to show the payment thereof. In paragraph 5, the husband stated that his father used to stay at Dhamtari whereas in a subsequent paragraph it is stated that the wife did not want to stay along with the in‑laws. The appellant and respondent were residing at Raipur after the marriage. Therefore, if the father of the husband was residing at Dhamtari, which is at a considerable distance from Raipur, then such statement of the husband becomes contradictory. The statement of the husband also stood firm by Plaintiff Witness 2. In examination‑in‑chief, it is stated that since his father was in a Government job, he was residing at Dhamtari and during holidays sometimes they used to come to Raipur for one or two days. Consequently, the fact that the husband projected that the wife never wanted to stay with the in‑laws appears to be contradictory. The husband has produced a document which is a report to the police (Exhibit P.2) the reading of which would show that the wife refused to stay with the in‑laws. The document Exhibit P.3 is a proceeding of counselling. Reading of it would show that the case was fixed for remediation by the parties. Counselling between the parties could not happen and she stated that under the pressure of any kind of conditions, she does not want to settle., It is obvious that if any terms and conditions are put forth which have not been stated by the husband, it is not expected that the wife should be treated as hired chattel or a bonded labour to stay under the conditions imposed by the husband. Further, the document of counselling held in the month of July 2016 would show that on account of threat to life received by the wife, she refused to stay along with the in‑laws and in the counselling it is stated that she did not want to stay with the husband. If the wife apprehends such a life threat and does not want to stay under such threat or conditions which are normal, then it is not expected that forcibly she would be made to stay at her in‑laws’ place and thereafter wait for damage to be done, then to cure the same. The application filed by the wife seeking divorce under section 13A is marked as Exhibit P‑9. Reading of it would show that all physical and mental abuses have been stated for the reason that she was subjected to torture for demand of dowry. The order sheet of such divorce proceeding which was at the behest of the wife, marked as Exhibit P‑10, shows that efforts of counselling were carried out, but it did not happen. The order sheet of 17.11.2017 would show that the wife did not further want to prosecute her application for divorce and on her statement the same was dismissed. Therefore, the intention of the parties would show that eventually she did not prosecute the proceeding despite the fact that the husband was absent on a particular date. The wife could have pressed for ex parte proceedings, but she did not. This also shows the state of mind of the wife., In the statement of the wife, she admits the fact that she cannot stay with her husband and reconciliation was not possible. She has categorically denied the suggestion that she forced her husband to stay at her parental home. In the statement she stated that she wanted to restore her marriage. During the course of arguments before this Court, an affidavit has been filed which shows that on a report being made by the wife for demand of dowry, Crime No. 192/2016 was registered for the offence under section 498‑A and section 34 of the Indian Penal Code and the trial is pending wherein the husband and family members were inculpated. She has further stated in the affidavit that yet another case under the Protection of Women from Domestic Violence Act is also pending vide Case No. 987/2017 which is currently pending. There is no rebuttal to this fact., The main allegation of the husband is that the wife insisted him to stay apart from his parents and misbehaved with them. The parents of the husband were not examined before the trial Court. No plausible explanation exists for the same. If the wife was residing with the in‑laws under one roof and if she committed misbehaviour with the in‑laws and husband as alleged by the husband which triggered the cruelty, then the husband could have produced evidence as it cannot be presumed by a mere bald statement of the husband that his parents were subjected to torture by the wife. The statement of the wife would show that she refused to stay under the terms of the husband. The allegations also exist that she was subjected to torture for demand of dowry immediately after the marriage. The said allegation eventually converted into a report for which the crime was registered and trial is pending. There is no plausible explanation by the husband respondent as to what is the outcome of such proceeding pursuant to the report made by her. Under the circumstances, when the wife refused to join the husband, reasonable reasons exist., The statement of the husband would show that pursuant to the report on 05.08.2016, a criminal case is pending and nothing has been brought before us to show what has happened in that criminal case and whether any acquittal has been recorded and if the charges have been framed in such criminal case, prima facie the submission made by the wife would be accepted that for the reasons stated in her complaint, she was forced to stay away which cannot be amounted to desertion or cruelty; instead, the conduct of the husband would show that he himself has misbehaved with the wife which is uncalled for. The husband cannot be allowed to take advantage of his own deeds and looking to the nature of allegations which have been stated by him except the trivial facts, it appears that no severe allegations have been made against the wife and in view of the decision of the Supreme Court in Neelam Kumar v. Dayarani (2010) 13 SCC 298 granting decree of divorce will lead to giving someone the benefit of his/her own misdeeds. The Court further held that no decree of divorce can be granted unless a person seeking divorce proves cruelty on the basis of pleadings and evidence. In the instant case, the burden of proving cruelty has not been discharged properly by the husband who sought decree of divorce on the ground of cruelty. Therefore, grant of decree of divorce on the ground of cruelty appears to be unsustainable. Accordingly, we are of the view that the judgment and decree passed by the learned Family Court is liable to be set aside., With respect to permanent alimony, the affidavit filed by the wife shows that the husband is working as Assistant Grade‑III in the Directorate of Public Education, Raipur and is drawing a monthly salary of Rs.34,000 apart from other immovable properties. The affidavit further shows that in proceedings under section 125 of the Criminal Procedure Code, she was granted maintenance of Rs.6,000 per month. It appears that presently the wife has no source of income. Considering the present market rates and inflation and to further avoid multiplicity of proceedings, we deem it appropriate that Rs.10,000 per month be granted as monthly maintenance to the wife henceforth. Accordingly, the husband shall pay an amount of Rs.10,000 as monthly maintenance of the appellant wife. The deduction shall be made from source and shall be paid to the account of the wife., It is made clear that as and when salary is reciprocally increased, the amount of maintenance shall also be increased proportionally to the extent of increase of percentage in future salary, which the wife would be entitled to receive., In the result, we allow the appeal and set aside the judgment and decree passed by the trial Court. A decree be drawn accordingly.
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Criminal Original Petition No. 18261 of 2021 and Criminal Miscellaneous Petition Nos. 10016 and 10017 of 2021 M. R. Sivaramakrishnan, Petitioner; State represented by Sub Inspector of Police G3, Kilpauk Police Station, Kilpauk, Chennai-600010; Thi Lagavathy, Respondents., Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, praying to quash the final report filed in Criminal Case No. 159 of 2017 pending on the file of the Metropolitan Magistrate, Additional Mahila Court, Egmore, Chennai. For the Petitioner: Mr. S. Rajendrakumar for M/s. Norton and Grant. For the Respondents: Mr. A. Damodaran, Additional Public Prosecutor; Mrs. R. Vaigai; Mr. A. Arun., This Criminal Original Petition has been filed seeking to call for the records pertaining to Criminal Case No. 159 of 2017 pending on the file of the Metropolitan Magistrate, Additional Mahila Court, Egmore, Chennai and to quash the proceedings., As per the prosecution case, on 30 April 2016 at about 8.15 p.m., the de facto complainant reached her house; at 9.00 p.m., her mother and sister came home; the accused, who resides in the adjacent house, came out and parked his bike in a manner that blocked the exit from the de facto complainant's house; when the de facto complainant and her sister came out of the house and tried to find a way, the accused came and started abusing them for having touched his bike; he abused the de facto complainant in filthy language and threatened that she should not proceed with the pending civil case filed by her; the driver of the de facto complainant's sister, who heard the noise, came for their rescue and he was also threatened by the petitioner; the occurrence was recorded on an iPad and the recordings were submitted along with the complaint., On the basis of the complaint, the case was registered as Crime No. 465 of 2016 at Kilpauk Police Station for offences under Sections 341, 294(b), 323, 506(i) of the Indian Penal Code and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002., The learned counsel for the petitioner, the learned Additional Public Prosecutor for the first respondent, and the learned counsel for the second respondent were heard., The learned counsel for the petitioner submitted that the de facto complainant and the petitioner are close relatives and share a common pathway, and that there is already a civil suit pending. He further submitted that to attract an offence punishable under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002, the occurrence must have taken place in a public place; the materials on record show that the occurrence took place inside the house, not in a public place. The attention of the Metropolitan Magistrate, Additional Mahila Court, Egmore, Chennai was drawn to the judgment of this Court in Anbazhagan v. State represented by Inspector of Police, Pallikaranai Police Station, Kancheepuram District [CDJ 2012 MHC 2168], where it was held that a private dwelling house is not a place covered by Section 4., The Court held that to attract offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998, the offence must have taken place at a place specifically listed in the section. Section 4 reads: 'Penalty for harassment of woman – whoever commits or participates in or abets harassment of woman in or within the precincts of any educational institution, temple or other place of worship, bus stop, road, railway station, cinema theatre, park, beach, place of festival, public service vehicle or vessel or any other place shall be punished with imprisonment for a term which may extend to three years and with fine which shall not be less than one thousand rupees.' The Court, by its order dated 25 October 2010 in Criminal Original Petition No. 13501 of 2010 in Gouresh Mehra v. State, held that the words 'any other place' in Section 4 are to be read ejusdem generis. The Act, originally enacted on 30 July 1998, was intended as a measure to eradicate eve‑teasing in public places. The Court considered it reasonable to hold that Section 4 was meant to deal with offences occurring in the places specified or places of like nature., The learned counsel for the second respondent submitted that the object of the special Act is to prevent harassment and it does not matter where the offence took place. In support, the Court cited Basheer Ahamed and others v. State, represented by the Inspector of Police, W13, All Women Police Station, Washermenpet Circle, Chennai‑21 [2006 (4) CTC 374], where Section 4 was interpreted to impose penalty for harassment of woman in any place, with a fine of not less than ten thousand rupees., The counsel for the petitioner referred to the phrase 'or any other place' in Section 4 and argued that it should be read in consonance with the preceding specific places. He also cited State of Karnataka v. Kempaiah, 1998 Crl.L.J. 4070, where a similar principle was applied. However, it is found that Section 3 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998 specifically prohibits harassment of woman at any place, and the preamble states that harassment of woman in any place in the State of Tamil Nadu is prohibited. When read conjointly, Sections 3 and 4 indicate that 'any place' includes wherever the occurrence took place., It is reliably learned that the charges have already been framed in this case before the petition was filed and the trial has commenced. A few witnesses have been examined on the side of the prosecution. Apart from the technical interpretation of Section 4, there is no other argument advanced by the petitioner regarding the allegations of the second respondent and the charges. Even if it were assumed that Section 4 requires the occurrence to be in a public place, the harassment of a woman remains an offence punishable under Section 354 of the Indian Penal Code, and the Court is not precluded from punishing the accused for any other cognizable offence., The second respondent states that the occurrence took place at a common pathway and not inside the house of either the petitioner or the de facto complainant. Only after the witnesses are examined and the accused is tried can the exact location be ascertained. Since there are sufficient materials on record to charge the accused for the offences under Sections 341, 294(b), 323, 506(i) of the Indian Penal Code and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002, and the charges have been framed, it is not an appropriate stage to call for the records or to quash the proceedings. The petitioner may raise his points as a defence during the trial., In view of the above reasons, this Criminal Original Petition stands dismissed. Considering the long pendency of the matter, the Metropolitan Magistrate, Additional Mahila Court, Egmore, Chennai is directed to complete the trial and dispose of Criminal Case No. 159 of 2017 within three months from the date of receipt of a copy of this order. Consequently, the connected Miscellaneous Petitions are closed.
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Full text of the keynote address delivered by the Honorable Chief Justice of India Shri Justice N V Ramana at the presentation of Red Ink Awards by the Mumbai Press Club, Wednesday, 29 December 2021, online, 19:30 hours. Shri Gurbir Singh, Chairman, Mumbai Press Club; Shri Siddharth Bhatia, President, Mumbai Press Club; Shri Prem Shankar Jha, veteran journalist; Ms Frederike Siddiqui; and other recipients of Red Ink awards in diverse categories were present. My dear journalist friends, ladies and gentlemen, Namaskar., It gives me immense pleasure to be here with you at the Red Ink Awards for Excellence in Journalism, to celebrate outstanding contributions by journalists in various categories. This initiative by the Mumbai Press Club, which was first started in 2011, is praiseworthy. The city of Mumbai has been at the forefront of protecting freedom of speech and expression. It has produced great patriots, freedom fighters, human‑rights activists and journalists of great professional integrity. It is therefore apt that the Mumbai Press Club adds to the city’s rich legacy through this award function. I would like to congratulate all those who are being honoured today. There is no doubt that a healthy democracy can thrive and survive only with a fearless and independent press., For that, journalists like you need to grow in number. As someone who started his professional career as a journalist, I can understand your difficulties and struggles. Speaking truth to power and holding up a mirror to society is an immense responsibility that is extremely difficult to fulfil. There is enormous pressure and stress upon you. In the contemporary world, performing your duty as a journalist is akin to dancing on a razor's edge. You are on your feet for long hours, constantly on call and working. Holidays are few and far between and finding time to spend with family is difficult. The stress on your family is also immense. The wages are not very encouraging. Women, particularly beyond metros, still find it difficult to gain a foothold in the profession. Those who are serving in conflict zones are willing to risk their lives. Those on regular beats are also no longer safe. Some powerful persons—political leaders, bureaucracy, mafia of all shades and those on the wrong side of the law—are uncomfortable with a professional journalist. As a result, you keep receiving unpleasant and disturbing messages. I know it is not easy for you and your families to deal with such threats., Another worrisome trend is the concerted effort to bracket journalists into a particular category. I can imagine how painful it is. Yet, it is an extremely satisfying profession to pursue. It is often said that the legal profession is a noble profession. I can state that the journalist's job is as noble and is an integral pillar of democracy. Like the legal professional, a journalist also needs to have a strong moral fibre and moral compass. Your conscience is your guide in this profession. The freedom of the press is a valuable and sacred right enshrined in the Indian Constitution. Without such freedom, there cannot be discussion and debate essential for the growth of a democracy. There can be no flow of information that the public requires, and that a democracy demands., The profession is vastly different from what it was when I was a journalist for a brief period. All things change – this is inevitable. As the world around us evolves, so too has the media profession and journalism. Unless you are willing to evolve and change, you will stagnate and be left behind. Now the profession demands specialists. Earlier, one reporter could be deputed to report on diverse subjects. However, the nuances of reporting contemporary news in specific fields require specialisation. Law reporting, for example, might require a person to be knowledgeable about precedents, legal history and court procedure. The resourceful media houses in Delhi have their specialist legal editors covering the proceedings of the Supreme Court of India. In other Indian‑language media and small media houses, the regular political reporter doubles up as legal reporter whenever the necessity arises. To inform readers and viewers accurately, the media needs to invest in specialists. I think it might be necessary for journalists' unions to organise training camps and orientation programmes for journalists, similar to what is done for judges., Another major change is that, apart from the traditional print media, you now also have digital news media platforms and social‑media reporting. This has changed the entire profession. Certain aspects of this transformation are for the better – there is now more information available to people which is easily accessible. At the same time, these transformations have also resulted in issues that are worrying. Nowadays, everything is subject to reporting. Every moment is available to the scrutiny of millions as things get reported twenty‑four hours a day, seven days a week. This places enormous pressure not only on the person being reported about, but also on the journalist doing the reporting. In the race for ratings, the important journalistic tenet of verification before publishing is not being followed, leading to incorrect reporting. Social media amplifies that incorrect news in a matter of seconds. Once published it is difficult to take back. Unlike print and electronic media, it is almost impossible to hold social‑media platforms such as YouTube accountable even after they host derogatory and defamatory content that can ruin careers and lives. Media professionals will have to voluntarily come forward with solutions for such a menace. I advise all of you to follow the principles of natural justice before making adverse comments against someone who is not in a position to defend himself., Another trend that I witness in reporting nowadays is the seepage of ideological stances and biases into news stories. Interpretation and opinion are colouring what should be factual reports. News mixed with views is a dangerous cocktail. Connected to this is the problem of partial reporting, of cherry‑picking facts to give a particular colour. For instance, select portions of a speech are highlighted out of context to suit a certain agenda. Nothing can be more lethal to democracy than the deadly combination of confrontational polity and competitive journalism. Tragically, they feed on each other. History is witness to this hard truth. Allowing yourself to be co‑opted by an ideology or the State is a recipe for disaster. Journalists are like judges in one sense. Regardless of the ideology you profess and the beliefs you hold dear, you must do your duty without being influenced by them. You must report only the facts, with a view to give a complete and accurate picture. As the famous United States reporter Walter Cronkite said – I quote: \We all have our likes and our dislikes. But when we're doing news – when we're doing the front‑page news, not the back page, not the op‑ed pages, but when we're doing the daily news, covering politics – it is our duty to be sure that we do not permit our prejudices to show. That is simply basic journalism.\ Unquote., Another issue that has gained prominence recently is linked to what is called the attention economy. In the hope of grabbing eyeballs, the headlines given for news reports are catchy but misleading. The headline is often unreflective of the actual content of the report. It is interpretative and imaginary. The headlines are then shared widely on social media and become the news, while the content is forgotten. I can empathise with the pressures journalists are operating under. Experience and reflections suggest that media organisations run by independent and exclusive trusts and by companies that are only into the business of news are still in a position to ward off the pressures of various kinds to a great extent., The freedom of the press is a sacrosanct constitutional right. From the very beginning, the Supreme Court of India has upheld the freedom of the press as an important facet of our Constitution, from Sakal Papers and R. Rajagopal to Anuradha Bhasin. However, this freedom comes with an enormous responsibility that must be borne by every individual who is part of the journalistic enterprise – journalists, editors and management. As Justice Frankfurter of the United States Supreme Court once said, \The freedom of the press is not an end in itself but a means to the end of achieving a free society.\ As the Chief Justice of India, I am restrained from commenting on specific issues that may be under judicial consideration. Let me simply say that the judiciary is a robust pillar. Despite all the constraints, it is working to further constitutional goals. The recent trend to sermonise about judgments and villainise judges needs to be checked. The media must have belief and trust in the judiciary. As a key stakeholder in democracy, the media has the duty to defend and protect the judiciary from motivated attacks by evil forces. We are together in the mission of democracy and in promoting national interest. We have to sail together., Coming back to the event organised today, I am glad to see journalists who uphold and represent the highest standards of journalistic ethics being awarded. The recognition given to them and their work is an important symbol of the standard to be achieved. Their example must be followed by all in the profession. I again congratulate all the awardees. I would like to take a few moments to congratulate Mr Prem Shankar Jha, who has received the Lifetime Achievement award. Mr Jha has had a long and distinguished career. His reputation for hard work, the highest ethical standards and intellectual rigour is unparalleled in the field. He is an inspiration to journalists and other professionals everywhere. I would also like to pay my respects to the late Danish Siddiqui. He was a man with a magical eye and was rightly regarded as one of the foremost photo‑journalists of this era. If a picture can tell a thousand words, his photos were novels. War‑time correspondents have always had the most difficult and risky job. His unfortunate passing in Afghanistan again brings to the fore the issue of sufficient safety protocols and protections for journalists in conflict zones. His spouse Ms Frederike Siddiqui joined us online a while ago. My condolences to his family, colleagues and friends. I would also like to take a few moments to pay tribute to all journalists who lost their lives while reporting from the ground during this pandemic. Their reporting was integral for highlighting issues and bringing much‑needed attention to the plight of our citizens. I thank them for their service., I look forward to your work in the coming year. I hope that you continue to fulfil your all‑important constitutional task with passion and commitment. With honest, hardworking and ethical journalists like you, the democratic republic of India will continue to progress and achieve new heights.
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Vimal Umeshchandra Jha, Applicant, versus State of Maharashtra, Respondent. Navnath Narayan Gole, Intervenor. Vimal Umeshchandra Jha, Applicant, versus State of Maharashtra, Respondent. Mr. Subhash Jha, in behalf of Law Global Advocate, Advocate for Applicant. Shrimati J. S. Lohokare, Additional Public Prosecutor for the State/Respondent. Mr. Hemant Ingle, in behalf of Sugat P. Ingle, Advocate for Intervenor. (Through video conferencing)., The Applicant is seeking his release on bail in connection with Criminal Report No. 137/2021 registered with Kharghar Police Station, Navi Mumbai, under sections 323, 364-A, 365, 387, 506 read with section 34 of the Indian Penal Code., Heard Mr. Subhash Jha, learned counsel for the Applicant; Shrimati J. S. Lohokare, learned Additional Public Prosecutor for the State; and Mr. Hemant Ingle, learned counsel for the Intervenor., The Applicant was arrested on 05/04/2021 in the early morning hours. However, there is a dispute as to the exact date of arrest. According to the Applicant, he was taken into custody on the evening of 03/04/2021 and was illegally detained on 04/04/2021., The investigation is still in progress. The Applicant has preferred Writ Petition No. 1840 of 2021 before the Division Bench of the Bombay High Court, which is still pending. By order dated 19/05/2021, the investigation was transferred to the State Criminal Investigation Department. This order was passed by the Division Bench in that writ petition. Mr. Jha, learned counsel for the Applicant, submits that the writ petition remains pending before the Division Bench of the Bombay High Court., The FIR is lodged by the first informant, Navnath Narayan Gole, who states that he owns three companies: Ishakrupa Shipping Logistics India Private Limited, Gurukrupa Metal Mart, and Aryan Mines and Minerals, engaged in import, export and customs clearance. It is mentioned in the FIR that in November 2020 he became acquainted with the Applicant, who was an advocate specializing in Directorate of Revenue Intelligence and Narcotics Control Bureau cases. In May 2020, the owners of M/s J. M. Industry lodged a complaint against the informant, his wife and two staff members at MIDC Police Station, Ahmednagar, vide Criminal Report No. 329/2020 under sections 420 and 120-A of the Indian Penal Code. The informant was arrested on 27/01/2021 in that connection by the Economic Offences Wing, Ahmednagar. The informant’s wife and staff members were granted bail by the Honourable Supreme Court on 29/01/2021. After her release, the informant’s wife met the Applicant to obtain bail for the informant. The FIR mentions that the Applicant demanded Rs. 70,00,000 as professional fees. The FIR further states that the wife transferred Rs. 12,00,000 to the Applicant’s favour through Real Time Gross Settlement, and Rs. 50,00,000 was paid in cash., On 03/03/2021, the informant was granted bail by the Sessions Court, Ahmednagar, and was directed to report to MIDC Police Station every Saturday, which he complied with. The FIR records that on 07/03/2021 the Applicant called the informant near his office and allegedly demanded Rs. 3 crore for assisting in obtaining bail, threatening that if the money was not paid the informant would be arrested again and would be falsely implicated in false cases., On 02/04/2021 the informant called the Applicant at 09:30 p.m.; the Applicant asked him to meet at 10:00 p.m. at his Belapur office. The informant arrived in his Mini Cooper. A quarrel ensued and the Applicant demanded Rs. 3 crore. Three unknown persons arrived, supported the Applicant and pressured the informant to pay. The informant was forced to sit in a white Polo Volkswagen, and the Applicant took his Mini Cooper. All parties proceeded to Patel Heritage, Sector 7, Kharghar at 10:30 p.m., where the Applicant removed three mobile phones from the informant and concealed them. The informant was then taken to a farmhouse at Karjat at midnight, where the three unknown persons beat him with hands and kicks, demanding Rs. 3 crore. In the early morning at about 06:00 a.m. the informant was taken to a farmhouse at Murbad for half an hour, then forcibly taken to Peruchi Baug near Nashik, arriving at about 01:00 p.m., where they had lunch and the Applicant again demanded Rs. 3 crore. At about 02:30 p.m. the informant was left with the three unknown persons, and the Applicant departed. At about 04:00 p.m. the three unknown persons took the informant to Big Bazar, Nashik Road, where he requested an employee to give him a mobile phone to call his wife. He made two missed calls to his wife and one call to his brother Nitin. The unknown persons then took him outside Big Bazar, striking him with a pen on his shoulder and thigh. At about 05:00 p.m. he was taken to Natural Health Farm House at Deolali, where he was made to swim in the pool. At about 09:00 p.m. a phone call was received on speaker; the informant heard the Applicant telling the caller that the Applicant had been called to Kharghar Police Station because the informant’s family had lodged a complaint about his disappearance. After this, the three unknown persons dropped the informant at Dwarka Chowk in Nashik and left in their Volkswagen. The informant later returned to Mumbai, received treatment from his family doctor, and lodged his complaint at the police station at 03:15 a.m. on 05/04/2021., Mr. Jha, learned counsel for the Applicant, submitted that from the evening of 03/04/2021 the Applicant was detained illegally at Kharghar Police Station. The FIR was lodged at 03:15 a.m. on 05/04/2021, and the Applicant was shown arrested at 04:39 a.m. on the same day. He contended that the detention on 03/04/2021 and 04/04/2021 was illegal, that he was not produced before a Magistrate within 24 hours, and therefore he deserves release on bail as he was illegally detained., Mr. Jha submitted that the prosecution case is doubted by the Division Bench and therefore the case was transferred to the State CID for investigation. He relied on the case of Ram Govind Upadhyay v. Sadarshan Singh and Others, reported in All India Reporter, where the Honourable Supreme Court held that frivolity in prosecution should always be considered and that when there is doubt as to the genuineness of the prosecution, the accused is entitled to bail., Mr. Jha relied on several orders to contend that illegal detention of an accused is a ground for release on bail, including an order passed by a Single Judge of the Bombay High Court on 27/07/1993 in Criminal Bail Application No. 1005 of 1993 in the case of Suaibo Ibow Casamma v. Union of India. He further argued that the prosecution story is absurd; the informant was allegedly taken to five different locations, yet no grievance was made. He asserted that CCTV footage at Murbad, Karjat, etc., would show that the informant was not under pressure, that no weapon was used, and that there was no reason why the informant did not seek help., Mr. Jha invited the Court’s attention to a Memorandum of Understanding entered into by the parties on 28/12/2020, between the informant as flat owner and the Applicant as flat purchaser. The MOU fixed the price of the flat at Rs. 80,00,000, and mentions receipt of Rs. 50,00,000 by the informant. Mr. Jha submitted that this MOU is not referred to in the FIR and therefore the informant’s case is not genuine but a concocted story to pressure the Applicant. He stated that Rs. 12,00,000 were paid by the informant’s wife to the Applicant, but that amount was used to pay lawyers’ fees and expenses for approaching the Supreme Court and the Court in Ahmednagar for obtaining bail for the informant and his wife., Shrimati Lohokare, learned Additional Public Prosecutor, opposed the application, stating that from 10/04/2021 the Applicant was in hospital because he was infected with Covid-19, and therefore he was not in jail. She submitted that the investigation was transferred to the State CID only on 19/05/2021, and that the investigating agency should be given sufficient opportunity, with the 90‑day period ending in the first week of July, by which time a charge‑sheet must be filed. She argued that the other accused are still absconding, the Volkswagen vehicle is yet to be recovered, and there is a serious apprehension of tampering with witnesses. She also noted a hairline skull fracture to the informant, indicating seriousness of the matter., The learned counsel for the informant also strongly opposed the application, contending that the Division Bench of the Bombay High Court is examining the question of illegal detention of the Applicant and that this should not be a ground for his release on bail. He argued that the MOU relied on by Mr. Jha has no relevance, as the FIR allegations pertain to the specific incident of abduction, and that releasing the Applicant would create a strong apprehension of tampering with evidence. He further claimed that the Applicant did not lodge a protest because he was threatened, and that the MOU was executed under coercion, signed by one of the co‑accused, Pankaj, as a witness, though Mr. Jha replied that it was signed by another person., The Court considered the submissions and perused the investigation papers. The medical certificate issued by District Hospital, Panvel shows three injuries: two simple injuries caused by a hard and blunt pointed object, and one contusion on the high parietal region measuring 3.5 × 3.5 cm, described as grievous with a hairline fracture of the right parietal bone. The probable weapon is mentioned as hard and blunt. The Additional Public Prosecutor relied heavily on this medical certificate., In this context, it is important to note that the FIR, lodged after the informant had composed himself, makes no mention of assault by any hard and blunt weapon on his head. The other two injuries are attributed to blows with a pen outside Big Bazar, Nashik. Therefore there is sufficient doubt regarding the alleged head injury. Mr. Jha submitted that there is no skull fracture and that the injury certificate is based on an investigation conducted in a private hospital and is therefore not reliable. At this stage, it is not proper to proceed further as the matter is still under investigation, but doubt remains about the head injury., From reading the FIR it appears that the story is difficult to believe. The informant was taken to various places: Patel Heritage, Sector 7, Kharghar; a farmhouse at Karjat; a farmhouse at Murbad; Peruchi Baug at Nashik; Big Bazar, Nashik; and finally Natural Health Farm House at Deolali. At none of these places did the informant raise an alarm, seek help, or lodge any protest. The investigation papers contain a statement of the caretaker at the farmhouse in Karjat, who described five persons arriving in two vehicles, including the Applicant, reaching the farmhouse at about 03:30 a.m. on 03/04/2021 and leaving at 07:30 a.m. Neither she nor her husband Dinesh stated that the informant resisted or raised any alarm., It is significant that on the way to Nashik there are various toll plazas where employees are always present, yet the informant did not seek help or raise alarm. The FIR does not state that the informant was threatened with any weapon, making it surprising that he did not seek assistance. It also does not seem reasonable that an abducted victim would be taken to a crowded place like Big Bazar., There is a statement of one Manish, whose phone was used by the informant to make a call from Big Bazar. This witness stated that two persons took the informant outside the mall after he made the calls, and the informant did not provide any further information to this witness., The investigation is still in progress, but serious doubt is created about the occurrence of the incident as narrated in the FIR. The first informant alleges that the informant was abducted to pressure him to pay Rs. 3 crore. There are allegations that the informant’s wife paid Rs. 70,00,000 to the Applicant, but this payment is not supported by any written document. Rs. 12,00,000 were transferred through Real Time Gross Settlement, while the cash payment lacks direct or indirect evidence beyond the informant’s and his wife’s statements. The informant had sufficient time to compose his FIR. The dispute specifically mentions the demand of Rs. 3 crore, yet the FIR does not refer to the MOU concerning the flat, which mentions receipt of Rs. 50,00,000 by the informant. Therefore reasonable doubt is created regarding the allegations., The Applicant had suffered Covid‑19 infection and, as admitted by the Additional Public Prosecutor, only one kidney is functional. Although the charge‑sheet is likely to be filed in the first week of July, the Court does not feel it proper to continue the Applicant’s detention until then. The apprehension of tampering with evidence can be addressed by imposing suitable conditions on the Applicant. Based on the above discussion, the Court is inclined to grant bail to the Applicant., In connection with Criminal Report No. 137/2021 registered with Kharghar Police Station, Navi Mumbai, the Applicant is directed to be released on bail upon furnishing a personal bond of Rs. 1,00,000 (Rupees One Lakh Only) with one or two sureties of like amount. The Applicant shall deposit his passport with the Investigating Officer before being released on bail. The Applicant shall not leave India without prior permission of the trial Court. The Applicant shall attend the office of the investigating agency twice a week until the filing of the charge‑sheet and thereafter once every month for a period of one year. In addition, the Applicant shall attend the office of the investigating agency as and when called and shall cooperate with the investigation. The Applicant shall not tamper with the evidence directly or indirectly. The application stands disposed of accordingly. In view of the disposal of the bail application, the connected intervention application is also disposed of.
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Arising out of Special Leave Petition (Civil) No. 20918 of 2022. Leave granted. The appellant No. 1 is the husband, and appellant Nos. 2 and 3 are the daughter and son, respectively, of the deceased Smt. Sushma Pandey. She was admittedly around 50 years old on 26 June 2006 when she was travelling with the respondents in their car. It seems that the vehicle lost control, skidded off and fell into a ditch at about 3.45 p.m., causing the death of Smt. Sushma Pandey., The appellants filed a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal seeking compensation of Rs 16,85,000/-. The Tribunal dismissed the petition stating that the vehicle in question was not insured and, therefore, the claim did not lie. Aggrieved by the order, the appellants approached the High Court of Uttarakhand at Nainital by way of an appeal. The High Court allowed the appeal and remanded the matter to the Tribunal. The Tribunal awarded a sum of Rs 2,50,000/- only to the appellants as compensation. The appellants went in appeal, but the High Court dismissed the same vide impugned order dated 06 April 2017., We have heard learned counsel for the parties and carefully perused the material placed on record. As regards the monthly income of the deceased, learned counsel for the respondents vehemently contends that none of the certificates are reliable., We are constrained to observe that the impugned order passed by the High Court of Uttarakhand at Nainital is full of factual as well as legal errors. The High Court overlooked the fact that the deceased was about 50 years old and not 55 years old. Similarly, the High Court committed a patent error in observing that the appellants are not dependent on the deceased. Appellant Nos. 2 and 3 were students at the relevant time and were surely dependent on the parents, including their deceased mother. The High Court again misread the facts while observing that the deceased was travelling in a bus, while actually she was travelling in a car., Assuming that the deceased was not employed, it cannot be disputed that she was a homemaker. Her direct and indirect monthly income, in no circumstances, could be less than the wages admissible to a daily wager in the State of Uttarakhand under the Minimum Wages Act., It goes without saying that the role of a homemaker is as important as that of a family member whose income is tangible as a source of livelihood for the family. The activities performed by a homemaker, if counted one by one, there will hardly be any doubt that the contribution of a homemaker is of a high order and invaluable. In fact, it is difficult to assess such a contribution in monetary terms., Taking into consideration all the attending circumstances, it appears to us that the monthly income of the deceased, at the relevant time, could not be less than Rs 4,000 per month. However, instead of calculating the compensation under different heads, and also keeping in mind the fact that the appellants and the respondents are closely related and the delinquent vehicle was not insured, we deem it appropriate to allow this appeal in part to the extent that the appellants are granted a lump sum compensation of Rs 6,00,000/- (Rupees six lakhs). Since the respondents have already paid the amount of Rs 2,50,000/- to the appellants, the balance amount of Rs 3,50,000/- shall be paid by them within six weeks, failing which they shall be liable to pay interest as awarded by the Tribunal., As a result, the pending interlocutory applications stand disposed of. Petition(s) for Special Leave Petition (Civil) No(s). 20918/2022 (Arising out of impugned final judgment and order dated 06 April 2017 in Appeal First Order No. 471/2013 passed by the High Court of Uttarakhand at Nainital). Date: 16 February 2024. This matter was called on for hearing today. For Petitioners: Mr. Omprakash Ajitsingh Parihar, Advocate on Record Mr. Abhijeet Shah, Advocate. Mr. Dushyant Tiwari, Advocate. Mr. Arvind Kumar, Advocate. For Respondents: Mr. Ashwarya Sinha, Advocate on Record Mr. Govind Rishi, Advocate. Ms. Priyanka Sinha, Advocate. Upon hearing the counsel, the High Court of Uttarakhand at Nainital made the following: Leave granted. The appeal is allowed in part in terms of the signed order. As a result, the pending interlocutory applications stand disposed of.
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MC(El. Pet.) No. 172 of 2022 Ref: El. Pet. No. 14 of 2022 Shri Thounaojam Shyamkumar, Applicant Versus Shri Lourembam Sanjoy Singh, Respondent MC(El. Pet.) No. 173 of 2022 Ref: El. Pet. No. 25 of 2022 Shri Thounaojam Shyamkumar, aged Applicant Versus Lourembam Sanjit Singh, Respondent. For the applicants: Mr. M. Gunedhor, Advocate. For the respondents: Mr. H.S. Paonam, Senior Advocate, Mr. B.R. Sharma, Advocate. Date of hearing & reserved: 25.09.2023. Date of Judgment & Order: 13.10.2023., These petitions have been filed by the petitioner under Order 7, Rule 11 of the Code of Civil Procedure, 1908 to reject Election Petition Nos. 14 and 25 of 2022., The petitioner herein is the first respondent in both the election petitions. The respondent in MC (El. P) No. 173 of 2022 has filed Election Petition No. 14 of 2022. The respondent in MC (El. P) No. 172 of 2022 has filed Election Petition No. 25 of 2022., The prayer in Election Petition No. 14 of 2022 reads as follows: (a) to declare that the election of the Respondent No.1, the returned candidate of 7‑Andro Assembly Constituency to the 12th Manipur Legislative Assembly Election, 2022 is null and void; (b) to declare that the petitioner is the duly elected Member in the 12th Manipur Legislative Assembly Election, 2022 from 7‑Andro Assembly Constituency., The prayer in Election Petition No. 25 of 2022 reads as follows: (a) to declare that the election of the Respondent No.1, the returned candidate of 7‑Andro Assembly Constituency to the 12th Manipur Legislative Assembly Election, 2022 is null and void; (b) to declare that Respondent No.2 is the duly elected Member in the 12th Manipur Legislative Assembly Election, 2022 from 7‑Andro Assembly Constituency., The challenge made in the election petitions relates to 7‑Andro (General) Assembly Constituency for the 12th Manipur General Legislative Assembly Election held on 28.02.2022. The election petitioner in Election Petition No. 25 is the younger brother of the election petitioner in Election Petition No. 14., For the sake of convenience, the parties are referred to as per their array in Election Petition No. 25 of 2022., The first respondent has filed these petitions to reject the election petitions on the grounds that the election petitioner and the second respondent have failed to mention material facts which would constitute a cause of action; the allegation made against the first respondent does not constitute any corrupt practice; the election petitions have not disclosed the source of information upon which the allegations have been levelled; no pleading as to the knowledge of the first respondent being arrayed as an accused in FIR No. 284(10)04; non‑filing of the objection before the returning officer amounts to waiver of their rights and non‑compliance of Section 83 of the Representation of People Act, 1951., Denying the averments made in these petitions, the election petitioner and the second respondent have filed affidavits in opposition stating that there are sufficient material facts and particulars pleaded in the election petitions which would materially affect the election of the first respondent. It is stated that the first respondent intentionally failed to disclose the non‑agricultural land recorded in the name of his spouse where a four‑storey pucca residential building has been constructed. The first respondent does not understand that the disclosure of agricultural land recorded in the name of the spouse as a residential building is against the relevant law and amounts to a false affidavit, which can be termed as undue influence on the voters thereby materially affecting the result of the election. It is also stated that votes of expired voters have been cast, violating the principle of free and fair elections, a basic structure of the Constitution of India. Accordingly, the election of the first respondent is liable to be declared void and the second respondent may be declared as the returned candidate., Mr. M. Gunedhor, the learned counsel for the first respondent, submitted that the election petitions are liable to be rejected under Order 7, Rule 11(a) of the Code of Civil Procedure. The first respondent, who is the returned candidate, has obtained 1,220 more votes than the second respondent, who is the brother of the election petitioner in Election Petition No. 25 of 2022., The learned counsel for the first respondent would submit that the election petitions are deficient in pleadings to make out any cause of action and miserably failed to substantiate how the result of the election of the first respondent has been materially affected. Therefore, the continuance of the proceedings is an abuse of the process of the Manipur High Court and contrary to the concept of a fair trial. The first respondent was not arrayed as an accused in FIR No. 284(10)04., According to the learned counsel, the election petitions have been filed on the grounds of commission of corrupt practice and improper acceptance of nomination paper as stipulated under Section 123 and Sections 100 and 101 of the Representation of People Act. The election petitions lack material facts constituting the cause of action required under the provisions of the Representation of People Act and do not fulfill the mandatory requirement of law. They do not contain a concise statement of material facts on which the election petitioner and the second respondent rely, and therefore do not disclose a triable issue or cause of action., According to the learned counsel, the election petitions suffer from non‑compliance with Section 83(1)(b) of the Representation of People Act and are completely vague. No trial or enquiry is permissible on the basis of such vague averments. Mere pendency of a criminal case is no bar to contest and be elected. In the present case, two criminal cases are pending against the first respondent. Disclosing the particulars of the FIR in which he was not even arrayed as an accused could not have impacted his entitlement to contest and be elected. There is no averment of particulars, including the date, time, place and manner by which the election petition informed the returning officer about the alleged FIR against the first respondent., The learned counsel further submitted that the first respondent has disclosed the property/land in Clause 7B(iv) of the residential buildings column of Form‑26 affidavit. If the first respondent failed to mention his non‑agricultural land properly in the column meant for non‑agricultural land and instead mentioned it in the column for residential buildings, it would not lead to the inference that he suppressed material information to mislead voters. In fact, the first respondent has mentioned his spouse’s agricultural land properly in the column., The learned counsel urged that the second respondent has failed to produce any material to show who impersonated the expired voters and who facilitated those impersonators to obtain the names of the expired persons in the voters list and cast their votes. There is no specific allegation that either the first respondent or his election agent or any Government officials in charge of Polling Station Nos. 7/11, 7/12, 7/13, 7/17, 7/18, 7/19, 7/41, 7/42, 7/43 and 7/44 prevented any person from going to the polling booths or casting votes. Even if the votes of the alleged disputed polling stations, where the voting of expired persons amounting to 59, are excluded, the first respondent would still have a majority of 1,339 votes over the second respondent. There is no allegation of any attempt by polling authorities to surrender ballot papers or voting machines., The learned counsel urged that on the date of scrutiny of the nomination, nobody raised any objection against the poll process and conduct of polls. The allegations of corrupt practice and improper acceptance of nomination paper do not meet the basic requirement to constitute a cause of action as required by law. The election petitions are in contravention of Section 83 of the Representation of People Act. Thus, a prayer has been made to reject the election petitions. In support of the submissions, the learned counsel for the first respondent placed reliance upon the decision of the Supreme Court in Krishnamoorthy v. Sivakumar and others, (2015) 3 SCC 467., Per contra, Mr. H.S. Paonam, the learned senior counsel for the election petitioner and the second respondent, submitted that M.C. (El. Pet.) Nos. 172 and 173 of 2022 are filed without any basis and that there is a cause of action for filing the election petitions. The material facts constituting the cause of action have been clearly averred in the election petitions. In fact, the election petitioner and the second respondent categorically averred that the non‑disclosure of information or incomplete information while filing the nomination paper along with Form‑26 in respect of the election in question amounts to corrupt practice under Section 123 of the Representation of People Act., The learned counsel would submit that by filing a false affidavit, non‑disclosure and disclosing half‑truth information which has the potential to create confusion and usher in anarchy directly or indirectly attempts to interfere with the free exercise of electoral rights of the voters of 7‑Andro Assembly Constituency for the 12th Manipur Legislative Assembly, 2022., The learned counsel submits that the votes of expired voters have been cast in respect of Polling Station Nos. 7/11, 7/12, 7/13, 7/17, 7/18, 7/19, 7/41, 7/42, 7/43 and 7/44 of 7‑Andro Assembly Constituency and such votes can only be cast in proxy by other persons for the deceased, thereby violating the principle of free and fair election. There are sufficient material facts and particulars stated in the election petitions which would materially affect the election of the first respondent, and the circumstances narrated in the election petitions can be declared void under the provisions of the Representation of People Act., The learned senior counsel added that the first respondent intentionally concealed the particulars of non‑agricultural land and failed to disclose the agricultural land recorded in the name of his spouse as residential building, thereby shattering the free exercise of choice of voters. Moreover, the first respondent has failed to disclose the particulars of the criminal case in FIR No. 284(10)04 pending against him. In fact, all the material particulars about the non‑disclosure and how the same has affected the voters have been clearly mentioned by the election petitioner and the second respondent in their respective election petitions. All the provisions of the Representation of People Act have been complied with while filing the election petitions and they are not ill‑conceived as alleged by the first respondent. Thus, a prayer has been made to dismiss the petitions. In support, the learned senior counsel relied upon the following decisions: D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC; P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8; Srihari Numandas Totala v. Hemant Vithal Kamat; R.K. Imosingh v. Dr. Khawairakpam Loken Singh, 2017 SCC OnLine Mani 127; Order dated 04.01.2018 passed in MC (EP) No. 6 of 2017 (Th. Shyamkumar v. Dr. Nimaichand Liwang); Order dated 23.05.2023 passed in MC (EP) No. 25/22 (Lorho S. Pfoze v. Houlim Shokhopao Mate @ Benjamin); Order dated 05.07.2023 passed in MC (EP) No. 66 of 2022 (Kimneo Haokip Hangshing v. Kenn Raikhan and others); Order dated 12.09.2023 passed in MC (EP) No. 7 of 2023 (Sorokhaibam Rajen Singh v. Pukhrambam Sumati Devi)., This Court considered the rival submissions and also perused the materials available on record., The prayer of the first respondent is that the election petitions be rejected on the ground that they do not disclose a cause of action in terms of the provisions of the Code of Civil Procedure as well as the Representation of People Act., On the other hand, the election petitioner and the second respondent contend that the cause of action for filing the election petitions has been substantially disclosed and they have categorically stated that non‑disclosure of information or incorrect information while filing the nomination paper along with Form‑26 affidavit amounts to corrupt practice under Section 123 of the Representation of People Act as held by the Honorable Supreme Court in a series of judgments., The first respondent has filed M.C. (El. Pet.) Nos. 172 and 173 of 2022 under Order 7, Rule 11(a) of the Code of Civil Procedure praying for rejection of Election Petition Nos. 25 and 14 of 2022. The election petitioner and the second respondent assail the election of the first respondent from 7‑Andro (General) Assembly Constituency for the 12th Manipur Legislative Assembly Elections, 2022 on the grounds of (i) false statements and concealment of material information in respect of criminal cases, particularly FIR No. 284(10)/04 under Sections 121, 121‑A, 400, 124‑A, 120B IPC, Section 5 of the Explosive Substances Act and Section 10/13 of the Unlawful Activities (Prevention) Act pending against the first respondent; (ii) non‑disclosure of agricultural land recorded in the name of his spouse but disclosed as a residential building with a four‑storey pucca structure in Part A Para 7(B)(iv) and failure to disclose non‑agricultural land recorded in his name in Part A Para B(ii); (iii) booth capturing in the aforementioned polling stations amounting to corrupt practice., According to the election petitioner and the second respondent, the improper acceptance of the nomination by the returning officer and the non‑compliance with applicable laws by the first respondent at the time of filing the nomination render the election of the first respondent from 7‑Andro (General) Legislative Assembly Constituency void., Resisting the election petitions, the first respondent has filed a written statement, inter alia, stating that the material facts pleaded in the election petition are frivolous, concocted, a jealous petition and a petition of unclean hand and that merely mentioning the word 'materially affected' is insufficient; the extent and manner of the effect should also be pleaded. Wild allegations have been made that casting of votes will be substantiated by Form 17A. Such wild allegation without any basis is a roving and fishing enquiry of the sacrosanct process of election and shall not be allowed. The first respondent has not indulged any corrupt practice or booth capturing as alleged. Election Petition No. 14 of 2022 has been filed on a wrong premise and no cause of action arose to file the said election petition. It is stated that the agricultural land as well as the non‑agricultural land in question have been disclosed in Form‑26 affidavit with their area and total valuations. The building structures standing on the plots are for residential purposes and were disclosed in the relevant paragraph. The disclosure of such property cannot be termed as filing a false affidavit. The first respondent filed the nomination paper with Form‑26 as prescribed by law and the guidelines of the Election Commission of India. The election petitioner and the second respondent cannot establish any illegality or impropriety in the nomination paper filed in connection with the 2022 election, nor is there non‑disclosure of information relating to source of income and assets of the first respondent or his dependents or spouse. The election petitioner cannot allege improper acceptance of nomination of the first respondent as a ground in the election petition as the same occurred prior to the declaration of the result of election on 10.03.2022., The learned counsel for the first respondent argued that an election petition is based on rights which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non‑compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition, the averments in the election petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue; all material facts, therefore, in accordance with the provisions of the Representation of People Act, have to be set out in the election petition. If the material facts are not stated, the petition is liable to be dismissed under Section 83(1)(a)(b) of the Representation of People Act read with Order 7, Rule 11(a) of the Code of Civil Procedure and may be summarily dismissed., Placing reliance upon the decision in Krishnamurthy, the learned counsel for the first respondent submitted that Section 33(1) of the Representation of People Act envisages that information has to be given in accordance with the Rules, in addition to the information to be provided as per Sections 33(1)(i) and (ii) of the Act. The affidavit required to be filed by the candidate stipulates mentioning of cases pending against the candidate in which charges have been framed by the Court for offences punishable with imprisonment for two years or more and also the cases pending in which cognizance has been taken by the Court, other than the cases mentioned in clause (5)(i) of Form‑26. According to learned counsel, Section 33A only requires candidates to furnish information regarding cases where charges have been framed or they have been convicted for any offence and sentenced to imprisonment for one year or more and does not contemplate information regarding a criminal case pending investigation. In fact, the election petitioner has failed to disclose the date on which the Court took cognizance of the offence alleged against the first respondent and that certain charges have been framed based on the said FIR. Further, the learned counsel submitted that failure to plead material facts in the election petitions makes them liable to be rejected for want of cause of action., In Krishnamurthy, the Honorable Supreme Court held: 'On a perusal of the aforesaid format, it is clear as crystal that the details of certain categories of offences in respect of which cognizance has been taken or charges have been framed must be given/furnished. This rule is in consonance with Section 33‑A of the 1951 Act. Section 33(1) is in addition to the information to be provided as per Sections 33(1)(i) and (ii). The affidavit required to be filed by the candidate stipulates mentioning of cases pending against the candidate in which charges have been framed by the Court for offences punishable with imprisonment for two years or more and also the cases pending in which cognizance has been taken by the Court other than the cases mentioned in clause (5)(i) of Form‑26. Apart from the aforesaid, clause (6) of Form‑26 deals with conviction.', The specific case of the election petitioner is that on 07.10.2004, an FIR, being FIR No. 284(10)04, was lodged before Imphal Police Station under Sections 121, 121‑A, 400, 124‑A, 120B IPC, Section 5 of the Explosive Substances Act and Sections 10/13 of the Unlawful Activities (Prevention) Act against more than fourteen accused alleging a crime committed in October 2004. The first respondent was arrested by the Special Cell, New Delhi on the allegation of being associated with UNLF outfits along with two others. Thereafter, the prosecution prayed for a production warrant of the accused before the Magistrate, Imphal West with reference to FIR No. 284(10)04 and the respondent was subsequently released on bail. FIR No. 284(10)04 is still under investigation and such pendency has not been disclosed by the first respondent in his Form‑26 affidavit., On the other hand, the first respondent pleads that only cases where charges have been framed or where a conviction has occurred are required to be furnished in the Form‑26 affidavit and Section 33 of the Representation of People Act does not contemplate any information regarding a criminal case pending investigation., Similarly, the second respondent argues that the first respondent has failed to disclose agricultural land recorded in the name of his spouse, which was disclosed as a residential building in Part A Para 7(B)(iv). Further, the non‑agricultural land recorded in the name of the first respondent was not disclosed in Part A Para B(ii), but was disclosed in Part A Para 7(B)(iv). There was also booth capturing, thereby forcefully allowing supporters of the first respondent to cast votes in multiple numbers, including votes of expired persons, which amounts to corrupt practice., The first respondent denied the aforesaid arguments and submitted that there was no booth capturing as alleged and that he has given detailed information about the two lands as required in Form‑26 affidavit. If he failed to mention his non‑agricultural land properly in the column meant for non‑agricultural land and instead mentioned it in the column for residential buildings, it would not lead to the inference that he suppressed material information to mislead voters., Considering the arguments canvassed by the learned counsel for the first respondent and the election petitioner, the Manipur High Court is of the view that cases which have been taken cognizance of have to be furnished in Form‑26 by the candidate. Whether FIR No. 284(10)04, said to have been registered against the first respondent, has been deliberately omitted from Form‑26 is a matter to be decided during trial and, at this stage, the Court cannot conclude that because the investigation is pending it is unnecessary to mention it in the affidavit. Similarly, whether the first respondent failed to properly mention his non‑agricultural land and the agricultural land in the relevant columns is to be decided only after trial. At this stage, the Court cannot consider the aspect without oral and documentary evidence., It is to be noted that the right to information in a democracy is recognized throughout and is a natural right flowing from the concept of democracy. Article 19(1) and (2) of the International Covenant on Civil and Political Rights states: (1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice., Article 19(1)(a) of the Constitution of India provides for freedom of speech and expression. Voter's speech or expression in the case of election includes casting of votes; for this purpose, information about the candidate to be selected is a must. Voter's right to know the antecedents, including criminal past, of a candidate contesting election for MP or MLA is fundamental for the survival of democracy. The voter may think before electing law‑breakers as lawmakers., In D. Ramachandran, the Honorable Supreme Court held: 'We do not consider it necessary to refer in detail to any part of the reasoning in the judgment; instead, we proceed to consider the arguments advanced before us on the basis of the pleadings contained in the election petition. It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter. On the other hand, Rule 11 of Order 7 enjoins the court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this Rule. The application filed by the first respondent in OA No. 36 of 1997 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order 7 Rule 11(a), learned senior counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of Order 7 Rule 11(a) CPC cannot therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order 7 Rule 11(a) CPC, the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the Rule, there cannot be a partial rejection of the plaint or petition. See Roop Lal Sathi v. Nachhattar Singh Gill, (1982) 3 SCC 487. We are satisfied that the election petition in this case could not have been rejected in limine without a trial.', In P.V. Guru Raj Reddy, the Honorable Supreme Court held that rejection of the plaint under Order 7, Rule 11 CPC is a drastic power conferred in the Court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7, Rule 11 are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7, Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law that the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial., In Srihari Hanumandas Totala, the Honorable Supreme Court observed that an application under Order 7, Rule 11 must be decided within the four corners of the plaint. The trial Court and the High Court were correct in rejecting the application under Order 7, Rule 11(d)., In Rajkumar Imo Singh, this Court held that after going through the averments made in the election petition as a whole, it cannot be said that the petition does not contain a concise statement of material facts. In fact, it does disclose a cause of action. So long as the petition discloses some cause of action or raises questions fit to be decided by the Court, the mere fact that the case is weak and not likely to succeed is no ground for dismissing it. Therefore, the trial can continue on merits and it is a different matter if the material facts as stated in the petition are not sufficient to prove the allegations. Whether or not the election petitioner is able to prove the allegations is a matter of evidence which can be considered only at the stage of trial.
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In Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others, (2012) 7 SCC 788, the Honourable Supreme Court of India held that there is no denying the fact that courts are competent to dismiss petitions not only on the ground that the same do not comply with provisions of Sections 81, 82 and 117 of the Representation of People Act, but also on the ground that the same do not disclose any cause of action. The expression cause of action has not been defined either in the Code of Civil Procedure or elsewhere and is more easily understood than precisely defined., In Kisan Shankar Kathore v. Arun Dattatray Sawant and others, (2014) 14 SCC 162, the Honourable Supreme Court of India relied upon the decision in the case of Union of India v. Association for Democratic Reforms and another (2002) 5 SCC 294, wherein it has been held that it was incumbent upon every candidate who is contesting the election to give information about his assets and other affairs, which requirement is not only an essential part of fair and free elections, insofar as every voter has a right to know about these details of the candidates; such a requirement is also covered by freedom of speech granted under Article 19(1)(a) of the Constitution of India., In Ashraf Kokkur v. K.V. Abdul Khader, (2015) 1 SCC 129, the Honourable Supreme Court of India held that the election petition having disclosed a cause of action should not have been thrown out at the threshold., In Kuldeep Singh Pathania v. Bikram Singh Jaryal, (2017) 5 SCC 345, the Honourable Supreme Court of India has considered the preliminary issues relatable to Order 7, Rule 11 of the Code of Civil Procedure in the sense that those issues pertain to the rejection at the institution stage for lack of material facts and for not disclosing a cause of action. The Honourable Supreme Court of India held that merely because it is a trial on preliminary issues at the stage of Order 14, the scope does not change or expand. The stage at which such an enquiry is undertaken by the court makes no difference since an enquiry under Order 7, Rule 11(a) of the Code of Civil Procedure can be taken up at any stage. After consideration of the materials produced, the Honourable Supreme Court of India concluded that the election petition has disclosed a cause of action and remitted the matter for fresh enquiry., Whether the allegation of the election petitioner and the second respondent are correct or not has to be proved by the election petitioner and the second respondent respectively and, further, whether incorrect particulars have been mentioned in the affidavit in Form‑26 by the first respondent/returned candidate and whether the alleged false affidavit would amount to violation of the provisions of Section 33 of the Representation of People Act so as to render the election of the first respondent void are to be considered by the Supreme Court of India in the course of trial., The learned counsel for the election petitioner has referred to a number of decisions related to cause of action. The Supreme Court of India does not wish to add to the number of judicial pronouncements relied upon by the learned counsel. Suffice to say that cause of action means every fact which, if traversed, would be necessary for the election petitioner to prove in order to support his right to a judgment of the Supreme Court of India., On a thorough reading of the election petitions, it cannot be said that the election petitions do not contain a concise statement of material facts. In fact, the election petitions disclose a cause of action. Whether or not the election petitioner and the second respondents are able to prove the allegations set out in the election petitions and similarly disprove the allegations by the first respondent is a matter of evidence which can be considered only at the time of trial., At this stage, the first respondent is not able to produce any material to substantiate his case that the election petitions do not disclose the cause of action. The first respondent simply stated that the election petitioner and the second respondent have failed to disclose the cause of action to maintain the election petitions in terms of the provisions of the Representation of People Act and the Code of Civil Procedure and nothing more., When the Supreme Court of India read over the averments set out in the election petitions wholly, it is clear that the election petitioner and the second respondent have stated full and material particulars following the cause of action for filing the election petitions. Prima facie, the election petitioner and the second respondent have narrated in the election petitions the non‑disclosure of certain information and/or incomplete information while filing the nomination paper along with Form‑26 affidavit by the first respondent., The expression 'cause of action' has been compendiously defined to mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet., In Harishankar Jain v. Sonia Gandhi, (2001) 8 SCC 233, the Honourable Supreme Court of India held that the expression cause of action would mean facts to be proved, if traversed, in order to support his right to the judgment of the court and that the function of the party is to present a full picture of the cause of action with such further information so as to make the opposite party understand the case he will have to meet., In Mayar (H.K.) Ltd. and others v. Owners and Parties, Vessel M.V. Fortune Express and others, (2006) 6 SCC 100, the Honourable Supreme Court of India held as follows: From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and, if it does, then the plaint cannot be rejected by the court exercising the powers under Order VII Rule 11 of the Code of Civil Procedure. Essentially, whether the plaint discloses a cause of action is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety, taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and, for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relate to misrepresentation, fraud, wilful default, undue influence or the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court of India has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff‑appellants. Similarly, the court could not have taken the aid of Section 10 of the Code for stay of the suit as there is no previously instituted suit pending in a competent court between the parties raising directly and substantially the same issues as raised in the present suit., In construing a plea in any pleading, the courts must keep in mind that a plea is not an expression of art and science, but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it can be gathered what the drafter intends to convey by reading the whole pleading., When the Supreme Court of India carefully examined the decisions in the cases of Harishankar Jain and Mayar (H.K.) Ltd., supra, it is clear that the courts need to be cautious in dealing with the request for dismissal of the election petition at the threshold and exercise their powers of dismissal only in cases where even on a plain reading of the election petition no cause of action is disclosed. In the case on hand, the election petitions establish the cause of action., An election which is vitiated by reason of corrupt practices, illegalities and irregularities enumerated in Sections 100 and 123 of the Representation of People Act cannot obviously be recognized and respected as the decision of the majority of the electorate. The courts are, therefore, duty bound to examine the allegations whenever the same are raised within the framework of the statute without being unduly hyper‑technical in their approach and without being oblivious of the ground realities., The result of the election can be questioned on the grounds enumerated in Section 100 of the Representation of People Act. Section 100(1)(b) and 100(1)(d)(i), (ii), (iii) and (iv) of the Representation of People Act provide: 100. Grounds for declaring election to be void. (1) Subject to the provisions of sub‑section (2), if the High Court of India is of opinion (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non‑compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act., As stated supra, the election petition must set out the material facts on the basis of which the charge can be made and, in the event of the material facts not being stated in the election petition, the same is liable to be dismissed., Whether in an election petition a particular fact is material or not, and, as such, required to be pleaded, is a question which depends on the nature of the charge leveled, the ground relied upon and the special circumstances of the case. All those facts which are essential to clothe the election petition with a complete cause of action are material facts which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Representation of People Act., The object and purpose of pleading material facts is to enable the opposite party to know the case he has to meet and, in the absence of such a pleading, a party cannot be allowed to lead evidence. The requirement under Section 83(1)(a) of the Representation of People Act in contradiction to Section 83(1)(b) of the Representation of People Act is that the election petition needs to contain only a concise statement of the material facts and not material particulars. For the purpose of considering a preliminary objection as to the maintainability of the election petition, the averments in the election petition should be assumed to be true and the Supreme Court of India has to find out whether these averments disclose a cause of action or a triable issue as such. However, the Supreme Court of India cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action., As stated supra, the election petitioner assails the election of the first respondent under Sections 77, 80, 80‑A, 81, 84, 100(1)(d)(i), (iii) and 101 of the Representation of People Act. After going through the averments made in the election petitions as a whole, it cannot be said that the election petitions do not contain a concise statement of material facts. In fact, prima facie, the election petitions disclose the cause of action., It is trite that the cause of action is a bundle of facts which, taken with law, gives the election petitioner a right to relief against the returned candidate. Every fact and bundle of facts together constitutes a question of fact which is required to be proved for the relief., It is well settled law that our election law, being statutory in character, must be strictly complied with since an election petition is not guided by ever‑changing common law principles of justice and notions of equity. Being statutory in character, it is essential that it must conform to the requirements of our election law. But at the same time the purity of the election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. If the returned candidate is shown to have secured his success at the election by corrupt means he must suffer for his misdeeds., It is reiterated that the present election petitions disclose the cause of action which, if unrebutted, could void the election and the provisions of Order 7, Rule 11 of the Code of Civil Procedure cannot therefore be invoked in the present cases. There is no substance in the contention that some of the allegations are bereft of material facts and, as such, do not disclose a cause of action. It is elementary that under Order 7, Rule 11(a) of the Code of Civil Procedure, the court cannot dissect the pleading into several parts and consider whether each of them discloses a cause of action., At this stage, the Supreme Court of India is not considering the issues—whether the first respondent has filed a false affidavit at the time of filing his nomination and has failed to disclose true and correct facts, thereby violating the provisions of the Representation of People Act, and whether the returning officer has correctly or wrongly accepted the nomination of the first respondent and there was violation of Section 33 of the Representation of People Act. These are all matters of trial. Thus, the Supreme Court of India is of the considered view that there had been substantial compliance with the provisions of Section 83(1)(a) and (b) of the Representation of People Act. Moreover, the question as to whether the pleadings made by the election petitioner and the second respondent in the election petitions are sufficient can only be determined at the time of final hearing of the election petitions. The election petitions disclose a cause of action and are to be tried. In view of the above, the present petitions are devoid of merits and, therefore, are liable to be dismissed., In the result, MC (El. Pet.) No. 172 of 2022 in Election Petition No. 25 of 2022 and MC (El. Pet.) No. 173 of 2022 in Election Petition No. 14 of 2022 are dismissed. There will be no order as to costs.
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Appeal No. 1119 of 2015 dated 21 January 2022. Sophy Thomas, Judge., The appellant and respondent, a Christian couple, were married according to Christian rites on 23 October 1988. Both are well‑educated and hail from respectable families. They have two daughter children. The husband, an engineer and yoga trainer, filed Original Petition No. 1339 of 2009 before the Family Court, Ernakulam, seeking dissolution of marriage under Section 10 of the Divorce Act, alleging mental and physical cruelty and desertion by the wife, who is a postgraduate., The husband alleged that from the very inception of marriage the wife was showing behavioural disorders, was intolerable even on minor domestic problems and was abusive and assaultive in nature. He claimed she did not give proper attention to the children, often threatened to slice his throat, strangulated him during sleep, threatened to slice his penis when he did not accede to her demand for unnatural sex, threatened suicide and once jumped out of a running car. She went out of the house during night hours without informing him and was taken from the street during midnight. Though she was taken to various psychologists and psychiatrists, she was not cooperating with the treatment. In July 2005 she returned to her paternal house and thereafter never came back to live with her husband and children. The two girl children were taken care of by the husband and his mother. She was not bothered about the girl children when she left her matrimonial home. When the husband was admitted in hospital due to heart attack, she did not visit him. She also extended her cruelties to the mother‑in‑law., The wife contended that the grounds alleged by the husband for divorce were absolutely false and that she was ill‑treated by the husband and his mother. She claimed she was not provided food or clothing by the husband, that she went back to her paternal house when the torture became unbearable, and that the husband and his mother attempted to depict her as a mental patient. She said she was ready to attend counselling and undergo treatment to save her family life, that the husband was not ready to make her happy and treated her as a slave, and that the threat of homicide and suicide were false allegations. She stated there was no ground to dissolve the marriage and that she intended to live with her husband and children, but the mother‑in‑law filed an injunction suit to prevent her from entering the house., The Family Court formulated necessary issues and the parties were permitted to adduce evidence. Petitioners' witnesses 1 to 4 were examined and Exhibits A1 to A3 were marked from the side of the petitioner‑husband. Respondent witness 1 was examined and Exhibits B1 and B2 were marked from the side of the respondent‑wife. On analysing the facts and evidence, the Family Court found that the petitioner‑husband could establish the grounds of cruelty and desertion against the respondent‑wife, and the Original Petition was decreed vide judgment dated 20 August 2015, dissolving their marriage., Challenging the judgment and decree, the wife appealed alleging that the impugned judgment gave an incentive for the husband’s cruelty and desertion. She claimed the husband manipulated and fabricated false evidence of impulse control disorder for the wife and influenced the children to give testimony against their mother. She argued that the Family Court ought to have found that she had never intended to terminate her matrimonial life with the husband and that she was prevented from entering her matrimonial home by an injunction suit filed by the mother‑in‑law., Now let us have a re‑appraisal of the entire facts and evidence in the light of the grounds urged by the appellant to assail the impugned judgment and decree., The wife and husband shall be referred to as the appellant and respondent respectively, hereinafter., The respondent was granted a decree of divorce on the ground of cruelty and desertion. Let us discuss these grounds one by one., In matrimonial life, cruelty can be defined in many ways. It may be physical or mental. Physical cruelty provides direct evidence that is perceptible, whereas mental cruelty is drawn from the facts and circumstances of the case. Mere trivial irritations, quarrels, normal wear and tear of married life would not be adequate for grant of divorce on the ground of mental cruelty. The married life should be reviewed as a whole, and a few isolated instances over a period of years will not amount to cruelty., The Supreme Court of India in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 elaborately discussed the nature and scope of mental cruelty as a ground of divorce. It held that no uniform standard can be laid down, but illustrative instances include acute mental pain making it impossible for the parties to live together, conduct that makes the wronged party unable to put up with such conduct, mere coldness or lack of affection not amounting to cruelty, frequent rudeness, petulance, indifference and neglect making married life intolerable, a state of deep anguish caused by the conduct of the other spouse, sustained abusive and humiliating treatment, sustained unjustifiable conduct affecting physical and mental health, conduct that is more than jealousy or selfishness, and unilateral decisions regarding sexual relations or child‑bearing that may amount to mental cruelty., In the case in hand, the respondent alleged physical as well as mental cruelty by the wife. He claimed that on one occasion, when he could not heed her request for purchasing a nighty, she bit off a portion of his shoulder muscle, leaving a bite mark, and his mother had to call the police. The wife admitted the bite mark but said the elder child caused it. Petitioner witness 2, the elder child, denied the allegation made by his mother., The respondent deposed that the appellant had threatened to slice his throat during sleep, threatened to slice his penis whenever he refused her demand for unnatural sex, strangulated him many times during sleep, often threatened suicide and once tried to jump out of a moving car. He also alleged that she treated the children cruelly and abused and assaulted them for trivial matters., The allegations of abusive and assaultive nature of the appellant are supported by her own daughters, petitioner witnesses 2 and 3. Both gave testimony that the appellant‑mother always abused and insulted them, fought with their father, left them at the mercy of their father and grandmother while they were school‑going children, and threatened to kill their father or herself. They stated that violence was always initiated by the mother, who verbally and physically abused their father and threw objects at him., The respondent has a case that the appellant was having some behavioural problems and was taken to various psychologists and psychiatrists for treatment. Respondent witness 1 admitted before the court that she had taken treatment from psychiatrists but claimed she had no mental problem, only mental stress and strain due to the matrimonial cruelties she was subjected to by her husband and mother‑in‑law., The appellant admitted that she had gone to Dr. Rajiv, a psychiatrist attached to PVS Hospital, for treatment, and that she was taken to Renewal Centre, Kaloor where she consulted Dr. Sr. Pious, also a psychiatrist. She said the treatment by Dr. Rajiv could not be completed because the respondent did not cooperate, and thereafter she did not pursue further treatment, stating she had no psychiatric problems and that the medicines she took were only for reducing tension., Dr. Rajiv, a psychiatrist working in PVS Hospital, produced Exhibit A1 showing treatment records of the appellant for the period 19 June 2007 to 12 November 2007. The record indicated that earlier she had been under the treatment of Dr. Venugopal and was brought to the doctor with a history of frequent fights over trivial matters, loss of temper and throwing things, family discord and separation for the past two years. The doctor prescribed medicines and reviewed her regularly until 12 November 2007. The document also shows that she was accompanied by her mother‑in‑law on 12 September 2007., The testimony of Dr. Rajiv was that the appellant was suffering from impulse control disorder, meaning she was not able to control anger and exhibited excessive anger, which may adversely affect marital life. Persons suffering from impulse control disorder may be assaultive and may exhibit homicidal or suicidal tendencies. The doctor stated that there is no complete cure for this illness, but it can be controlled with proper medication. The appellant admitted that after 12 November 2007 she had not continued the treatment., One may suffer mental stress or strain due to many reasons. Not taking treatment to bring about a peaceful and harmonious family atmosphere may also be counted as cruelty to the persons at the receiving end. The appellant has no case that she had difficulty continuing treatment, but she claimed she had no psychiatric problem and therefore discontinued it. The doctor testified that impulse control disorder will definitely affect a normal family life, but if proper treatment is given it can be brought under control., During re‑examination of Dr. Rajiv, learned counsel for the appellant suggested that persons suffering from hyperthyroidism may exhibit similar symptoms, and the doctor answered in the affirmative. However, the appellant did not produce any evidence that she was suffering from hyperthyroidism. She maintained that her mental stress and strain were caused by family problems and that she had taken treatment only to reduce tension. Her own testimony, coupled with the testimony of petitioner witness 1 and Exhibit A1, shows that she was having some behavioural disorders which created troubles in her family life and that she was not continuing treatment to lead a normal family life with her husband and children., The appellant herself admitted before the court that the husband was taking her to college while she was doing post‑graduation, that she was taken for foreign trips and was gifted gold ornaments, and that she nevertheless alleged she was treated like a slave. Learned counsel for the respondent would contend that making false allegations against the husband also amounts to cruelty., Petitioner witnesses 2 and 3, the daughters of the appellant, are of the view that if the appellant is permitted to continue her matrimonial life with the respondent, they will lose their father. The younger daughter stated that it is better to be children of divorced parents than children of parents who murder the father. The mother went back to her paternal house in 2005 while they were school‑going children and did not return even when their father was hospitalised due to heart attack., The Supreme Court of India in Sobha Rani v. Madhukar Reddi (1988) 1 SCC 105 examined the concept of cruelty and held that the word 'cruelty' has not been defined in the Hindu Marriage Act. It is used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to matrimonial duties or obligations. Cruelty may be mental or physical, intentional or unintentional. Physical cruelty is a question of fact and degree. Mental cruelty requires enquiry into the nature of the cruel treatment and its impact on the mind of the spouse, and whether it caused reasonable apprehension of harm or injury to live with the other., In Narayan Ganesh Dastane v. Sucheta Narayan Dastane (1975) 2 SCC 326, the Supreme Court observed that the enquiry is whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent., In V. Bhagat v. D. Bhagat (Mrs) (1994) 1 SCC 337, it is observed that mental cruelty under Section 13(1)(ia) can be defined as conduct which inflicts mental pain and suffering such that it is not possible for the party to live with the other. The conduct must be such that the wronged party cannot reasonably be expected to continue living together. It is not necessary to prove injury to health, but the social status, educational level, society, possibility of living together and other relevant facts must be considered., The Supreme Court of India in Samar Ghosh's case further observed that the concept of mental cruelty cannot remain static; it changes with time, modern culture, media and value systems. There can be no fixed formula for determining mental cruelty; each case must be evaluated on its peculiar facts and circumstances., In A. Husband v. B. Wife (2010) 4 KLT 434, it was held that the nature of cruelty which would entitle a spouse to divorce must be identical in all religions. Law cannot recognise different varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty or secular cruelty. The expression 'harmful or injurious' cannot be limited to physical harm; anything that hinders the ability of the spouse to blossom into his/her fullness and enjoy life in matrimony falls within Section 10(1)(x) of the Divorce Act., In the case in hand, the husband is seeking divorce on the ground of matrimonial cruelty envisaged under Section 10(1)(x) of the Divorce Act, 1869. From the available facts and evidence, he has amply proved that the appellant has treated him with such cruelty as to cause reasonable apprehension in his mind that it would be harmful or injurious to live with the appellant. The children are also anxious to save the life of their father and state that if the appellant and respondent are put together again they will lose their father. The facts and evidence on record are sufficient to show that the nature and behaviour of the appellant towards the respondent was sufficient to cause reasonable apprehension in his mind that continuance of matrimonial life with the appellant was harmful and injurious to his life., Regarding the desertion alleged by the husband, the appellant herself admitted before the court that in July 2005 she went back to her paternal house. She has no case that before the mother‑in‑law filed the injunction suit against her she made any complaint or petition for restitution of conjugal rights or for custody of her minor daughter children. She did not take her children with her when she left the matrimonial home. The children state that even when they attained biological maturity she did not care to see them. In 2005 the respondent was hospitalised due to heart attack and the appellant did not turn up. Although the appellant contended that between 2005 and 2009 she occasionally reached her matrimonial home and stayed with her husband and children, no evidence is forthcoming to support that fact., Petitioner witnesses 1 to 3 contended that in 2009, when the appellant and her parents tried to make a forcible entry into the house of her mother‑in‑law, the mother‑in‑law filed a civil suit and obtained an injunction, which was later vacated. Only after the civil suit did the appellant file Exhibit A2 complaint under the Domestic Violence Act for a residence order in the shared household. Exhibit A1 medical report noted that when the doctor examined the patient on 19 June 2007, the appellant had been living separated from her family for the past two years, corroborating the testimony that she deserted her husband and children in 2005. There is nothing to show that after 2005 the appellant and respondent lived together as husband and wife, except the fact that she lodged Exhibit A2 complaint in 2009 for a residence order. If she had been forcibly sent away from her matrimonial home and wanted to stay with her husband and children, she need not have waited four years to file a complaint. She did not file any petition for restitution of conjugal rights or for custody of her children., As observed by the Supreme Court of India in Samar Ghosh's case, where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties., On an overall consideration of the factual aspects and evidence, it is proved that the appellant was treating her husband with cruelty both physical and mental, and in the year 2005 she deserted him., There is no merit in preserving intact a marriage when the marital tie becomes injurious to the parties. When there is no rose and only thorns left, and there is no scope for the plant to sprout again, there is no meaning in watering the same, knowing that it is dead forever., For the last more than sixteen years, the parties are living separate and their marriage is to be treated as a deadwood where no signs of life can be seen. Even during the appellate stage, attempts at reconciliation were made but could not succeed., We are of the firm view that the appellant could not succeed in assailing the impugned judgment and decree on the grounds alleged by her. The respondent proved that the appellant treated him with cruelty causing reasonable apprehension of harm and injury in his mind, and that she deserted him in the year 2005.
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Appeal No. 1119 of 2015. In the result, this appeal fails and hence dismissed, confirming the impugned judgment and decree. The parties shall suffer their respective costs.
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The Civil Court, Senior Division, Varanasi Regular Civil Suit No. of 2021 (Twenty Twenty One) is filed by the following plaintiffs: Goddess Maa Shringar Gauri through next friend and devotee Ranjana Agnihotri, daughter of Late Rajendra Kant Agnihotri, residing at 512/695 Balda Road, Nishatganj, Lucknow, Uttar Pradesh 226007; Asthan Lord Adi Visheshwar, Jyotirlinga in the radius of five Kos situated in the City and District of Varanasi through next friend and devotee Jitender Singh Vishen, son of Sri Yaduraj Singh, residing at Gulab Singh Purwa, Veerpur Vishen, Tehsil and District Gonda, Uttar Pradesh 271123; Ranjana Agnihotri (Advocate), daughter of Late Rajendra Kant Agnihotri, residing at 512/695 Balda Road, Nishatganj, Lucknow, Uttar Pradesh 226007; Jitender Singh Vishen, son of Sri Yaduraj Singh, residing at Gulab Singh Purwa, Veerpur Vishen, Tehsil and District Gonda, Uttar Pradesh 271123; Ankur Sharma (Advocate), son of Chander Kumar, residing at Ward No. 19 Shivnagar Behind Sheep Husbandry, Kathua, Jammu and Kashmir 184101; Dr. Ram Prasad Singh, son of Late Tulsi Ram Singh, residing at No. 4/35, C‑80 Mahamana Nagar, Sunderpur, Varanasi, Uttar Pradesh 221005, retired from Banaras Hindu University in 2017, journalist and editor of Vande Matram; Shishir Chaturvedi (Advocate), son of Late Jugal Kishore Chaturvedi, residing at 215/460 Ichha Bawan, Sabji Madi, Charbagh, Lucknow, Uttar Pradesh 226001; Rajesh Shankar Saxena, son of Late Bhawani Shankar Saxena, residing at 25/51 Shiva Ji Marg, Lucknow, Uttar Pradesh 226001; Rakesh Kumar Agarwal, son of Late Shri Nivas Agarwal, residing at S‑10/8‑4 B Maqbool Alam Road, Varanasi, Uttar Pradesh 221002; Jan Udghosh Sewa Sansthan, a society registered under the Societies Registration Act 1860 at Lucknow, office at E‑3/568 Sector J Aliganj, Lucknow, represented by its President Kuldeep Tiwari, son of Girish Chandra Tiwari, residing at 4/285 Viram Khand Gomti Nagar, Lucknow, Uttar Pradesh 226010, and its Secretary; the Ministry of Home Affairs, Government of India, North Block, New Delhi 110001 (email: hshso@nic.in)., The defendants are: the Government of Uttar Pradesh, represented by the Principal Secretary (Home), Lal Bahadur Shastri Bhawan (Annexy Building), Sarojini Naidu Marg, Lucknow, Uttar Pradesh 226001 (email: shome@nic.in); the State of Uttar Pradesh, represented by the Chief Secretary, Government of Uttar Pradesh, 101 Lok Bhawan, Civil Secretariat, Vidhan Sabha Marg, Lucknow, Uttar Pradesh 226001 (email: csup@nic.in); the District Magistrate, Varanasi, Collectorate Compound, Hamrautia, Varanasi, Uttar Pradesh 221102 (email: dmvar@nic.in); the Senior Superintendent of Police, District Varanasi, Collectorate Compound, Hamrautia, Varanasi, Uttar Pradesh 221002 (email: sspvns-up@nic.in); the Uttar Pradesh Sunni Central Waqf Board, through its Chairperson, 3‑A Mal Avenue, Lucknow, Uttar Pradesh 226001 (email: info@upsunniwaqfboard.org); the Committee of Management Anjuman Intazamia Masajid, through its Secretary, alleged Gyanvapi Masjid, office at Pilli Kothi, Varanasi, Uttar Pradesh 221001; and the Board of Trustees of Shri Kashi Vishwanath Temple, through its Chief Executive Officer/Secretary, office at Shri Kashi Vishwanath Temple, CK 37/40, 42 Bans Phatak, Varanasi, Uttar Pradesh 221001 (email: shrikashivishwanathtempletrust@gmail.com)., The cause of action arises from the alleged continuous denial of the right to worship at the ancient Kashi Vishwanath Temple located at Dashashwamedh, Varanasi. The plaintiffs seek restoration of darshan, pooja, aarti, bhog and performance of rituals at the principal seat of Asthan Lord Adi Visheshwar and Goddess Maa Shringar Gauri, along with Lord Ganesh, Nandiji and other subsidiary deities within the temple complex, which measures approximately one bhiga, nine biswas and six dhoors. A sketch map of the old temple published in the book *Benares Illustrated* by James Prinsep is annexed as Annexure A. The suit invokes Article 25 of the Constitution of India and Article 13(1) to declare that any obstacle created before 26 January 1950 is null and void. The plaintiffs contend that an idol worshipper cannot complete pooja and gain spiritual benefits without the objects of worship, and any hindrance constitutes denial of the right to religion guaranteed under Article 25., The plaintiffs assert that the ancient temple, despite being claimed by Muslims as part of the so‑called Gyanvapi Mosque, continued to house Maa Shringar Gauri, Lord Ganesh and other subsidiary deities. The suit is filed by devotees as next friends of the plaintiff deities. The devotees are Sanatani Hindus, idol worshippers and followers of Lord Shiva, practicing Vedic Sanatan Hindu Dharma, and are competent to bring this suit in the interest of the deities and for the benefit of devotees., The plaintiffs claim that they and other devotees of Lord Shiva are entitled to perform pooja, darshan, aarti and bhog within the entire area of five Kos in exercise of the right guaranteed by Article 25, and that no person has the right to interfere or create hindrance in the performance of worship. Plaintiff No. 1, Maa Shringar Gauri, is a swayambhu deity revealed near the Adi Visheshwar Shivlingam and has no shebait to render service, thus filing the suit through a next friend. Plaintiff No. 2, Asthan Lord Adi Visheshwar, Jyotirlinga, is a swayambhu deity existing within a radius of five Kos, an area recognized as Avimukta Kshetra by scriptures such as the Shiv Purana and Skand Purana. All other plaintiffs are devotees of Lord Adi Visheshwar, Goddess Maa Shringar Gauri and other subsidiary deities, filing the suit in their capacity as worshippers asserting their right to worship at the principal seat of the deity., The defendants include: (i) the Union of India, where the validity of the Places of Worship (Special Provisions) Act 1991 may be determined; (ii) the Government of Uttar Pradesh and the Chief Secretary of Uttar Pradesh, responsible for implementing the Shri Kashi Vishwanath Temple Act 1983; (iii) the District Magistrate, Varanasi and the Senior Superintendent of Police, District Varanasi, as law‑enforcing agencies; (iv) the Uttar Pradesh Sunni Central Waqf Board, alleged to have registered the property as waqf; (v) the Committee of Management Anjuman Intazamia Masajid, alleged to be managing the property illegally; and (vi) the Board of Trustees of Shri Kashi Vishwanath Temple, established by legislation and obligated to manage the entire temple complex but alleged to have taken no action to take over the property., The reliefs prayed for are: (a) a declaration that the worshippers and devotees of Goddess Maa Shringar Gauri, Goddess Maa Ganga, Lord Hanuman, Lord Ganesh, Nandiji and Lord Adi Visheshwar are entitled to darshan, pooja and worship within the area in question; (b) a declaration that the entire Avimukta area belongs to the plaintiff deity Asthan Lord Adi Visheshwar within a radius of five Kos from the principal seat; (c) a perpetual injunction prohibiting the defendants from interfering with or obstructing the construction of a new temple building consisting of Goddess Maa Shringar Gauri, Lord Ganesh, Nandiji and other subsidiary deities at the principal seat of Asthan Adi Visheshwar after demolishing existing structures; (d) a mandatory injunction directing the Government of Uttar Pradesh and the Board of Trustees of Shri Kashi Vishwanath Temple to restore pooja and worship of Goddess Gauri Shringarji, Goddess Maa Ganga, Lord Hanuman, Lord Ganesh, Nandiji and Lord Adi Visheshwar, to make appropriate arrangements for darshan and pooja, and to maintain law and order., Historical background: The ancient temple at Dashashwamedh is said to have existed before the Vedic era, with Lord Shiva as Adi Visheshwar establishing a Jyotirlinga at Varanasi along with the Ganga. The temple has been a site of continuous worship for centuries, with rituals involving fresh Ganga water performed at the north of the Shivlingam. The temple was attacked and partially demolished by invaders from 1193 AD to 1669 AD, including by Aurangzeb, who issued orders in 1669 to destroy many temples, including the Adi Visheshwar temple at Benares. Despite demolition, the idols of Goddess Shringar Gauri, Lord Ganesh and other deities continued to be worshipped within the remaining structure, which later became known as the alleged Gyanvapi Mosque., Scholarly references: The Shri Kashi Vishwanath Temple Act 1983 was upheld by the Honorable Apex Court in *Shri Adi Visheshwar of Kashi Vishwanath Temple vs. State of Uttar Pradesh* (1997) 4 SCC 606, which discussed the importance of Adi Visheshwar in scriptures. Various verses from the Skand Purana, Shiv Purana and other texts describe the Avimukta Kshetra as a sacred area extending five Kos, the location of the Jyotirlinga, and the spiritual benefits of worship therein. Historical works such as *History of Benares* by Dr. A. S. Altekar and *The History of India as Told by Its Own Historians* by H. M. Elliot and John Dowson document the partial demolition of the temple and the subsequent construction of the alleged mosque, noting that portions of the original Hindu structure and the idol of Goddess Shringar Gauri remained under Hindu control., The plaintiffs contend that the Government of Uttar Pradesh has imposed restrictions on daily worship of Goddess Maa Shringar Gauri since 1990, limiting access to the temple to once a year on the fourth day of Vasantik Navratri. They assert that the government has no right to restrict entry on other days and that devotees have the right to worship and perform rituals daily. The plaintiffs seek restoration of unrestricted worship and the reconstruction of the temple at its original location.
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The Muslim engineers utilized structurally the central shrine of Vishwanath and the adjoining halls to its north and south; they converted the sanctuary of Vishwanath, which was thirty‑two square feet, into the central hall of the new construction. This hall is of the same dimension. Adjoining the central sanctuary, antechambers measuring sixteen feet by ten feet were retained in the new structure and can still be seen around the hall of the alleged mosque., The mandaps to the south and north of the shrine of Lord Visheshwar were converted into side halls of the alleged mosque. Being only sixteen feet by sixteen feet, they were too small for the purpose and were therefore enlarged into square halls twenty feet in dimension by incorporating the adjoining antechambers towards the central hall, which were eight feet in breadth, and by reducing the breadth of the wall towards the east and west by four feet each way., The eastern portion of the ancient temple could not be structurally utilized, so it was demolished. Part of the area was used for constructing an extensive verandah in front of the three halls of the alleged mosque. Pillars utilized for this verandah, however, elongate to the old temple and show Hindu lotus motifs upon them., The northern, western and southern boundaries of the alleged mosque are coterminous with those of the temple built by Raja Todarmal. On the eastern side its courtyard covers the entire Rangamandapa on the east belonging to the fifteenth‑century temple., A portion of the tahkhana is still in possession of Hindus., In 1777–1780 Queen of Indore Ahilya Bai Holkar constructed a new Sri Vishwanath temple adjacent to the old temple of Adi Visheshwar. In this case the original temple will be referred to as the ancient temple and the temple constructed by Ahilya Bai Holkar as the new temple., In 1809 Hindus recaptured the old temple. On 30 December 1810 the then District Magistrate Mister Watson sent a letter to the President of the Council suggesting to hand over the Gyan Vapi area to Hindus forever., The remnants of the Hindu temple can be seen on the walls of the alleged Gyan Vapi Mosque, which stands on the destroyed original Kashi Vishwanath Temple. The temple structure that existed prior to the construction of the alleged Gyan Vapi Mosque was built by Raja Man Singh., A temple structure can be seen at the alleged mosque’s rear wall, long believed to be the remnant of the original Kashi Vishwanath temple. In 1822 James Rinsep captioned an illustration of the rear wall as 'Temple of Vishveshvur' in his *Benaras Illustrated*. He wrote: 'The Hindus worshiped the plinth of the mosque as the plinth of the old Kashi Vishwanath temple.' M. A. Sherring (1868) wrote that the extensive remains of the temple destroyed by Aurangzeb were still visible, forming a large portion of the western wall of the mosque, and that the remnant structure also had Jain and Buddhist elements besides the Hindu ones., In 1698 Bishan Singh, the ruler of Amber, launched an initiative to build the Vishwanath temple. His agents surveyed the surrounding land and detailed various claims and controversies on the topic. His court purchased the land around the Gyan Vapi precinct but was unable to rebuild the temple., The building in question contains the image of the Swayambhu deity Goddess Shringar Gauri and images of a number of gods and goddesses, a number of objects of worship and Hindu religious facets within the structure from time immemorial. The religious character of the building complex as a Hindu place of worship is continuing to date despite the construction illegally raised by Muslims., The worshippers of Lord Shiva and Hindus in general are continuously worshipping Lord Adi Visheshwar, Goddess Shringar Gauri and other deities existing within the property in question. Circumambulation around the deity is an integral part of worship recognized by Hindu law. Thousands of devotees circumambulate through Parikaram Marg and perform other rituals, and on festive days they assemble in lakhs to perform pooja there., The deity Adi Visheshwar continues as de‑jure owner of the entire land of Settlement Plot No. 9130, 9131 and 9132 in Mauza Shahar Khas, Tahsil and District Varanasi., Aurangzeb passed the order for demolishing the temple in his capacity as sovereign. The land does not belong to any Muslim, body of Muslim or Waqf board., Deen Mohammed filed Civil Suit No. 62 of 1936 without impleading any member of the Hindu community but impleading only the Secretary of State for India through the District Magistrate, Benares, and Anjuman Intajamia Masajid, Benares, for a declaration that the land bearing No. 9130 situated in the city and District Benares, measuring one bhigha nine biswa and six dhurs together with enclosure all round described in the plaint, was Waqf in possession of that plaintiff and other Muslims had the right to say their prayers, especially Alvida prayers, and to exercise other religious and legal rights as the need and occasion arise., It is submitted that the Muslims filed the above‑mentioned suit only for declaration without seeking any consequential relief. This suit was filed even without impleading any person from the Hindu community. Therefore, the judgment passed in the suit is not binding upon any member of the Hindu community, but any document, map, evidence or statement of any witness can be referred to or relied upon by the members of the Hindu community., In Civil Suit No. 62 of 1936, on behalf of the Secretary of State for India in Council, the written statement was filed stating that the entire plot of land on which the mosque, pucca courtyard, stray grave, staircase in front of the gate, together with pucca enclosures all around and a pipal tree stand belongs to the Government and has never been dedicated nor could have been dedicated to the mosque. It also stated that the idols and the temple which stand there exist since long before the advent of the Mohammadan rule in India, and that the non‑Muslims have been using the land for their religious purposes as a matter of right and have a right of way over it. The allegation that they were permitted by persons in charge of the mosque is unfounded and baseless. It further stated that the land in question was never stamped with the character of Waqf land, was never dedicated to God, nor could it have been dedicated, and that God has no proprietary interest. It was also submitted that the Mohammadans of that time, including Aurangzeb, were not the owners of the site in which the old temple of Vishwanath existed and which was demolished by Aurangzeb owing to religious antipathy; hence it could not have been dedicated according to the true spirit of the Mohammadan faith., In Civil Suit No. 62 of 1936, on behalf of Defendant No. 2, the Secretary of State for India, a number of witnesses were examined, including Gauri Shankar, B. Mangala Prasad, Pandit Madho Ram Saud, Jagannath Prasad Mehta, Dawrka Das, Lakshmi Dass, B. Madho Prasad, Vinay Nand Tewari, Ramesh Chandra De, Ram Mohan Bhatia, M. Chandu Lal, Raghunandan Upadhya, Dr. Parmatma Saran, Dr. A. S. Altekar, and Hari Prasad Das. Their statements indicated that the worship of Goddess Shringar Gauri and other deities was performed in the precincts of the old temple; that Avi Mukteshwar was worshipped in invisible form; that Sringar Gauri was situated near Punch Mandap; that there were Gyan Mandap, Mukti Mandap, Varoj Mandap, Shobha Mandap and Sringar Mandap; that Markeshwar is underground and worshipped in invisible form; that Hindus are owners of the whole land and the entire area inside the boundary wall is in the possession of Hindus; that Panch Kosi Parikrama was undertaken by devotees; that pooja and worship of deities were ongoing within the old temple complex, giving the area the character of a Hindu place of worship; that Hindus have been worshipping the Asthan and also invisible deities according to Shastrik provisions; and that despite the partial demolition of the old temple during Aurangzeb’s regime, no mosque was constructed and the place could not be a Waqf property., The statement made by witnesses relating to the Asthan Adi Visheshwar and Goddess Shringar Gauri was not challenged by the Muslim side. Therefore, the evidence shows that Goddess Shringar Gauri has existed from time immemorial within the campus of the ancient temple and is being worshipped continuously, and that the Asthan Adi Visheshwar is also being worshipped continuously by devotees., The learned Civil Judge held that the shrine of Gauri Ji has been recognized to the west since long, that there was the deity of Bir Bhadeshwar to the north‑east in 1843, and that there is the place of Avi Mukteshwar to the north recognized in 1899., Deen Mohammed, aggrieved with the judgment of the trial court, filed First Appeal No. 466 of 1937, which was dismissed by the Honourable Allahabad High Court, reported in 1942., The demolition of the temple in the year 1669 was a sovereign act. However, Lord Adi Visheshwar, the deity along with other deities, continues as de‑jure owner of the property in question. After the fall of the Mughal Empire the property came under the control of the British sovereign, and after 1950 it came within the sovereign jurisdiction of the State of Uttar Pradesh in accordance with Article 294 of the Constitution of India., The subsequent sovereign, i.e., the British Government, did not recognize the legal existence of the alleged mosque and denied the rights of Muslims over the property, as evident from the written statement filed on behalf of the Secretary of State for India in Council in Civil Suit No. 62 of 1936. The State of Uttar Pradesh, exercising its sovereign power, passed Uttar Pradesh Act No. 29 of 1983, known as the Uttar Pradesh Kashi Vishwanath Temple Act, 1983, defining the temple as follows: 'Temple means the Temple of Adi Visheshwar, 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 Asthan of all other images and deities, mandaps, wells, tanks and other necessary structures and land appurtenant thereto and additions which may be made thereto after the appointed date.' The Uttar Pradesh State Legislature has recognized the deity Adi Visheshwar Jyotirlinga in its original form along with subsidiary deities existing from time immemorial within the old temple complex and the right of devotees to worship there. The entire property, including the old temple complex vested in deity Adi Visheshwar, is to be managed by a Board of Trustees. It is the duty of the State Government and the Board of Trustees to recover the entire property belonging to and dedicated to Adi Visheshwar and the Asthan which has been usurped and encroached upon by the Anjuman Intazamia Masajid Committee and its supporters., The property in question vests in the Board of Trustees constituted under the Uttar Pradesh Kashi Vishwanath Temple Act, 1983. The Board is obligated to manage the property, and the Waqf Board is required to hand over possession of the property to the temple trust., The worship of Lord Shiva, Goddess Shringar Gauri, Lord Ganesh and other deities continues within the property. The administration imposed hard conditions for the worshippers in 1993 with a view to appease the Muslim community. In 2000‑01 the administration, in the name of maintaining law and order, permitted Hindus to perform pooja only on the fourth day of Vasantik Navratras., The Asthan of the lingam vested in Adi Visheshwar extends up to five kos (approximately five miles) Parikrama Marg, i.e., in a circle around the lingam. No person has the right to raise any construction adverse to the interest of deity Adi Visheshwar; therefore, any such construction is liable to be removed and worship of the deity is liable to be restored within the property., Under Hindu law, which has been applied in India since before the B.C. era, once property has vested in a deity, it continues to be the deity’s property in perpetuity and the deity can never be divested from its property. As mentioned in the preceding paragraphs, there are idols and objects of worship within the property and the temple has not lost its religious character at any point., Muslims never obtained proprietary right over the property. No Muslim has dedicated the land to God because the property belongs to the deity. The deity will not lose its rights even though the temple was substantially damaged during foreign rule; the right of the deity over the property is never lost and the right of worshippers to perform pooja of the deity and the Asthan is protected under Hindu law., The property does not belong to any Waqf. The property had already vested in deity Adi Visheshwar many years before the start of the British calendar year and continues to be the property of the deity. No Waqf can be created on land already vested in a deity. Historical books written during the Mughal regime and thereafter, even Muslim historians, have not claimed that Aurangzeb, after demolishing the temple of Adi Visheshwar, created any Waqf or that any member of the Muslim community or ruler dedicated such property to Waqf., The Waqf Board has no power or jurisdiction to register any part of the property as Waqf property, and such registration cannot change the nature of the property from a Hindu temple into a mosque; any notification issued by the Waqf Board registering the property as Waqf is ultra vires, null and void., A mosque can be constructed over property dedicated by a waqif, who must be the owner of the property. A construction raised under the orders of any Muslim ruler or by any Muslim over the land of a temple cannot be construed as a mosque. A waqf can be created only on land dedicated to waqf by a waqif who is the owner of the land. In the instant case it is clear that from the time of the memorial the land and property belong to the deity, and therefore there can be no mosque there., From 15 August 1947 the character of the property was that of a Hindu temple, as the images of the plaintiff deities and associated deities were present and were being worshipped., If any superstructure has been created over the temple land by Muslims, it will be only a structure and cannot acquire the status of a mosque because over a Hindu temple already vested in the deity, no construction can change the nature of the temple property., The juristic personality of the deity under Hindu law has been explained by the apex Court in the famous Ayodhya case reported in 2019. Paragraph 115 states: 'A Hindu may make an endowment for a religious purpose. There is a public interest in protecting the properties endowed and ensuring that the original pious purpose of the dedicator is fulfilled. The law confers legal personality on this pious purpose... The idol, as the material manifestation of the juristic person, is looked upon as the centre in which the property vests.' Paragraph 116 adds that the idol constitutes the embodiment of the pious purpose, and even if the idol is destroyed, the legal personality continues to subsist., The principles of Mohammedan law have been compiled by Sir Dinshaw Fardunji Mulla. In the twenty‑first edition of the book, the subject of waqf is given. Relevant paragraphs are reproduced below: Paragraph 173 defines waqf as a permanent dedication by a person professing the Muslim faith of any property for any purpose recognized by Muslim law as religious, pious or charitable. Paragraph 174 states that the subject of waqf must belong to the waqif at the time of dedication. Paragraph 188 provides that if land has been used from time immemorial for a religious purpose, such as a mosque or burial ground, then the land is waqf by usage even without an express dedication., It is apparent that the entire land vested in the deity Lord Adi Visheshwar and He is the owner of the property in question, which was usurped by Aurangzeb in his capacity as ruler. The property did not belong to him. In any case there is no evidence that the property was dedicated to the Almighty., The alleged Gyan Vapi Mosque is only a structure and cannot be regarded as a mosque. Moreover, the disputed construction has not been erected over any waqf property. The principle of waqf by usage cannot be applied because the alleged Gyan Vapi Mosque was constructed after demolishing a Hindu temple in 1669 at the same place, and the date of construction of the alleged mosque is well known., The Parliament passed the Places of Worship Act, 1991. Section 2 defines 'commencement' as 11 July 1991, 'conversion' as alteration or change of whatever nature, and 'place of worship' as a temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination. Section 3 bars conversion of any place of worship of any religious denomination into a place of worship of a different denomination. Section 4 declares that the religious character of a place of worship existing on 15 August 1947 shall continue to be the same as it existed on that day, and provides for the abatement of pending suits concerning conversion., In view of the provisions of the Act, the Honourable Allahabad High Court has to determine the religious character of the place in question on 15 August 1947 and whether it was a place of Hindu or Muslim worship, and whether a superstructure can convert a temple into a mosque or vice versa., To find out the religious character of the property, one must consider the historical and religious background of the entire Avimukt area, the nature of the construction raised by Muslims, the continued existence of deities within the building complex, the sentimental attachment of devotees, and the daily Panch Koshi Parikrama performed around the entire complex., Section 4 of the Places of Worship Act uses the term 'religious character' to mean that a temple, mosque, church, gurudwara, etc., should be constructed according to the tenets of the religion without encroaching upon the land of another faith., From the narration of facts and available evidence it is clear that the Asthan of Adi Visheshwar Jyotirlingam is being worshiped in a radius of five kos, and the entire area is sacred for the devotees of Lord Visheshwar; the five‑kos area is an essential and integral part of worship over which the deity exists from time immemorial., If any portion of a temple is demolished under the orders of a ruler and a superstructure is put thereon, the same will not change the religious character of the shrine., It is historically proved that Aurangzeb, the ruler in the series of Mughal invaders, demolished the upper portion of the temple of Adi Visheshwar at the property in question in 1669, and thereafter a construction was raised on the first floor, which Muslims call Gyan Vapi Mosque, but pooja and worship in other parts of the temple complex, including the deities Goddess Maa Shringar Gauri, Lord Ganesh, Lord Sun and other gods and goddesses, continued within the old temple premises and throughout the entire Shivlingam area of five kos., The evidence recorded in Civil Suit No. 62 of 1936 reflects that the entire area of five kos had the religious character of Sanatan Dharma., It has been proved by the witnesses that worship was performed at Gauri Shankar, Tarkeshwar, Nand Kesheswar, Mahaoleshwar beneath the pipal tree at the south‑east corner, then at Gyan Vapi well, Ganesh Ji known as Madadi Panch Vinayak, then Maheshwar under a third pipal tree, then Mukteshwar in a hidden place at the south‑west corner, then Sringar Gauri in the western chabutra, then Panch Mandap near Shringar Gauri, then Ganesh Ji image embedded in the wall, then Chandreshwar in the north‑west corner, and thereafter worship of Avimukteshwar in invisible form at the northern gate., The witnesses also proved that after worshipping the deities in visible and invisible form, the devotees circumambulated the five‑kos Parikrama Marg., The building constructed during Aurangzeb’s regime was built over the pillars existing in the old temple. One witness deposed that over the pillars there are still images of trishul, chandra and other Hindu symbols, and that the ceiling stones bear bell marks, churi marks and flower motifs.
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In the former suit witnesses deposed that there are special forms of idol, including hidden forms where the idol is inside the ground. There are Gyan Mandap, Mukti Mandap, Varoj Mandap, Sobha Mandap and Sringar Mandap; these five together are called Panch Mandap, which exists within Khandhar., Avi Mukteshwar is worshiped there as Asthan and Markendeshwar is also hidden underground since ancient times. According to Khashi Khand there are hidden deities at the place in question, and in the Khandhar area there is an image of Lord Ganesh., Witnesses in Suit No. 62 of 1936 stated the manner in which devotees performed pooja and observed rituals within the old temple compound and within the area of five Kos (Krosh) Parikrama Marg. Devotees undertake Ant Grahi Parikrama and Panch Kos Parikrama. Witness Gauri Shankar described that Panch Kos Parikrama commences with a bath at Manikanika, then proceeds to Vishwanathji Annuprurna, Dhundhraj Ganesh, Gyan Vapi, rests in Vishram Mandap, takes the Sankalpa, vows silence and starts the Panch Kosi Parikram. A Vyas Gaddi inside the Baradari near the well is where the pilgrim rests and takes the vow, after which they go round the mandap, the baradari, the floor to the Shringar Gauri Panch Mandap, exit through the eastern gate to the Manikanika side, drink water thrice, break the vow of silence, go by the Ganges bank, walk five days around Benares, return to Manikanika and then go to Vishwanathji., Other witnesses named above stated the same facts as Gauri Shankar. All witnesses confirmed the ongoing pooja of the Asthan, Goddess Sringar Gauri, Lord Ganesh and of existing visible and non‑visible deities, and the Parikrama being undertaken by devotees throughout the place. Evidence also showed that Thahkahana on the southern side was in possession of Hindus and managed by the collector, and that there were shops at the northern gate of the compound with a Naubat Khana of the old temple above it. Generally Naubat Khanas are on temple gates and open on three sides. Witnesses stated that Hindus worship in the old temple area from 3:00 am to 12:00 midnight., The witnesses confirmed that worship is done all over the compound. The deities Goddess Sringar Gauri, Lord Ganesh, Lord Sun, Nandiji, Gyan Vapi including Gangeshwar, Shiva Parvati, Tarkeshwar, Badri Narayan, Panch Mandapa and invisible gods were being worshiped within the old temple complex. Many places are worshiped because gods existed there and marks of the gods are on the western wall. For the old Vishwanath also the Gyan Vapi well is worshiped., The witnesses stated that the land of the old temple and the western Khandahar belong to the Government. To the south of the alleged Gyan Vapi Mosque there is an underground cell which is in possession of Hindus., Dr. A. S. Altekar, then Head of the Department of Ancient Indian History and Culture at Banaras Hindu University, appeared as a witness. He stated that Hindus used to visit these ruins and pay obeisance to the empty sanctuaries of Vishwanath and other gods, following the theory of Sthan Mahapuraj sanctity of the place. He deposed that Exhibit 20 is a photo of Sringar Gauri and Exhibit 21 is of what is presently worshiped as Panch Mandap. At present Panch Vinayaks are worshiped near the Gyan Vapi., The witnesses confirmed that around 1937 the place in question had a Hindu religious character, a position that continued up to 1947 and thereafter, maintaining the character of a Hindu place of worship., Based on un‑rebutted oral evidence recorded in Civil Suit No. 62 of 1936 and other evidence, it is clear that on 15 August 1947 and till date the property in question has been a Hindu place of worship. Even if Muslims have encroached upon the land and raised a super‑structure over a small area of the temple complex, the religious character of the temple is unchanged. Encroachment cannot legalise an illegal action., In Civil Suit No. 637 of 1996, dismissed in default on 6 December 2014 by an order of the Civil Judge, Varanasi, an advocate commissioner made a spot inspection on 30 July 1996 and submitted a report. The report confirmed that remains of a demolished structure were visible. On the western side, after closing three doors and over the debris, another structure resembling a mosque had been raised. Materials of the demolished structure were present in a chabutra on the western side. Apparent pooja of Lord Ganesh, Sringar Gauri and other deities was being performed. The Parikrama path existed on the southern side where a Tahakhana (cellar) lay beneath a large chabutra; in front of it were the Gyan Vapi well, Nandiji, Gauri Shankar and Maheshwar. One key to the Tahakhana was with plaintiff No. 2 (Som Nath Vyas) who opened the lock; another lock placed by the administration was not opened for lack of direction. The Parikrama path was obstructed by new barricading on the southern side., From the foregoing facts it is abundantly clear that the property in question has uninterruptedly continued the character of a Hindu place of worship. Therefore, Section 4 of the Places of Worship Act can be applied in favour of the temple and devotees., The old temple and Asthan are dedicated to Lord Shiva and the entire temple complex has vested in the deity from ancient times, i.e., from thousands of years before the Islamic rule. It is a well‑established principle of Hindu law that property vested in a deity continues to be the property of the deity and no ruler can take possession of such property. If any person or ruler usurps the property of a deity, the ownership reverts to the deity as soon as the cloud of usurpation is removed., The property in question is not a waqf property because, as per Hindu law, property vested in a deity remains deity property. A mosque can be constructed only on waqf property, which must be created by a waqif who is the owner. In this case Aurangzeb did not create any waqf nor bequeath the property to God; therefore the construction cannot be presumed to be a mosque., The entire property within a radius of five Kos (Krosh) vests in the Asthan Adi Visheshwar from time immemorial, and the deity is the owner of the entire land and property. The deity continues to be the de‑jure owner despite a portion of the temple complex being demolished during the reign of Aurangzeb and a super‑structure being raised there, claimed to be a mosque. Forced possession of a religious place cannot change the nature of the property or the ownership rights of the deity., The Kashi Vishwanath Act recognises the right of the deity over the property, and after enforcement of the Act it is the duty of the State Government and the Trust Board to restore the deities in the old temple complex with honour and dignity., At present no Shebait is managing the property of the deity in the old temple complex, and the Trust Board as well as the Uttar Pradesh Government have not taken steps to implement the provisions of the Kashi Vishwanath Act. Consequently, it is the duty of the devotees and worshippers to seek appropriate remedy by filing the suit for the reliefs claimed., Parliament has no power to make any law that takes away or abridges the rights conferred by Article 25 of the Constitution of India. Section 4 of the Places of Worship Act infringes the right to religion of Hindus by removing their remedy to approach the court, and is therefore ultra vires and void., Section 4 of the Act, 1991 is ultra vires as it infringes the rights of the Hindu community guaranteed under Articles 14, 15, 25 and 29 of the Constitution of India. The provisions of Section 4 are against the basic concept of secularism; a secular state must not favour any community. It is the duty of the State to remedy atrocities committed in the pre‑independence era according to law, and illegal actions, damage to religious property and distortion of cultural heritage must not be legalised. A sovereign republic governed by rule of law cannot bend before a religious community due to fear or favour. Section 4 is irrational, illogical, discriminatory and violates Article 14. It validates barbaric, illegal and immoral actions of invaders, contrary to constitutional morality. Encroachment of land, desecration of temples, mutts and trust property are continuing wrongs, and the basic right of citizens to approach the court cannot be taken away. The right to worship and maintenance of religious property flows from Articles 25 and 26. Parliament has no legislative power to bar judicial review. By enacting Section 4, Parliament has barred the right and remedy of Hindus against encroachment by followers of another faith. The right to seek judicial remedy is a facet of the rule of law under Article 14. Hindu law is a law in force within the meaning of Article 372(1) of the Constitution. Section 4 is ultra vires Articles 14, 15, 25, 26 and 29 and is void under Article 13(2). Any order, rule, regulation, custom or usage contrary to Articles 25 and 26 is void under Article 13(1). Construction of any religious structure at the place of deity under any order passed before 15 August 1947 is void under Article 13(1). The right to religion guaranteed under Article 25 protects the pre‑independent rights of Hindus; usurped possession obtained by illegal means becomes null and such religious places must be restored. Hindu law that a deity is immortal and property once vested in the deity continues as deity property is protected by Article 25. Parliament cannot negate Hindu law protected by Article 25 nor interfere with rights enshrined in the Vedas, Śāstras, Upaniṣads, Smṛti and other scriptures. Citizens have a fundamental right and duty to protect religious and cultural heritage. Section 4 of the impugned Act violates the fundamental rights of Hindus under Articles 14, 15, 25, 26 and 29. The Act curtails the right of Hindus to claim possession of their religious and cultural properties, whereas no limitation period exists for waqf properties. The Act discriminates by excluding the Ayodhya dispute and provides no intelligible criteria to keep other religious property out of judicial purview. By the Act Hindus are discriminated before law in violation of Articles 14 and 15. The Act violates the principle of secularism by curbing the right of Hindus to restore cultural and religious places damaged before 15 August 1947, even through the courts. The 1991 Act discriminates on the basis of religion and curtails the right of Hindus to seek judicial remedy, while Section 40 of the Waqf Act, 1995 empowers the Waqf Board to declare any property as waqf without limitation. Section 107 of the Waqf Act makes waqf property immune from the Limitation Act, a benefit not available to non‑Islamic religions. Section 107 is discriminatory, violates Articles 14 and 15 and is void ab initio. Article 13(1) declares that all laws inconsistent with the Constitution are void, and Article 13(2) prohibits the State from making any law that abridges the rights conferred by the Constitution., In view of the provisions of Article 13(1) of the Constitution, the order and action of the former ruler for demolishing the temple at the place in question and forcibly taking possession of the religious place have become void and inoperative., Parliament cannot legalise the illegal action of an invader which infringes the religious rights of citizens guaranteed under Article 25., The right to religion, as conferred by Article 25, is subject to the condition that it does not hamper morality, public order or health. The State and any citizen cannot promote anything immoral, against public order or detrimental to public health, nor can they perpetuate past inhuman actions of invaders., It is the duty of the State to maintain public order and not allow anything that may create public disorder. Political motives that support the continuance of past injustices would create dissatisfaction, chaos and disorder, undermining the constitutional goals of equality and freedom of religion., It is a matter of history that Hindus faced Islamic intolerance from 1192 to 1707 and thereafter under the British. Varanasi is the abode of Lord Shiva, where the Lord appeared as a self‑manifested deity and created a five‑Kos Avimukteshwar area and a jyotirlinga. The temple there was demolished by Muslim invaders, and Hindus cannot be compelled to suffer continuous mental and spiritual shock caused by such acts., The Constitution of India, by enacting Article 13(1), has nullified all illegal actions of invaders committed during seven hundred years of slavery. Consequently, cultural and religious places must be restored., The plaintiffs and the devotees of Lord Adi Visheshwar have a fundamental right of religion guaranteed by Article 25, which cannot be hampered by the State or any person. Any order or action violating this right is void under Article 13(1). Therefore, the plaintiffs are entitled to the liberation of the Adi Visheshwar shrine and restoration of religious rights over the place in question., The Indian Constitution is transformative; Article 13(1) voids illegal, inhuman and barbaric orders, usages, practices and commands issued by previous sovereigns that run counter to any constitutional provision, including Article 25. Parliament or State Legislatures cannot legalise such laws, making Section 4 of the Act void ab initio., The right to religion is a spiritual right inherent to life and has no embargo or limitation. It accrues every day and every moment., Notice to the Central and State Government: A notice under Section 80 of the Code of Civil Procedure was sent to the Government of India and the Government of Uttar Pradesh by speed post on 19 November 2020, delivered on 23 November 2020. A notice was sent to the Chief Secretary of Uttar Pradesh on 20 November 2020, delivered on 23 November 2020. Another notice dated 3 December 2020 was sent to the Government of India, the Chief Secretary of Uttar Pradesh, the District Magistrate and the Senior Superintendent of Police, Varanasi, and was delivered on 7 December 2020 and 10 October 2020. No reply has been received from the defendants., Notice to the Waqf Board: A notice under Section 89 of the Waqf Act, 1995 was sent to the Uttar Pradesh Sunni Waqf Board by speed post on 19 November 2020 and 3 December 2020, delivered on 23 November 2020 and 7 December 2020 respectively. No reply has been received from the defendant., Cause of Action: Continuous wrongs are being committed by defendants No. 5 and No. 6. The State has not taken steps to restore the religious rights of the plaintiffs. The cause of action arose on 23 January 2021, 2 February 2021 and 10 February 2021 when the defendants failed to act to redress the plaintiffs' grievance., Court Fee and Reliefs: The property in suit is used for religious purposes on which no municipal tax is payable and cannot be valued in monetary terms. The suit is filed for a decree of declaration and injunction. The valuation for court fee purposes is Rs 15,00,000. The court fee paid is Rs 1,400, covering declaration reliefs, perpetual injunction and mandatory injunction against the State Government and the Board of Trustees., Prayer: The Honourable High Court of Allahabad is respectfully prayed to (A) declare that worshippers of Goddess Sringar Gauri, Goddess Ganga, Lord Hanuman, Lord Ganesh, Nandiji and Lord Adi Visheshwar are entitled to darshan, pooja and worship within Settlement Plot No. 9130 at Dashashwamedh, Varanasi; (B) declare that the entire Avimukteshwar area belongs to the plaintiff deity Asthan Lord Adi Visheshwar within a radius of five Kos from the principal seat; (C) issue a perpetual injunction prohibiting defendants and their agents from interfering with the construction of a new temple comprising Goddess Sringar Gauri, Lord Ganesh, Nandi Ji and other subsidiary deities at the principal seat of Asthan Adi Visheshwar, after demolishing existing structures; (D) issue a mandatory injunction directing the Government of Uttar Pradesh and the Board of Trustees of Kashi Vishwanath Temple, created under the Shri Kashi Vishwanath Temple Act, 1983, to restore pooja and worship of the deities and maintain law and order; (E) pass any other decree deemed fit in the interest of justice; and (F) decree the suit with costs in favour of the plaintiffs., Verification: The plaintiffs verify that the contents of the specified paragraphs of the plaint are true to their knowledge, based on records, belief or legal advice, and that nothing has been concealed.
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Signed and verified this 17 seventeenth day of February, 2021 (Two Thousand and Twenty One) within Civil Court Compound Varanasi, Uttar Pradesh.
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Should the irretrievable breakdown of marriage necessarily result in dissolution of marriage in exercise of powers under Article 142 of the Constitution of India, when such is not a ground for divorce under the Hindu Marriage Act 1955?, The appellant is a qualified doctor and retired Wing Commander of the Indian Air Force on 30 April 1990. The respondent is a qualified teacher who retired from a Central School. The appellant filed divorce proceedings on 12 March 1996 before the District Court, Chandigarh on two grounds, cruelty and desertion, as contemplated in Section 13(1)(ia) and Section 13(1)(ib) of the Hindu Marriage Act 1955., The instant appeal is directed against the judgment and order dated 18 February 2009 passed by the High Court of Punjab and Haryana at Chandigarh in Letters Patent Appeal No. 195/2001 in First Appeal Original No. 44‑M/2000 preferred by the appellant‑husband. The Division Bench of the High Court dismissed the LPA and confirmed the judgment and decree dated 21 December 2000 passed by the Single Bench in First Appeal Original No. 44‑M/2000. That decree was preferred by the respondent‑wife against the judgment and decree dated 5 February 2000 passed by the District Judge, Chandigarh (hereinafter referred to as the District Court) in Hindu Marriage Act No. 63 of 1996, which had dissolved the marriage under Section 13 of the Hindu Marriage Act., The parties were married according to Sikh rites on 10 March 1963 at Amritsar. The marriage was consummated and they have three children – two daughters, Harpreet Kaur and Rupdaman Kaur (both married), and a son, Kunwarjit Singh Panesar. The appellant was serving in the Indian Army and the respondent was a teacher in a Central School in Amritsar. Relations were normal until January 1984. Acrimony developed when the appellant was posted to Madras in January 1984 and the respondent chose to stay with the appellant’s parents and later with her son. Despite sincere efforts, the differences could not be resolved, leading the appellant to file divorce proceedings., The District Court granted the decree of divorce as prayed for by the appellant; however, the Single Bench of the High Court reversed the decree, and the Division Bench of the High Court confirmed the reversal., Both parties are elderly; the appellant is about 87 years old and the respondent about 82 years old. The Supreme Court of India, considering their age, expected them to sit together and explore an amicable settlement, but the attempt failed, so the Court had to hear the learned counsels on merits., Mr. Vipin Gogia, learned advocate for the appellant, submitted that the High Court erred in reversing the well‑reasoned decree of divorce granted by the District Court, which had concluded that the respondent had treated the appellant with cruelty and had deserted him without reasonable cause. He argued that the respondent’s refusal to join the appellant in Madras, failure to care for him despite his heart problem, and complaints to Air Force authorities constituted cruelty, citing Naveen Kohli v. Neelu Kohli. He further submitted that the parties have been living separately since the filing of the divorce petition and that the marriage is irretrievably broken down, urging the Court to exercise powers under Article 142 of the Constitution of India to grant a decree of divorce, relying heavily on the recent Constitution Bench decision in Shilpa Sailesh v. Varun Sreenivasan., Ms. Madhurima Tatia, learned advocate for the respondent, submitted that the respondent, being an aged lady, does not wish to die with the stigma of being a divorcee. She stated that the respondent has always respected the sacred relationship and is still ready to look after the appellant with the assistance of her son. She argued that a long period of separation does not amount to an irretrievable breakdown of marriage and that the appellant has failed to make out any ground of cruelty or desertion. Therefore, the Court should not interfere with the findings of the Single Bench and the Division Bench of the High Court., The Court notes that allegations of cruelty and desertion are legitimate grounds for divorce under Section 13(1) of the Hindu Marriage Act. Cruelty is defined as conduct of one party that adversely affects the other, which may be mental or physical, intentional or unintentional. The Court cites the principles summarised in Naveen Kohli (supra), Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan [(1981) 4 Supreme Court Cases 250], and Shobha Rani v. Madhukar Reddi [(1988) 1 Supreme Court Cases 105], emphasizing that cruelty need not involve physical violence and that intention is not a necessary element., The Court reiterates the settled law on desertion under Section 13 of the Hindu Marriage Act, referring to Bipin Chandra Jai Singh Bai Shah v. Prabhavati and Lachman Utam Chand Kirpalani v. Meena alias Mota. The petitioner must prove (i) factum of separation, (ii) animus deserendi, (iii) absence of consent, and (iv) absence of conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The Court also cites Debananda Tamuli v. Kakumoni Kataky and the Explanation added to subsection (1) of Section 13 by Act 68 of 1976, which defines desertion as abandonment without reasonable cause or consent, including wilful neglect., The Single Bench of the High Court held that the appellant failed to prove the grounds of cruelty and desertion and reversed the decree of divorce. The Division Bench confirmed this order, observing that the wife continued to live with the husband for 21 years, looked after the children, and that the grievance arose only when the husband was transferred to Madras. The Court found no animus deserendi on the part of the wife and no cruelty, and held that the burden of proof lies on the appellant., The appellant’s counsel referred to Exhibit A‑8, a letter addressed to the wife regarding maintenance, and Exhibit A‑17, a letter from the appellant’s son requesting money to be sent to the Court. The letter indicated attempts at reconciliation and continued monthly remittance of Rs 800 by the appellant., The appellant’s counsel suggested that a granddaughter could visit the appellant, in which case the appellant would have no objection to the jewellery being given to the granddaughter. The wife’s counsel stated that the granddaughter would visit as often as possible, not as a condition for upholding the Single Judge’s finding. The Single Judge ordered the Bank of Baroda, Sector 22, Chandigarh, to hand over all jewellery lying in the locker to the wife., The Court does not propose any view different from the Single Bench and Division Bench of the High Court. The appellant failed to prove that the respondent treated him with cruelty or deserted him as contemplated in Section 13(1)(ia) and Section 13(1)(ib) of the Hindu Marriage Act., The appellant seeks a decree of divorce on the ground of irretrievable breakdown. While the parties have been living separately for many years and attempts at reconciliation have failed, the Court must consider whether such breakdown necessarily results in a decree of divorce under Article 142 of the Constitution of India., The Constitution Bench in Shilpa Shailesh v. Varun Sreenivasan observed that granting divorce on the ground of irretrievable breakdown is a discretion, not a right, and must be exercised with great care, considering factors such as period of cohabitation, last cohabitation, nature of allegations, cumulative impact, attempts at settlement, length of separation (generally six years or more), economic and social status, age, children, custody, alimony, and other pending matters. The Court emphasized that it would not codify the factors but consider them case‑by‑case., The Court held that it can depart from procedure and substantive law under Article 142(1) of the Constitution of India to achieve complete justice, including dissolving marriage by mutual consent without following Section 13‑B of the Hindu Marriage Act, and can quash related proceedings under the Domestic Violence Act, Section 125 of the Criminal Procedure Code, or criminal prosecutions under Section 498‑A of the Indian Penal Code. The Court may also grant divorce under Article 142(1) even when one spouse opposes, provided the marriage has completely failed., The Court notes that the institution of marriage occupies an important place in society and should not be treated as a mere formulaic ground for divorce. Considering the respondent’s sentiment of not wanting to die with the stigma of being a divorcee, and her willingness to care for the appellant, the Court is not inclined to dissolve the marriage on the ground of irretrievable breakdown, as it would not do complete justice to the respondent., The appeal is dismissed.
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Case No. 111/N Date of Institution: 31.12.2020 CNR No: JKSG020052792020 Irzan Kounsar Khan son of Kounsar Ahmad Khan residing at Gulberg Colony, Hyderpora, Srinagar, through his brother Ilhan Kounsar Khan son of Kounsar Ahmad Khan residing at Gulberg Colony, Hyderpora, Srinagar (Plaintiff), through Advocate Mr. Hazim Qureshi & Associates. Defendants: Press Trust of Kashmir, press colony Srinagar; Kashmir News Trust, press colony Srinagar; Current News Service (CNS), press colony Srinagar; Global News Service (GNS), press colony Srinagar; Kashmir News Service (KNS), press colony Srinagar; Fast Kashmir, press colony Srinagar; Chowdhary News Agency, press colony Srinagar; Gulistan News, press colony Srinagar; Kashmir News Service, press colony Srinagar (Defendants). Civil Original Suit., CORAM: Mr Shabir Ahmad Malik, Unique Identification No. JK00 247. The above‑titled suit has been assigned to this District Court, Srinagar by the Court of the Worthy Honorable Principal District Judge, Srinagar for disposal under law. Office report was called, the plaint was found in order. Let the same be diarized in the concerned register. Along with the main suit, learned counsel for the plaintiff has filed two miscellaneous applications: an application for temporary injunction and an application for dispensation of notice under Order 39 Rule 3 of the Code of Civil Procedure., Precisely, the case of the plaintiff is that he is a citizen of India residing within the Union Territory of Jammu and Kashmir and is entitled to maintain the instant suit for securing the rights available to him under law, which are being unnecessarily, arbitrarily and capriciously violated at the hands of the defendants. Irzan Kounsar Khan is the son of prominent hotelier Kounsar Ahmad Khan son of Late Abdul Rashid Khan residing at Gulberg Colony, Hyderpora, Srinagar, and belongs to a most reputed family. He is also a hotelier who has been conducting his business without any complaint, but a few days before he was arrested by the Budgam police station on alleged charges that he kidnapped and brutally sexually assaulted a 23‑year‑old girl., The present suit is made for the purpose of redressing the omission and commission done by the defendants, as they have uploaded news on their web portals and social media without ascertaining the real facts of the case, stating that the plaintiff has sexually assaulted the 23‑year‑old girl from Budgam. Such statements have perished the prestige, dignity, honour and status of the plaintiff’s family and have caused mental agony, pain and loss of business. The defendants, despite knowing that the case is pending before the competent court of law, uploaded the news, leading to mental agony and humiliation for the plaintiff and his family. The plaintiff is not involved in the commission of offences; he has been implicated by the complainant without any direct or indirect connection. The brother of the plaintiff personally visited the office of the defendants seeking clarification and made it clear that his brother is not involved in the alleged offence, but the defendants threatened the plaintiff with dire consequences. The defendants, who are highly influential persons, asserted that they have every right to upload any news whether true or false. The plaintiff tried to persuade them that the matter is pending before the court of law and that the person arrested is not guilty until proven, but the defendants remained adamant and continued to upload the news without any permission from the concerned authorities., From the above facts and circumstances it is clearly reflected that the defendants have deliberately and mischievously acted with mal‑fide intentions to defame the status, dignity, honour and reputation of the plaintiff and his family members without any right, authority or cogent reason, constituting a media trial in which the plaintiff is shown as accused without proper justification or judgment from the court of law. The cause of action arose when the defendants uploaded the news on their web portals and social media against the plaintiff, and the cause of action is still continuing. The plaintiff prays that this District Court, Srinagar may be pleased to pass the following reliefs: (A) a decree of declaration, declaring the acts of omission and commission on part of the defendants as illegal, unconstitutional and bad in the eye of law; (B) a decree of permanent injunction restraining the defendants from uploading any news on their web portals or social media vis‑à‑vis the plaintiff in any manner till the outcome of the case pending before the competent court of law; (C) a decree of perpetual injunction commanding the defendants to remove the news items which they have uploaded on their web portals and social media; (D) a decree of prohibitory injunction commanding the defendants not to defame the reputation, honour, dignity and status of the plaintiff and his family members while uploading news on social media or their web portals., The counsel of the plaintiff pleaded that the defendants have uploaded news on their web portals and social media without ascertaining the real facts of the case, stating that the plaintiff has sexually assaulted the 23‑year‑old girl from Budgam. The learned counsel also pleaded that the plaintiff is the son of a prominent hotelier and that his prestige, dignity, honour and status, as well as the family business, will be perished and they have suffered a great deal of mental agony and pain., Heard learned counsel for the plaintiff and considered the plaint as well as the applications. Considering the urgency involved, issuance of prior notice is dispensed with in terms of Order 39 Rule 3 of the Code of Civil Procedure and the application for ad‑interim relief is taken up for consideration. While deciding the application for grant of interim relief the District Court, Srinagar is guided by the rule of trinity i.e., prima facie case, balance of convenience and irreparable loss. Before granting any relief, the plaintiff must establish that the prima facie case is in his favour, the balance of convenience tilts in his favour and he may suffer irreparable loss if relief is not granted. The plaintiff claims that the defendants have uploaded news on their web portals stating that the plaintiff has been arrested by Budgam police in connection with kidnapping and brutal sexual assault of a 23‑year‑old girl, causing mental agony and humiliation to the plaintiff and his family. The court notes that while deciding an interim application no mini‑trial is to be conducted; a prima facie case requires serious consideration, not proof at this stage, and a reasonably arguable question is sufficient. The plaintiff has succeeded in establishing a prima facie case. The court must assess who shall suffer greater hardship that cannot be undone and who shall suffer irreparable loss if relief is not granted. Difficulty in assessing damages may justify interlocutory relief where precise monetary compensation is uncertain. If ad‑interim relief is not granted, the defendants may continue publishing derogatory and defamatory statements against the plaintiff and his family, causing irreparable loss to reputation. The balance of convenience therefore tilts in favour of the plaintiff, and the plaintiff may suffer irreparable loss that cannot be compensated later., The learned counsel also pleaded that the defendants have unnecessarily dragged the name of the plaintiff’s father into the matter, causing immense mental agony to the family and damaging their reputation and honour. One of the news reports is titled ‘Prominent and Influential Hotelier Trying to Close the Case as Accused is His Son’, which tends to malign the image of family members who are not accused. The well‑established principle of criminal jurisprudence that every person accused of an offence is presumed innocent until proven guilty applies. Allowing the defendants to publish derogatory material may not only defame the plaintiff and his family but also interfere with a fair and impartial investigation. While the media has the fundamental right of free speech and expression, that right is not greater than the rights of an individual. It is the legally bound duty of the District Court, Srinagar to protect the fundamental and legal rights of the parties. Every person has a right to life and personal liberty, which includes human dignity. Even an accused is entitled to fundamental rights, which do not differentiate between a common man and an accused. The defendants are conducting a media trial by dragging the name of the plaintiff’s father and family members into the case. Therefore, the court intervenes to protect the plaintiff’s fundamental and legal rights. At this stage the plaintiff has established a prima facie case and the balance of convenience lies in his favour; if interim relief is not granted, the plaintiff may suffer irreparable loss., Therefore, notice is issued in the application for filing objections and summons in the main suit for filing written statement. The defendants are temporarily restrained from publishing any derogatory and defamatory statements, contents or news reports against the plaintiff or his family members till the next date of hearing. The defendants are further directed to suspend the links of any derogatory and defamatory statements or contents already published on social media, internet or news portals. This order shall be subject to objections by the other side, who are at liberty to avail the remedy under Order 39 Rule 4 of the Code of Civil Procedure. The plaintiff shall comply with Order 39 Clause A and B and shall file a service affidavit within the statutory period.
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id_1871
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Uday Pratap Singh, Union of India and others. Present: Mr. Uday Pratap Singh, Advocate petitioner in person; Mr. Arvind Seth, Advocate petitioner in person; Mr. Satya Pal Jain, Additional Solicitor General of India, with Mr. Dheeraj Jain, Senior Panel Counsel, Union of India; Mr. Gurminder Singh, Advocate General, Punjab, with Mr. Ferry Sofat, Additional Advocate General, Punjab, and Mr. M.S. Longia, Additional Advocate General, Punjab; Mr. Deepak Sabharwal, Additional Advocate General, Haryana; Mr. Anil Mehta, Senior Standing Counsel, Union Territory Chandigarh, with Mr. J.S. Chandail, Additional Standing Counsel, UT Chandigarh; Ms. Garima Pandey, Advocate; Mr. Manish Bansal, PP, UT Chandigarh; and Mr. Navjit Singh, Advocate, for Union Territory Chandigarh., In compliance with the order dated 13 February 2024, affidavits have been filed by the States of Punjab, Haryana and the Union Territory Chandigarh. The affidavit of Mr. T.V.S.N. Prasad, Additional Chief Secretary to the Government of Haryana, shows that without seeking any permission or providing information to the authorities, the march is being organised. The protest has been planned along the lines of the year‑long blockade of Delhi undertaken in 2020‑21, which is likely to affect day‑to‑day life and freedom of movement of lakhs of citizens in the National Capital Region., The reference is also made to the incident of removal of the Tricolour at Red Fort on 26 January 2021. National Highways are the lifeline for the North Indian states and camping at the borders of Delhi would obstruct this lifeline. The protest is likely to create disruption to law and order, security situation and blockades causing inconvenience. The economy of nearby areas would be affected, leading to losses to industrial activities and consequent unemployment. Fear among citizens that the farmers’ unions would choke the movement of persons, essential goods and services, which would have an adverse effect on industrial and economic activities and lead to suffering of huge losses of several crores of rupees, as occurred in the NCR during the agitation of 2020‑21, is also mentioned., The affidavit records efforts to break the barricades at Shambhu Border in District Ambala, where police resorted to use of anti‑riot equipment as per legal provisions and more than ten police personnel were injured. The areas earmarked for peaceful agitation in Yamunanagar, Charkhi Dadri, Kurukshetra, Jhajjar, Panchkula and Karnal districts are listed in Annexure R‑5. The affidavit of Shri Mridul, Indian Police Service, Superintendent of Police (City), UT Chandigarh, concerns information received regarding the march to Delhi on 13 February 2024. Special arrangements have been made as per the order dated 11 February 2024 (Annexure R‑6/1) and an advisory has been issued as a precautionary measure to avoid inconvenience to the public. Section 144 of the Code of Criminal Procedure has been imposed from 20 January 2024 to 19 March 2024, vide order dated 19 January 2024 (Annexure R‑6/2)., The affidavit of Shri Arpit Shukla, Indian Police Service, Special Director General of Police, Law and Order, Punjab, mentions meetings held on 8 February 2024 and 10 February 2024, and a further meeting scheduled for today as per the letter dated 14 February 2024 (Annexure R‑3), where three Union Ministers—Shri Arjun Munda, Shri Piyush Goyal and Shri Nityanand Rai—are to be present. Kisan leaders Shri Jagjit Singh Dallewal of Sanyukt Kisan March (non‑political) and Shri Sarwan Singh Pandher of Kisan Mazdoor Morcha have been invited to join the meeting at Mahatma Gandhi State Institute of Public Administration, Sector 26, Chandigarh. Details of mobilisation and deployment of force are in Annexure R‑5. Ambulances and tear‑gas squads have been kept ready and arrangements made for deployment of Executive Magistrates. Deployments include 1,760 police officers at Shambhu Border, Patiala; 1,364 police officers at Khanauri Border, District Sangrur; and 1,068 police officers at the Haryana‑Punjab Border in District Bathinda., The present litigation and service upon representatives of the farmers’ bodies have been noted; they have been informed of the petitions and indicated that they would receive summons after internal discussion. They have also been informed through WhatsApp (Annexure R‑13). Paragraph 11 of the affidavit mentions the strength of the gathering on 14 February 2024 at 5.00 PM at Shambhu Border, District Patiala, estimated at 12,000‑13,000 persons, with 1,120 tractors, 1,320 trolleys, 150 cars/SUVs, 15 minibuses, 80 water tanks, 7‑8 canters and 20‑25 bikes. Haryana Police has erected strong barricades at Shambhu Border; protestors attempted to cross but retreated due to tear‑gas shelling. At Khanori Border, District Patiala, around 4,000‑5,000 persons were present with 450‑470 tractors/trolleys, 30‑32 cars/SUVs, 2‑3 water tanks and 8‑10 bikes; similar attempts to cross were repelled by tear‑gas and strong barricades. The situation is tense but under control., Shri Uday Pratap Singh, petitioner in CWP‑PIL‑29‑2024, submits that the use of force upon citizens holding a protest and assembling is excessive. Reference is made to the deployment of long‑range acoustic devices or sound cannons by Delhi Police at Singhu Border. The petitioner has filed a representation to the Secretary‑General of the United Nations, New York, seeking intervention. The Supreme Court of India expressed displeasure at the petitioner's urgent request on 13 February 2024, noting other Court business. Shri Uday Pratap Singh has expressed regret for acting impulsively and undertakes to withdraw the representation, having taken recourse to the procedure prescribed before the Constitutional Court., The sequence of events shows a tense situation that authorities are attempting to manage. Representatives of Kisan Mazdoor Morcha and Sanyukta Kisan Morcha (non‑political) did not appear despite being informed of the litigation; the State of Punjab states that they duly informed the representatives of both farmer unions. Widespread media coverage of the incidents and the litigation is noted, and it is presumed that the unions are aware and will be bound by any orders this Supreme Court of India may pass. Mr. S.S. Swaich, Advocate, present in the Court, is permitted to intervene by filing an appropriate application. In view of the confirmation by Shri Satya Pal Jain, Additional Solicitor General of India, regarding the meeting likely to be held today at 5.00 PM, the proceedings are deferred to 20 February 2024. The matter can be resolved through deliberation involving elected members of the legislature and other officials. A short affidavit may be filed by the concerned respondents regarding subsequent events. The State of Punjab shall make efforts to serve the State of Delhi. A photocopy of this order shall be placed in the connected file. Dated 15 February 2024. Neutral Citation No.: 6.
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This batch of appeals arise from judgments delivered by the High Court of Telangana, the High Court of Gujarat and the High Court of Bombay. The concerned states of Telangana and Gujarat have appealed aggrieved by the judgments. The assessee petitioners are appellants, and are aggrieved by the judgments of the High Court of Bombay., The Constitution (One Hundred and First Amendment) Act, 2016, hereinafter referred to as the Amendment, introduces a fundamental reordering of the constitutional premise of taxation by the Union and State Governments in India. It is the framework to enable the introduction of the Goods and Services Tax. It confers new powers upon the Union Parliament and State Legislative Assemblies, and also creates institutions that have a significant bearing on the federal character of the Constitution., The pre‑Amendment constitutional scheme had a vision of taxation of goods and services supplied within India. Excise and customs duty and excise on manufacture were within the scope of the legislative powers of the Union Parliament, under the Seventh Schedule. No separate entry for Service Tax existed in the Constitution at the time it was enacted. In T.N. Kalyana Mandapam Association v. Union of India, this Court held that service tax as a subject matter was within the residuary power of the Union; nevertheless, Entry 92C was introduced into the Union List by the Constitution (Eighty‑eighth Amendment) Act, 2004 clarifying that the Union had exclusive authority to impose a service tax. Taxation of sale and movement of goods was within the exclusive purview of the States, by Entries 52 and 54 of the State List (List II of the Seventh Schedule). The delineation of Union and State taxation powers through the Union and State Lists of the Seventh Schedule was precise and clear, leaving little room for any overlap. The Concurrent List (List III of the Seventh Schedule) contained no taxing entries, signifying that the constitutional scheme for taxation was to apportion two distinct, exclusive spheres of taxation for the Union and the States., The initial move to introduce the Goods and Services Tax was through the Fiscal Responsibility and Budget Management Report and the first official announcement for a transition to Goods and Services Tax, made by the Government of India in the 2006‑07 Budget Speech of the then Finance Minister; this was reiterated in the 2008‑09 Budget Speech and followed up in 2009‑10 when certain policy changes were announced. The \First Discussion Paper on Goods and Services Tax in India\ released by the Empowered Committee in November 2009 was the first official document publicly delineating the contours of the proposed reform and nuances of the Goods and Services Tax model., The First Discussion Paper explained the rationale for a constitutional amendment to introduce the Goods and Services Tax. It noted that while the Centre is empowered to tax services and goods up to the production stage, the States have the power to tax the sale of goods. The States do not have the power to levy a tax on the supply of services while the Centre does not have the power to levy a tax on the sale. It suggested a constitutional amendment that would contain a mechanism for a harmonious structure of Goods and Services Tax that would not affect the federal fabric., Subsequent deliberations between the Centre and the States, aided by the Empowered Committee, led to the constitutional amendment process to usher in the Goods and Services Tax. It resulted in the Constitution (One Hundred and Fifteenth Amendment) Bill, 2011. After that failed attempt, the 2014 Amendment Bill was adopted and passed on 8 September 2016. The Bill became the Constitution (One Hundred and First Amendment) Act, 2016., The Goods and Services Tax Council was constituted in September 2016. It is a constitutional institution comprising as its members the Finance Ministers of the Union and the States, including Union Territories with members of the legislatures. It has the authority to recommend to the Union and the States on various facets of the Goods and Services Tax, including model Goods and Services Tax laws, principles to determine the place of supply, levy of the tax, design of the Goods and Services Tax, dispute settlement, special provisions for a special category of States, and so forth. The Council's recommendations led Parliament to enact legislation., The coming into force of the Goods and Services Tax regime, and the passage of the Amendment, demonstrates a rare unanimity across the political spectrum to ensure a single indirect taxation regime. The effect of the Amendment is to subsume all State and Union taxes on goods and services. Both the Union and the States will ostensibly have the power to tax the supply of goods and services. The One Hundred and First Amendment Act does not take away either the Union's or the States' taxing power but instead gives them the power to impose taxes on the supply of goods and the supply of services respectively. Through Article 246‑A the Amendment creates a new legislative field, conferring legislative authority outside the three Lists of the Seventh Schedule and concurrent powers to both Parliament and the State Legislatures to enact legislation on the same subject‑matter at the same time., There consequently is a fundamental change to the scheme of legislative relations between the Union and the States by departing from the underlying theory of exclusivity of legislative fields between Parliament and the State legislatures, in terms of the distribution of legislative powers carried out by Chapter I of Part XI of the Constitution. While Article 246‑A changes the legislative distribution of powers, it does not upset the balance between the Union and the States. Instead, it carries out the function of cross‑empowerment. On the one hand, it enables the Union to legislate and collect taxes on certain subjects which were hitherto within the exclusive fold of the States (such as taxes on sale and purchase of goods, luxury taxes, advertisement taxes, etc.), while retaining the legislative rights it hitherto possessed (such as taxes on manufacture and taxes on services), except that these taxes are subsumed in a larger legislative field – the Goods and Services Tax – and would be levied thereunder. On the other hand, Article 246‑A also expands the legislative reach of the States to bring within their fold subjects which were hitherto beyond their competence, such as tax on the supply of services. As in the case of the Union, the States also continue to enact and impose taxes on the legislative fields they hitherto possessed (such as taxes on sale and purchase, taxes on betting and gambling, and taxes on advertisements), albeit as a part of the Goods and Services Tax which subsumes these legislative fields., Article 279‑A provides for the Goods and Services Tax Council (hereinafter \GST Council\). This provision also changes the underlying constitutional philosophy to a certain extent. Sub‑clause (1) of Article 279‑A creates a new constitutional institution; (2) confers upon it the power to make recommendations to the Union and the States; (3) provides that certain functions of other constitutional institutions shall be carried out on the basis of the recommendations of the GST Council; (4) has overarching jurisdiction and carries extensive functions in relation to the design and structure of the Goods and Services Tax; (5) has a substantial role in resolution of disputes amongst the executive governments relating to the Goods and Services Tax, etc. In fact, the GST Council is empowered to recommend model legislation and rates of tax on the supply of goods and services., In terms of Section 2 of the Amendment, after Article 246 a new Article 246‑A was inserted which reads: \246A. Special provision with respect to Goods and Services Tax (1) Notwithstanding anything contained in Articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to Goods and Services Tax imposed by the Union or by such State. (2) Parliament has exclusive power to make laws with respect to Goods and Services Tax where the supply of goods, or of services, or both takes place in the course of inter‑State trade or commerce. Explanation: The provisions of this article, in respect of Goods and Services Tax referred to in clause (5) of Article 279‑A, take effect from the date recommended by the Goods and Services Tax Council.\ By Section 7, Article 268‑A was omitted. After Article 269, Article 269‑A was inserted, which reads: \269A. Levy and collection of Goods and Services Tax in course of inter‑State trade or commerce (1) Goods and Services Tax on supplies in the course of inter‑State trade or commerce shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council. Explanation: For the purposes of this clause, supply of goods, or of services, or both in the course of import into the territory of India shall be deemed to be supply of goods, or of services, or both in the course of inter‑State trade or commerce. (2) The amount apportioned to a State under clause (1) shall not form part of the Consolidated Fund of India. (3) Where an amount collected as tax levied under clause (1) has been used for payment of the tax levied by a State under Article 246A, such amount shall not form part of the Consolidated Fund of India. (4) Where an amount collected as tax levied by a State under Article 246A has been used for payment of the tax levied under clause (1), such amount shall not form part of the Consolidated Fund of the State. (5) Parliament may, by law, formulate the principles for determining the place of supply, and when a supply of goods, or of services, or both takes place in the course of inter‑State trade or commerce.\ Section 12 of the Amendment inserted Article 279‑A, which reads: \279A. Goods and Services Tax Council (1) The President shall, within sixty days from the date of commencement of the Constitution (One Hundred and First Amendment) Act, 2016, by order, constitute a Council to be called the Goods and Services Tax Council. (2) The Goods and Services Tax Council shall consist of the following members, namely: (a) the Union Finance Minister as Chairperson; (b) the Union Minister of State in charge of Revenue or Finance as Member; (c) the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government as Member. (4) The Council shall make recommendations to the Union and the State on (a) the taxes, cesses and surcharges levied by the Union, the States and the local bodies which may be subsumed in the Goods and Services Tax; (b) the goods and services that may be subjected to, or exempted from, the Goods and Services Tax; (c) model Goods and Services Tax laws, principles of levy, apportionment of Goods and Services Tax levied on supplies in the course of inter‑State trade or commerce under Article 269‑A and the principles that govern the place of supply; (d) the threshold limit of turnover below which goods and services may be exempted from Goods and Services Tax; (e) the rates including floor rates with bands of Goods and Services Tax; (f) any special rate or rates for a specified period, to raise additional resources during any natural calamity or disaster; (g) special provision with respect to the States of Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand; and (h) any other matter relating to the Goods and Services Tax, as the Council may decide. (5) The Council shall recommend the date on which the Goods and Services Tax be levied on petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel. (6) While discharging the functions conferred by this article, the Council shall be guided by the need for a harmonised structure of Goods and Services Tax and for the development of a harmonised national market for goods and services. (7) One‑half of the total number of Members of the Council shall constitute the quorum at its meetings. (8) The Council shall determine the procedure in the performance of its functions. (9) Every decision of the Council shall be taken at a meeting, by a majority of not less than three‑fourths of the weighted votes of the members present and voting, in accordance with the following principles, namely: (a) the vote of the Central Government shall have a weightage of one‑third of the total votes cast, and (b) the votes of all the State Governments taken together shall have a weightage of two‑thirds of the total votes cast, in that meeting. (10) No act or proceedings of the Council shall be invalid merely by reason of (a) any vacancy in, or any defect in, the constitution of the Council; or (b) any defect in the appointment of a person as a Member of the Council; or (c) any procedural irregularity of the Council not affecting the merits of the case. (11) The Council shall establish a mechanism to adjudicate any dispute (a) between the Government of India and one or more States; (b) between the Government of India and any State or States on one side and one or more other States on the other side; or (c) between two or more States, arising out of the recommendations of the Council or implementation thereof.\, Section 19 of the Amendment reads: \Notwithstanding anything in this Act, any provision of any law relating to tax on goods or services or on both in force in any State immediately before the commencement of this Act, which is inconsistent with the provisions of the Constitution as amended by this Act shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until expiration of one year from such commencement, whichever is earlier.\ Section 20 reads: \(1) If any difficulty arises in giving effect to the provisions of the Constitution as amended by this Act (including any difficulty in relation to the transition from the provisions of the Constitution as they stood immediately before the date of assent of the President to this Act to the provisions of the Constitution as amended by this Act), the President may, by order, make such provisions, including any adaptation or modification of any provision of the Constitution as amended by this Act or law, as appear to the President to be necessary or expedient for the purpose of removing the difficulty, provided that no such order shall be made after the expiry of three years from the date of such assent. (2) Every order made under sub‑section (1) shall, as soon as may be after it is made, be laid before each House of Parliament.\, There are three batches of appeals, arising from separate Special Leave Petitions (Civil) filed in this case. One batch relates to the State of Telangana. The facts in relation to that State are that the local Value Added Tax Act was amended after the Amendment was introduced. The Value Added Tax amendment was through an Ordinance, and was brought into force on 17 June 2017, i.e. thirteen days before the time granted by the One Hundred and First Amendment Act, i.e. one year. The Amendment came into force on 16 September 2016. The Ordinance sought to extend the period of limitation and permitted the reopening of assessments. This Ordinance continued till the State Legislature enacted it. The Governor then assented to the law, and it came into force on 2 December 2017. Feeling aggrieved, many traders and Value Added Tax payers approached the High Court of Telangana, challenging the amendments to the local Value Added Tax Act. By the impugned judgment, the High Court accepted the challenge and struck it down on various counts, including that the State had limited scope to amend its Value Added Tax Act, which in terms of Section 19 of the Amendment could have been done only to bring it in conformity with the amended Constitution. Other reasons included that the Ordinance could not have been confirmed, as the State was denuded of legislative competence after 1 July 2017., In the batch of appeals arising from the judgment of the High Court of Bombay, the parties were aggrieved by the fact that the Maharashtra Value Added Tax Amendment Act, which was initially made on 15 April 2017, was read down by a Division Bench judgment of the High Court of Bombay. That position was sought to be reversed through an amendment which was brought into force on 15 April 2017 and later, in an effort to reverse the effect of a judgment, given retrospective effect. The writ petitions filed by such aggrieved parties were dismissed. Consequently, they are in appeal., In the Gujarat batch of cases, Section 84A was introduced in the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the Gujarat Value Added Tax Act) by the Gujarat Value Added Tax (Amendment) Act, 2018, gazetted on 6 April 2018 but with retrospective effect from 1 April 2006. It inter‑alia provided that if, for a particular issue in some other proceedings, a lower forum gave a decision which is prejudicial to the interest of the revenue and an appeal against such decision is pending before a higher forum, then the period spent in such litigation will be excluded while computing the period of limitation for revision. By giving such provision retrospective effect the State legislature sought to enable reopening of assessments which had already attained finality. The High Court of Gujarat struck down the amendment on the ground of lack of legislative competence of the legislature after 1 July 2017, and also that it was manifestly arbitrary., It was argued on behalf of the State of Telangana by Mr. Arvind Datar, Senior Advocate, and by Mr. Balbir Singh, learned Additional Solicitor General, on behalf of Maharashtra, that the constitutional amendment was introduced on 16 September 2016. It was highlighted that by its provisions various entries in the State and Union lists were amended drastically to limit the powers of the two legislatures. The object of the amendment was to reorganize the powers of indirect taxation that the original Constitution makers had envisaged. Indirect taxes – more specifically, sales tax, service tax, central excise and Value Added Tax – were the subject matter of this amendment. The original intent of the Constitution and powers in relation to levy of customs duty were retained as they were. For the first time, the amendments denuded the States and Parliament of exclusive fields of legislation and introduced the concept of shared or pooled sovereign powers in relation to Value Added Tax, central excise and service tax. These were brought into one compendious term Goods and Services Tax, ensuring that all aspects in this field of taxation were covered. For the first time, the power of taxation could be traced to a substantive provision of the Constitution, introduced by the amendment. Furthermore, the issue of evolving principles of division of the pooled field of taxation was left to a new entity, the Goods and Services Tax Council, created as a constitutional entity. This design was to ensure that the federal balance of power was retained and in fact furthered., Learned counsel relied upon the provisions of the amendment to emphasize that the Goods and Services Tax Council is comprised of the Finance Ministers of all States and that the Union has only one‑third weightage in its decision making. The balance is with the States collectively. Furthermore, any decision in the Council becomes effective when it is voted for by a three‑fourths majority., It was contended that the revolutionary change brought about by redistribution of indirect taxation power and giving effect to it through the amendment meant that both Parliamentary and State legislative powers were denuded in respect of fields of taxation as far as they covered central excise, service tax, sales tax and other taxes which the States could hitherto levy and collect. As an effect of the amendment, the fields of taxation in Entry 84 of the Union List (List I) of the Seventh Schedule to the Constitution of India and Entries 54 and 62 of the State List were amended. The revamping of these fields of taxation resulted in such powers getting pooled as a sovereign taxation power, shared by the State and the Centre. This became the subject matter of a separate entry, i.e. Article 246‑A. Article 246‑A is expressed in overriding terms and begins with a non‑obstante clause and overrides Article 246 which deals with the distribution of legislative powers vis‑à‑vis the Union and the States in terms of Lists I and II, and of Article 254 which deals with the subject matter of the Concurrent List, i.e. List III, and the resolution of any conflict (in terms of repugnancy) between laws enacted by the States and Parliament., The effect of Article 246‑A is that both Parliament and the State legislatures have the power to enact laws with respect to Goods and Services Tax imposed by the Union or by such State. Article 246‑A(2) states that Parliament has the overriding power to enact laws with respect to Goods and Services Tax where the supply of goods, or of services, or both takes place in the course of inter‑State trade and commerce. Another substantial provision is Article 269‑A which authorises the Union to collect Goods and Services Tax on supplies in the course of inter‑State trade or commerce, which shall be apportioned between the Union and the States in the manner as may be provided by Parliament on the recommendations of the Goods and Services Tax Council. The other provisions of Article 269‑A clarify that the collections are not to form part of the Consolidated Fund of India. Article 279‑A provides for the Goods and Services Tax Council and elaborately deals with its structure to ensure balanced decision making, democratic participation of the Union and the States, and a substantial role in dispute resolution., It was also submitted that consequent to these amendments, Article 366(12‑A) was introduced, which defined Goods and Services Tax as tax on supply of goods and services or both, excluding alcoholic liquor for human consumption. It was urged on behalf of the States that with the coming into force of the amendment, Parliament and the States realized that any changes in the law or the practical application of the existing law would become impossible. As a consequence, to cater to these eventualities, certain constitutional provisions were made, i.e. Section 19 which provided firstly that laws relating to tax on goods or services or both in force in any State immediately before the commencement of the amendment Act shall continue to be in force until amended or repealed by a competent legislature or other competent authority, and secondly that such laws were to be in force only for a period of one year from the commencement of the amendment. Section 20 authorised the President to, by order, make provisions, including modification and adoption of any provision of the Constitution as amended by the amendment Act in case of any defect, including defect in relation to transition from the provisions of the State as they stood immediately before the commencement of the amendment Act, for a period of three years., In view of Section 19 of the amendment, the Telangana legislature amended the existing State statute Value Added Tax Act (hereinafter the Telangana Value Added Tax Act). The amended provisions empowered the Assessing Officer to reassess the returns which had been assessed previously for an additional period of two years. Originally the power to reassess was limited to four years; the lengthening of the period by two more years meant that dealers whose assessments had either escaped notice or who had mis‑declared or withheld information could now be exposed to the possibility of reassessment for a further period of two years., It was submitted that this amendment was made through an Ordinance issued by the Governor of Telangana on 17 June 2017. The State Value Added Tax Act was to cease to have any effect on 30 June 2017. However, before that date, its provisions were amended through the Ordinance which was later transformed into law through an Act of the State legislature and brought into force on 2 December 2017. The Telangana Goods and Services Tax Act was enacted and came into force before 30 June 2017. It repealed the existing law, i.e. the State Value Added Tax Act, but by virtue of Section 174, the existing provisions of the State Value Added Tax Act were continued and all pending proceedings so far as they related to ongoing assessment proceedings and matters which had not become final., The learned counsel submitted that the impugned judgments of the High Court of Telangana and the High Court of Gujarat are erroneous. It was submitted that the High Court of Telangana's interpretation that the expression \amend\ has limited import is without basis.
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Learned counsel highlighted that the ordinance, in terms of the several judgments of the Supreme Court of India, especially A.K. Roy v. Union of India (hereafter, AK Roy) and the seven‑judge decision in Krishna Kumar Singh v. State of Bihar (hereafter, Krishna Kumar Singh), have declared that there is no difference between the effect of an ordinance and that of a law enacted by the State legislature. Being in the nature of a special power to cater to unforeseen eventualities, the executive was empowered to enact laws for a limited duration as far as the conditions spelt out in Article 213. The Union executive, in a like manner, was authorized by Article 123 to promulgate ordinances., Learned counsel also relied upon the decision of the Supreme Court of India in Ramkrishna Ramanath v. Janpad Sabha (hereafter, Rama Krishna Ramanath) and relied upon the principle that so long as the power to amend existed, both the Parliament and the State legislatures could not be limited in the exercise of that power which was plenary and sovereign. The interpretation placed by the Telangana High Court and the Gujarat High Court that the expression 'amend' only conferred a constricted power to bring the existing enactments in line with the amendments of the Constitution was erroneous. In fact, it amounted to unduly restricting without any warning the purport and amplitude of the saving and Presidential power expressed through Section 19., Learned counsel submitted that if one takes into account the fact that the effect of an ordinance and the effect of a law are identical, which is that they bind the subject matter to the extent they provide for it, the difference lies only in the manner of their creation. The counsel emphasized that the distinction lies in the procedure adopted rather than the content or the effect of the law. Whereas the origin of an ordinance is through a different entity, the executive clothed with limited legislative power, an Act is an expression of a State legislature or Parliament. This distinction cannot obliterate the effect of the law, which is the same and would continue to bind the parties for which express provision is made., In support of the proposition that there is no difference between the legislative power of the State and that of the executive, learned counsel relied upon the decision of the Constitution Bench of the Supreme Court of India in R.K. Garg v. Union of India. It was further argued that the provision requiring placing or tabling the ordinance before the house, either the State legislature or Parliament, is entirely different from the exercise of tabling an enacted legislation. The former amounted to a part of the legislative activity itself. If the legislature, i.e., the State legislature or Parliament, approves the ordinance in its own terms, it becomes a parliamentary or State enactment. Counsel stressed that a separate embodiment of the terms of the ordinance is not essentially a requirement under the Constitution. A mere approval of the ordinance results in its enactment and acceptance by the State legislature, which in turn assimilates the terms of the ordinance through the body of law enacted by it., In other words, if the State legislature or Parliament disapproves the ordinance or does not approve any part of it and embodies the ordinance in the form of an enactment, that enactment would be decisive from the date the ordinance itself was brought into force. However, in the case of disapproval, the limited life of the ordinance would cease. It was thus argued that upon the State legislature approving the terms of the ordinance in Telangana and embodying it in terms of the second amendment which was brought into force on 02 December 2017, its terms related back. Therefore, the State power to legislate has to be viewed in continuum from the date it was brought into force, which is 17 June 2017, and formed from the State enactment. Consequently, even the power to enact the law on the part of the State was preserved., Learned counsel also relied upon the decision of the Supreme Court of India in Fuerst Day Lawson Ltd v. Jindal Exports Ltd in support of the submission. In the case of Maharashtra Value Added Tax Act, it was highlighted that the amendment Act was brought into force on 15 April 2017. The Central Goods and Services Tax Act (hereafter CGST Act) came into force on 01 July 2017. In terms of the amendment to the State Value Added Tax Act, the pre‑deposit of 10 % became the condition for hearing the appeal., It was argued on behalf of the State of Maharashtra that what is material is the existence of a power to legislate and not the manner of exercise of that power. Therefore, the existence of a power to legislate was preserved by Section 19; its purpose was to preserve both the portion of existing laws and also to permit the State legislature and Parliament to amend or repeal the existing law. Being a constitutional amendment, no expression or term ought to be interpreted in a limited manner. The reasoning of the Telangana and Gujarat High Courts that the power of amendment was limited to bringing the existing enactments, i.e., State Value Added Tax Acts, in conformity with the express terms of the 101st amendment was erroneous. It was submitted that till the date specified in the 101st amendment, i.e., the expiration of one year which was effectively 30 June 2017, the power of the competent legislatures, i.e., the State and the Union, was untrammeled., Learned counsel also pointed to amendments made to the Central Excise Act, much in the same terms as in the case of the Telangana and Gujarat amendments, which enlarged the period of limitation in certain respects. It is fallacious to contend that the State legislatures were denuded of the power to legislate. The power was traceable to the amended provisions of the Constitution notwithstanding that relevant entries in the State List entries 54 and 62 had been altered. It was submitted that such a view was taken notice of and discussed in Union of India and Another v. Mohit Minerals Private Limited., It is urged that the power to amend the Constitution is a constituent power of the Parliament in accordance with Article 368. Under Article 368(2), the amendment to the Constitution is initiated by introduction of a bill and after assent to the bill by the President, the Constitution stands amended in accordance with the terms of the Bill. In other words, every single provision in the Constitutional Amendment Bill becomes a part of the amended Constitution., It is further submitted that absence of specifically inserting Section 19 in the Constitution makes no difference. It is still a part of the Constitution as amended. The reference in this regard is made to the Seventh Constitutional Amendment which conferred power upon the President to frame regulations for administering Part D States. After the said amendment, the regulations were continued for a limited period. The constitutional amendment completely became part of the Constitution. This Supreme Court of India decision in the matter of A.K. Roy (supra) has considered the issue., It was urged, on behalf of the Maharashtra State, that the amendment to Section 26 of the Maharashtra Value Added Tax Act, 2002 (hereafter MVAT Act) requiring a pre‑deposit is not inconsistent with the amendment. It is procedural in nature and no vested right of the assessee was taken away. It is also not in dispute that the same is in respect of past levies prior to the introduction of Goods and Services Tax with effect from 1 July 2017 and therefore, even otherwise are saved by Section 174 of the Maharashtra GST Act., It is submitted that the plain language of Section 26(6A) and 26(6B) of the MVAT Act clarifies that it applies in all cases where the order is passed after 15 April 2017 and an appeal is preferred. That provision only requires a pre‑deposit of 10 % and takes away the discretion of the Appellate Authority/Tribunal. It does not take away the statutory right of appeal and only regulates the same by removing the discretion of the Tribunal. The condition of pre‑deposit is also not an onerous condition to make it arbitrary. The only question, therefore, is whether there is any vested right of filing an appeal without a pre‑deposit. The plain language of the amendment has taken away the discretion of the Appellate Authority and not the right of appeal in case where the order is passed by the original authority after 15 April 2017. The State relies on the decisions that the right to appeal remains unaltered, only its conditions are controlled, or regulated, with pre‑deposit requirements, at the appellate stage, i.e., Anant Mills Company Limited v. State of Maharashtra; Vijay Prakash D. Mehta v. Collector of Customs (Preventive), Bombay; State of Haryana v. Maruti Udyog Limited & Others; Thirumalai Chemicals Limited v. Union of India; Neena Aneja & Another v. Jai Prakash Associated Limited., The State of Gujarat urges that the High Court fell into error in not recognizing that in somewhat similar situations, this Supreme Court of India in A. Hajee Abdul Shakoor & Co v. State of Madras (hereafter, Hajee Abdul Shukoor) recognized the power of states to even retrospectively validate assessments under the Act of 1939 even though the earlier Act had failed for want of Presidential assent. It was also pointed out that this Supreme Court of India in M/s West Ramnad Electric Distribution Co. Ltd. v. State of Madras validated the power of states to retrospectively validate actions taken under notifications of enactments which had been declared unconstitutional and non‑est. Reliance is also placed on this Supreme Court of India decision in State of Rajasthan v. Mangilal Pindwal which upheld the power of the legislature to amend repealed provisions for a period when these provisions were in operation till the date of repeal. The repealing of Section 166 of the Gujarat GST Act clearly shows that the Value Added Tax Act has not been repealed at all and hence, the consequences of repeal cannot follow., It is submitted that Section 84A is neither arbitrary nor unreasonable but aims at equity and restitution by allowing the tax authorities to collect the tax from those dealers who have passed on the burden of tax on the ultimate consumer but not paid it into the government treasury, thus avoiding unjust enrichment of money as held by a special larger Constitution bench in Mafatlal Industries Ltd. v. Union of India (hereafter, Mafatlal Industries). It is urged that restitution and prevention of unjust enrichment is a principle of equity applicable irrespective of any statutory provisions. Further, it is argued that Section 84A does not impose a new tax or liability, but merely facilitates the collection of tax whose burden was passed on to the ultimate consumer and that collected tax, being public money, its incidence and burden is always presumed in indirect taxes; it would be inequitable and improper to allow some dealers to retain the benefit of tax which has been passed on., It was next urged that Section 84A is a validating Act which increases the time limit thereby enabling the collection of public funds in the hands of the dealers of tax. The revision notices were sent after the judgment delivered by this Supreme Court of India in the State of Gujarat v. Reliance Industries Ltd. Counsel submitted that the time limit prescribed under Section 84A is not too long if Articles 61(b), 62, 63(b), 64, 65, 66, 67, 92, 94, 96, 106, 107, 108, 109, 110 and 136 of the Limitation Act, 1963 are viewed, which provide for time limits of 12 or even 30 years from the occurrence of any event which may also take many years to occur., IV. Arguments of the respondent‑assessee. It was argued on behalf of the assessee‑respondents by Mr. Kapil Sibal, Mr. S. Ganesh, Mr. Nankani and Mr. Soparkar, learned Senior Counsel and Mr. Sujit Ghosh, Advocate (hereafter the assessee) that continuance of inconsistent existing law is solely for the purposes of making them consistent (through amendments) with the amended architecture of the Constitution. It was submitted that to elucidate the ambit of powers under Section 19 of the Amendment, an inference can be drawn from Article 243ZF of the Constitution, which has been couched in a manner identical to Section 19. However, there are two distinctive features between them: first, unlike Section 19, Article 243ZF was incorporated into the body of the Constitution; second, while Article 243ZF has a non‑obstante clause seeking to override all Articles contained in Part IX‑A of the Constitution, Section 19 of the Constitution Amendment Act, 2017 (CAA) only overrides the provision of the Amendment and not the Constitution of India. In other words, ex facie Article 243ZF of the Constitution can be said to be at a pedestal higher than that of the CAA., It is argued that this Supreme Court of India had interpreted Article 243ZF in Sundergarh Zilla Adivasi Advocates Association and Others v. State of Odisha and Others (hereafter, Sundergarh Zilla), wherein the Court held: 'Clearly, the purpose of continuing an existing law (even though it may be inconsistent with Part IX‑A) was to enable necessary amendments to be made to the existing law to make it in consonance with Part IX‑A.', It is submitted that considering that the language of Article 243ZF of the Constitution and Section 19 are near pari materia, placing reliance on Sundergarh Zilla, it is clear that the amending power under Section 19 is limited to making the existing inconsistent legislations consistent with the Amendment. In other words, the purpose is to cure the inconsistencies and iron out the creases. Further, unlike Article 243ZF which is part of the Constitution and also overrides Part IX‑A, Section 19 is not part of the Constitution and does not override any provision of the Constitution; therefore, the power to amend under Section 19 of the CAA would be even narrower as compared to the power to amend available under Article 243ZF as interpreted in Sundergarh Zilla., Counsel urged that a similar transitional provision was introduced in the form of Section 143(2) of the Government of India Act, 1935, with the introduction of Part III introducing the concept of provisional legislation in Rama Krishna Ramanath (supra)., It is submitted that even where express power to continue the levy was granted through incorporation into the Government of India Act, 1935, the Constitution Bench of the Supreme Court of India proceeded to hold that even in such cases, the power of the Provincial Legislature is extremely limited and certainly cannot be used to alter the incidence. In the present case, such powers to continue the levy are wholly absent and accordingly powers under Section 19 of the CAA would be construed in an extremely narrow framework, i.e., limited to bring the legislation in consonance with the Constitution., It was submitted that the term 'amend' ought not to be interpreted textually; instead contextual interpretation ought to be adopted. By applying contextual interpretation, it would appear that Section 19 of the Amendment Act is couched in a manner which contemplates ultimate repeal and obliteration from the statute books. This suggests that the legislature contemplated a diminishing life of the legislation concerned and the State could not have used the power to amend to breathe any more life into the statute concerned. Further, the usage of the word 'inconsistent' followed later with the words 'until amended' clearly suggests that the intention was to let the inconsistent provisions survive for a limited time, until they are amended to make them consistent. Had the intention been to confer plenary power to amend, then Section 19 would have been couched in a manner that it provided for 'subject to amendment', which would have then suggested that the existing inconsistent law 'as is' or 'as amended' could continue to be in force until the lapse of one year or its repeal, whichever was earlier. However, such is not the case for the nonce., Further, by applying purposive construction, Section 19 of the CAA admits to the exercise of 'curative legislative action'. This is so because with the advent of Goods and Services Tax, as per Article 279‑A(6) of the Constitution, the need for a harmonized structure of Goods and Services Tax and for the development of a harmonized national market for goods and services was specifically provided within the Constitution. This harmony has been interpreted by the Supreme Court of India in Union of India v. VKC Footsteps India (P) Ltd to mean legislative harmony between the State and the Centre with a view to achieve cooperative federalism. Therefore, this avowed purpose of harmony between the Centre and the State or inter se between the States cannot be achieved if, using the power of amendment under Section 19 of the Amendment, a given State enlarges the operation and sweep of an existing tax law even after the introduction of Goods and Services Tax., It is argued that to interpret Section 19 as conferring legislative power which is non‑curative and breathing more life into it than what existed earlier would be in the teeth of constitutional morality and contrary to the principle of the Pure Theory of Law propounded by Kelsen. This is so because plenary legislation stands at a pedestal lower than the Constitution of India and can never clash with the Grundnorm. Accordingly, whatever legislative power may be couched in Section 19 of the Amendment will have to be subservient to Articles 245 and 246 of the Constitution. If under the latter two Articles there is no power available with the State to legislate on a subject which has been deleted or truncated from List II of the Seventh Schedule, then Section 19 of the Amendment cannot be pressed into service to override such a constitutional restriction., Counsel urges that the entire Amendment was enacted by following the procedure under Article 368 of the Constitution. While that Article confers constituent power to the Parliament to amend the Constitution, stricto sensu the enactment of Section 19 of the Amendment not being made a part of the Constitution may be viewed as not having been enacted in exercise of powers under Article 368. However, considering that along with the remaining provisions of the Amendment, Section 19 of the Amendment also went through the entire drill prescribed under the Amendment, a possible view emerges that Section 19 of the Amendment is perhaps an adjunct to exercise the powers under Article 368 of the Constitution which have been enacted using the incidental and ancillary powers available to the Legislature. It is well known and well settled that incidental and ancillary powers are exercised in aid of the main legislation (reliance is placed on the decision of this Supreme Court of India in R. Abdul Quader v. Sales Tax Officer). Therefore, to interpret the word 'amend' in Section 19 of the Amendment to mean conferment of a parallel power wider than making curative legislation, which runs contrary to the revised constitutional architecture of simultaneous levy through the introduction of Goods and Services Tax, cannot be said to be in aid of the main subject of the Amendment., It is alternatively argued that, assuming arguendo, Section 19 has been legislated by the Parliament in exercise of power under Entry 97 of List I of the Seventh Schedule (being a residuary entry for matters not enumerated in List II or List III, including any tax not mentioned in List II or III), even then such power can only be exercised by the Parliament and cannot be transferred to the State Legislatures thereby enabling them to amend the plenary legislations. Neither Article 258 nor Article 258A of the Constitution admits any transfer of legislative power by the Parliament to the State Legislatures. It cannot, therefore, be said that Parliament entrusted the legislative functions to the State Legislature., Counsel argued that the amendment to the Value Added Tax legislation cannot also find its source of power in Article 246A. This is for two reasons: firstly, under Article 246A, there must be a simultaneous levy by the State as well as by the Centre, the scope of which does not arise in the present case; secondly, Article 246A contemplates the power to legislate on Goods and Services Tax, which is a defined term, entirely different and also wider than a tax on sales. Goods and Services Tax cannot be equated with tax on sales by any stretch., It is argued that Section 19 contemplates that 'any provision of any law relating to tax on goods or services or both in force in any State immediately before the commencement of this Act' shall continue to be in force until amended or repealed or until the expiration of one year, whichever is earlier. Hence, the edifice of Section 19 is based on the law being in force before the commencement of the Amendment i.e., on 15 September 2016., In one of the cases, pursuant to the order dated 31 December 2007 of the Andhra Pradesh High Court in Sree Rayalaseema Alkalies and Allied Chemicals Limited v. State of Andhra Pradesh and Others, the levy of entry tax under Andhra Pradesh Tax on Entry of Goods into Local Areas Act of 2001 was declared unconstitutional. The said decision of the Andhra Pradesh High Court was set aside by this Supreme Court of India on 29 March 2017 by order dated 29 March 2017, which is much after the Amendment which came into effect on 16 September 2016. In the meanwhile, the Andhra Pradesh Tax on Entry of Goods into Local Areas Act, 2001 which was declared unconstitutional, was also adopted by the State of Telangana vide G.O.M No.45 dated 01 June 2016., It is submitted that where the law was declared unconstitutional and thereby obliterated from the statute book, such law cannot be treated as a law in force as contemplated under the Amendment. Accordingly, where the Andhra Pradesh Tax on Entry of Goods into Local Areas Act of 2001 was not in force on the date immediately before the commencement of the Amendment, such legislation in any case cannot continue to be in force in the manner contemplated under the Amendment., It is further submitted that even the adoption of the Andhra Pradesh Tax on Entry of Goods into Local Areas Act, 2001 by the State of Telangana was also unconstitutional in as much as the Act was already declared unconstitutional as on 31 December 2007. Accordingly, being a dead law, the same could not have been adopted by the State of Telangana on 01 June 2016. Further, the subsequent decision of this Supreme Court of India which set aside the order of the Hon'ble Andhra Pradesh High Court cannot breathe life and validate the adoption, as it was well settled that the validity of a statute is to be tested at the time of enactment by the legislature. An after‑acquired power cannot ex proprio vigore validate a statute void when enacted., Section 6 of the Telangana Tax on Entry of Goods into Local Areas Act, 2001 incorporates the provisions of the Telangana Value Added Tax Act in relation to assessment, returns etc. Accordingly, the present is a case of legislation by incorporation. On this basis, it is submitted that the amendments in the Telangana Value Added Tax Act will have no impact and bearing on the Telangana Tax on Entry of Goods into Local Areas Act, 2001 and as such the extension in the period of limitation from four to six years would not be applicable to the assessment made in respect of entry tax. This is based on a well‑settled principle of law as laid down by this Supreme Court of India in the case of State of Madhya Pradesh v. M.V. Narasimhan (hereafter, M.V. Narasimhan), which held that where a subsequent enactment incorporates the provisions of a previous act, then the borrowed provisions become an integral and independent part of the subsequent act and are totally unaffected by any repeal or amendment in the previous act. The exception to this principle is: (i) where the subsequent Act and previous Act are supplemental to each other; (ii) where the two Acts are pari materia; (iii) where the amendment in the previous Act, if not imported into the subsequent Act, would render the subsequent Act wholly unworkable and ineffectual; (iv) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act., In the present case, since none of the exceptions laid down by this Supreme Court of India in M.V. Narasimhan (supra) stand satisfied, the amendment in the Telangana Value Added Tax Act would not be applicable to the Telangana Tax on Entry of Goods into Local Areas Act, 2001 and as such the entire demand is in any case barred by limitation., The intention behind Section 19 was to stipulate a timeframe for subsuming erstwhile indirect taxes and for States to amend or repeal to pave the way for imposition of State Goods and Services Tax. It was not for permitting States to freely amend their legislation till Goods and Services Tax laws were enforced. Post 16 September 2016 the States had no competence to freely legislate on goods other than those mentioned in Entry 54 of List II of the Constitution as amended by the 101st Constitutional Amendment Act. Section 19 was intended only to allow the States to bring their laws into compliance with the Constitution as amended by the 101st Constitutional Amendment Act. Section 19 is pari materia with Article 243ZT. In Vipulbhai M Chaudhary v. Gujarat Milk Marketing Federation Ltd (hereafter, Vipulbhai), it was observed, in the context of Article 243ZT, which required laws relating to cooperative societies in force in States prior to the Amendment Act to be in tune with the constitutional concept and set up of cooperative societies and provided a period of one year, that the Constitution enables the competent legislature or authority to suitably amend the existing provisions in their laws in tune with the constitutional mandate., The Telangana Amendment Act, to the extent it seeks to legislate on the basis of erstwhile Entry 54 of List II of the Seventh Schedule, is bereft of legislative competence. Section 19 contemplates amendment by a 'competent legislature'. Post amendment the competence has to be determined with reference to post‑amendment provisions. It is submitted that States had legislative competence only as an incidental power to amend or repeal the provisions dealing with State indirect taxes so as to bring them in line with the amended Constitution. An example of a valid amendment would have been to amend the definition of 'goods' in the Telangana Value Added Tax Act. The same was however achieved by Section 174(1)(i) of the Telangana Goods and Services Tax Act, 2017 (TGST Act) by confining the repeal of the Telangana Value Added Tax Act to all goods except those covered by Entry 54 of List II of the Seventh Schedule. Section 19 of the 101st Amendment is pari materia with Clause 20 of the Constitution (122nd Amendment) Bill, 2014. The said Bill was considered by the Select Committee of Rajya Sabha in its report dated 22 July 2015., The assessee‑respondents also argue that the extension of limitation is done so with a view to secure revenue of the State by enlarging the duration. It is submitted that this argument is not tenable and cannot be sustained. The further argument that provisions of limitation on assessments etc., are only procedural and aspects of levy and assessment are not substantial, is also untenable., It was argued that the Telangana Ordinance was issued with effect from 17 June 2017. However, Section 7 of the Telangana Amendment Act clearly repealed the Ordinance without any savings clause. Further, under Section 1(2) the Telangana Amendment Act was deemed to retrospectively come into effect from 17 June 2017. Thus, the Telangana Amendment clearly intended to obliterate the Ordinance altogether and not merely continue the law. All submissions to the effect that the issuance of the Ordinance and its incorporation into an enactment constitute a single law making power being exercised akin to a principal ratifying an agent's actions are belied by the very provisions of the State Amendment., Thus, the lack of legislative competence is immediate. That is not the subject matter of Section 19. Instead, what is kept in suspension under Section 19 is the effect of such incompetence on enactments that had already been passed prior to the Amendment, i.e., enactments in force.
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Section 19 is pari materia to Article 243 ZF and must be given the above interpretation in accordance with Bondu Ramaswamy v. Bangalore Development Authority (hereafter, \Bondu Ramaswamy\). Further, the words \shall come into force\ in Section 1(2) will have no meaning if Section 19 is interpreted to mean that the operation of the Amendment itself is to be stayed for a period of one year., Counsel stated that a transitional provision cannot be used for oblique purposes. The scope of a power to 'amend' a statute is co‑terminus with the scope of legislative competence and cannot travel beyond such competence as on the date of such amendment. With effect from 16.09.2016, and therefore, as on 17.06.2017, the competence of the State Legislature to make law with respect to Article 246(3) read with unamended Entry 54 did not exist. The word 'amend' in Section 9 therefore cannot be read to be wider than the competence of the State Legislature on 17.06.2017. Instead, the word 'amend' is limited to the power to make law only with respect to the new contours of Entry 54. The term 'until' indicates that the lifetime of an inconsistent law is immediately decided by Section 19. An inconsistent law continues to be in force until: a) the State Legislature amends the inconsistent law to bring it in conformity with the Constitution as amended by the 101st Amendment; b) the State Legislature repeals the inconsistent law; or c) the period of one year from the commencement of the Act expires, i.e., 15.09.2017., The purpose of using the word 'amend' is to allow the State Legislature to bring existing laws in conformity with the 101st Constitution Amendment so that they can continue to operate. If the legislature chooses to take such a route, the inconsistent provisions of the Act cease to exist upon amendment. In the language of Section 19 – until it was amended. Therefore, the State Legislature did not possess any legislative competence with respect to goods other than those included in the new and limited Entry 54 either on the date of the Ordinance, i.e., 17.06.2017, or on the date of the Amendment Act, i.e., 02.12.2017., The Telangana Value Added Tax Act 2005 was effectively repealed from 01.07.2017 by Section 174(1)(i) of the Telangana GST Act 2017 except in respect of goods included in Entry 54 of List II. Section 174(1) operates as an express acknowledgment and acceptance of the 101st Amendment. Therefore, the Telangana Value Added Tax Amendment of 02.12.2017 applicable to all goods cannot be made after such repeal., Article 246A embodies the principle of simultaneous levy by both Parliament and the State Legislature and is distinct from the principle of concurrence. Article 246A creates both the power and the subject matter of legislation. This makes it distinct from a concurrent power of legislation under Article 246(2) which requires one to travel to List III, Schedule VII to find the subject matters with respect to which the power may be exercised. When concurrence as a principle already exists in such a manner, the decision of the Parliament to house both the power and the subject matter in a single article of the Constitution, i.e., Article 246A, leads to the conclusion that such power is to be exercised simultaneously by the Parliament and the State and cannot be exercised independently as they do under the provisions of Article 246(3)., Therefore, the State Legislature can only exercise its taxing powers with respect to goods and services either under Article 246A, which is to be exercised along with the Parliament, or under Article 246(3) read with amended Entry 54 only with respect to the six items mentioned therein., It is argued on behalf of the assessors of Maharashtra that the High Court of India proceeded erroneously to uphold the State's power to legislate with respect to its extant sales tax laws, in this case, the Maharashtra Value Added Tax Act, 2002. The High Court of India failed to appreciate that Article 246A has no relation whatsoever to the earlier sales tax laws as it specifically deals with Goods and Services Tax, which was specifically defined under the Constitution to mean a tax on the supply of goods and services. Applying the pith and substance test, the phrase goods and services tax referred to in Article 246A is totally different and distinct from the earlier tax levied on the sale of goods by the State Legislature., Further, it is submitted that GST is a tax on supply. Supply is the new taxable event, as opposed to the taxable events existing prior to the 101st Constitution Amendment Act. The mere fact that the word supply has been defined under the GST Acts to cover the manufacture, service and sale, for the purpose of levy and assessment of GST, does not mean that the legislative competence of the State Legislature should also be construed widely relying on the definitions meant for the purposes of the GST Acts and not the Constitution of India., Further, the High Court of India failed to appreciate that Article 367 of the Constitution of India incorporates the provision of the General Clauses Act, 1897 and makes them applicable to the Constitution. It is in this context that the effect of the General Clauses Act needs to be examined at two levels: one with reference to the 101st Constitutional Amendment Act, 2016 and the other with reference to amendment to the Maharashtra Value Added Tax Act. As regards the 101st Constitutional Amendment, the power under the old Article 246 has been abridged by simultaneously amending the fields of legislation in Entry 54 of List II. In this case, there is no question of any power to legislate in respect of the rest of the goods, other than the six presently covered by Entry 54, which survives post‑amendment, even by applying the provisions of the General Clauses Act, 1897., It is submitted that Section 19 of the Constitution Amendment Act does not confer unabridged or wide powers on the state legislatures or Parliament to make any and every amendment in the laws existing in force at the time of enacting the Amendment Act. The power referred to in Section 19 is a limited power granted to the State Legislature for a limited period to make such amendments as may be necessary to remove inconsistencies, if any, and bring the existing laws in consonance with the GST legislations. Accordingly, it is submitted that only the power to enact the aligning act enacted in Maharashtra to align its existing laws with the GST provisions will be saved in terms of Section 19. Consequently, the State of Maharashtra lacked the power to make the impugned amendments which were enacted not for removing any inconsistency but as a regular amendment under the Maharashtra Act., Counsel appearing in the Gujarat batch of appeals argued that the impugned Section 84A was introduced in the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the Gujarat Value Added Tax Act) by the Gujarat Value Added Tax (Amendment) Act, 2018 gazetted on 06.04.2018 but with retrospective effect from 01.04.2006 whereby it is inter‑alia provided that if for a particular issue in some other proceedings a lower forum has given a decision which is prejudicial to the interest of revenue and appeal against such decision is pending before a higher forum then the period spent in such litigation will be excluded while computing period of limitation for revision. By giving such provision retrospective effect the State legislature thus sought to enable reopening of assessments which had already attained finality before such amendment was brought into force., Section 19 cannot be applied to save the impugned Section 84A of the Gujarat Value Added Tax Act since Section 19 of the Constitution Amendment Act had a limited shelf life for one year from 16.09.2016 or till the date of implementation of the GST regime, i.e., 01.07.2017, whichever is earlier, and the impugned Section 84A of the Gujarat Act was enacted on 06.04.2018, i.e., much after expiry of Section 19., It was argued that in any case Section 84A of the Gujarat Value Added Tax Act is manifestly arbitrary and violates Article 14 and Article 19(1)(g) of the Constitution of India. When assessment for a particular year attains finality the same creates a vested right in favour of the dealer. The dealer arranges his affairs considering the fact that his liability has crystalized for periods where assessments have attained finality. Alteration of such position without any definite time limit only on the ground that judgement in favour of the revenue has been pronounced by a Court in another case is manifestly arbitrary and illegal. Moreover, the impugned provision has been retrospectively introduced with effect from 01.04.2006. Therefore the High Court of India has rightly struck it down as being manifestly arbitrary and illegal., It is argued that if an unlimited time period is available to the revenue for assessment/reassessment/revision in any case based on decisions in the case of other dealers will lead to unimaginable chaos and therefore it is rightly struck down as being manifestly arbitrary and illegal. The Respondent is supported on all fours by the judgement of the Honorable nine‑judge bench of the Supreme Court of India in the case of Mafatlal Industries. In that case, this Court was faced with a situation converse to the present case in as much as assessors used to claim a refund after number of years on the basis of judgements rendered in the case of other assessors. This Court observed that allowing refund claims beyond the stipulated period of limitation based on decisions rendered in other cases would do violence to several well‑accepted principles of law. It was further observed that one of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. Denouncing the legality of the practice of claiming a refund after a number of years based on subsequent decisions, it was observed that an order or decree of a court does not become ineffective or unenforceable simply because at a later point of time a different view of law is taken and that if this theory is applied universally it will lead to unimaginable chaos., Section 64 of the Gujarat Value Added Tax Act requires the dealer to preserve books of accounts only for a period of six years from the end of the relevant accounting year. The proviso thereto requires further preservation of books of accounts only to the extent a matter is pending in appeal or revision. However, the impugned provision exposes the dealer to assessment/reassessment/revision for an indefinite period which is excessive and disproportionate. In fact, retrospective operation of the provision with effect from 01.04.2006 allows the reopening of assessments of years in respect of which a dealer was not required to preserve books of accounts and therefore retrospective operation is all the more onerous and manifestly arbitrary., In the Telangana batch of cases, the facts are that the amendment to the State Value Added Tax Act was confined to two provisions which are Sections 21 and 32. Their effect was to prolong or extend the period of limitation to issue notice of reassessment and reopen cases as well as extend the period of limitation for deciding pending revisions and proceedings. These were subjected to a time limit of four years in the existing law. By virtue of the amendment, these were enlarged by a further period of two years (i.e., to six years). This became the subject matter of challenge before the Telangana High Court which culminated in the impugned judgment., So far as the Gujarat set of cases is concerned, the facts are that the Gujarat Value Added Tax Act came into force on 01.07.2017. After that date, the Gujarat legislature repealed the State Value Added Tax Act. The High Court of India had set aside an assessment, based on an interpretation of the existing Value Added Tax Act, much before 16.09.2016. The Gujarat Legislature amended the Value Added Tax Act (after its repeal) by introducing a new provision, Section 84A, which was given retrospective effect. The effect of this amendment was to exclude the period spent during the pendency of any appeal or revision before the appellate authority or High Court, for the purpose of revision or reopening which in the interest of the revenue was necessary to reopen. These became the subject matter of challenge on diverse grounds before the High Court of India. The High Court, by its elaborate and reasoned judgment, held the amendment to be unconstitutional on the ground that the legislature lacked competence to enact the provision having regard to Section 19 of the 101st Amendment and furthermore that the amended provision was manifestly arbitrary., In the Maharashtra batch of matters, the subject matter of the proceedings was Maharashtra Value Added Tax and amendments made to it. Maharashtra Value Added Tax came into force on 01.03.2005 to consolidate laws regarding the collection of tax in sales and purchase of goods. The 101st Constitution Amendment Act came into effect on 16.09.2016 and by the Amendment, the power of the State government to levy tax on sales and purchase of goods under Entry 54 of List II was sought to be restricted only with respect to the six goods mentioned therein. The State government amended Section 26 of the Maharashtra Value Added Tax Act and inserted sections 6A, 6B and 6C requiring assessee to deposit ten percent of the disputed tax amount, failing which the appeal of the concerned assessee will be dismissed. The High Court of India upheld the amendment made to the Maharashtra Value Added Tax Act requiring assessees to deposit ten percent of the disputed amount before filing the appeal., Interpretation of Section 19. The petitioners contended that the language of Section 19 of the Amendment Act does not attach itself to the body of the Constitution unlike the other provisions. The further argument was that the power to amend is to be seen in the context. The other provisions of the amendment inserted new provisions of the Constitution itself. They also altered substantially entries of taxation particularly Entry 54 of the State List beyond recognition, denuding states of power to levy Value Added Tax on most items. Those provisions become effective immediately upon the bringing into force of the Amendment, i.e., 16.09.2016. A contextual interpretation of Section 19 therefore would mean that it preserved the operation of existing laws till they were repealed or such laws were brought in line with the other provisions of the amendment which became part of the Constitution. It was submitted in this context that Section 19 cannot be considered as a part of the Constitution, but merely as an incidental provision with limited operation., Section 19 seeks to achieve three aims. The first is to preserve the existing status quo with regard to the State and Central indirect tax regime, for a period of one year from the date of commencement of the Amendment or till a new law is enacted whichever is earlier. The second is authorising the competent legislatures, i.e., the State Legislatures and Parliament, to amend existing laws which were in force in States and other parts of the country (obviously both Central and State laws). The third is the repeal of such laws. Now, that Section 19 was meant to be transitional cannot be doubted. In its absence, the several hundred State enactments and Central laws which were in force would have been jeopardised. Other than Section 19 there is no saving provision which is part of the Amendment. It is questionable whether Section 6 of the General Clauses Act, 1897, would have applied on its own force. Consequently, Parliament, acting in a constituent capacity, amended the substantive parts of the Constitution and also, at the same time, ensured through Section 19 that limited operation of existing laws continued till the legal regime was changed in accordance with the amended parts of the Constitution. Keeping in mind that the Amendment denuded the States and even Parliament of legislative authority in regard to the pre‑existing (i.e., pre‑amendment) powers and fields of taxation, the absence of such a transitional provision might have been catastrophic. It was in this context that Section 19 also clarified that not only were the laws to be continued in force but also that the States and Parliament could amend, or repeal them., The petitioners have relied upon the judgments of the Supreme Court of India in Bondu Ramaswamy (supra) and Vipulbhai (supra). In the present case, there is no dispute with respect to the fact that Section 19 also seeks to achieve the same objects, i.e., the preservation of existing fiscal and taxation laws prevailing in various statutes and in other parts of the country for a limited duration of one year or till they were amended or repealed. The distinction pointed out by the petitioners is that transitional provisions as they were involved in those cases become part of the Constitution, as they continued and still continue in force long after the amendment. Whereas in the present case, Section 19 has a limited life and would not ever become part of the Constitution., The question is whether that really is so. It is undisputed that the amendment was enacted pursuant to what is now recognised as constituent power, which is sourced from Article 368. The present frame of Article 368 underwent a change after the Constitutional 25th Amendment Act of 1971. Before that amendment, the title of the provision was procedure for amendment of the Constitution. By virtue of the amendment, Article 368 is described as the power of Parliament to amend the Constitution and the procedure therefor. Article 368(2) outlines the manner of initiation of the amendment, i.e., through a Bill, and thereafter outlines the procedure requiring a majority of not less than two‑thirds of the members present and voting in both Houses of Parliament. After the passage of the Bill, it is to be presented to the President for assent. Unlike in the case of recommendations of the Cabinet, or when any other Bill is presented, the President has no discretion but shall assent to the Amendment. The proviso to Article 368 requires that wherever enumerated provisions or parts of the Constitution are sought to be amended, there is a category of amendments which have to be ratified by the legislatures of not less than one half of the States by resolutions of their State legislatures., It is unnecessary to recount the well‑documented path that led to the amendment of Article 368 and the subsequent amendments or the fate they met with. What needs to be underlined is that, unlike ordinary legislation, which is traced to the power of Parliament or any other legislative body, the amendment power is distinct inasmuch as it is expressly a constituent power. In Kesavananda Bharati v. State of Kerala, the largest bench ever sat by this Court (13 Judges) declared that the power under Article 368, though constituent and seemingly unbounded, is implicitly limited by the essential features or basic structure doctrine., An ordinary law such as an Act of Parliament is a product of a legislative exercise. The source of that power is traced to the Constitution in specific provisions or through fields of legislation enumerated in one or the other lists. Constitutional law, on the other hand, arises out of the Constitution and creates different organs of the State, defines their powers and imposes limitations on the functioning of the Executive and legislative wings through fundamental rights and other limitations. An ordinary law can be made or changed by the same legislating body exercising legislative power. Since constitutional amendments relate to the fundamental law of the land, which is the source of authority for other laws, they can be achieved only by fulfilling the special procedure., The distinction between constituent power and legislative power was commented upon by the late H. M. Seervai in the Constitutional Law of India: the constituent power is a juristic entity or category separate from legislative power. In India there are three different modes of amending the Constitution. The first, the simplest, involves reorganisation or renaming of States, where a Parliamentary enactment suffices. In other cases, an amendment requires the special procedure of a two‑thirds majority in both Houses and assent by the President. The special category carved out by the proviso to Article 368 adds the requirement of ratification by at least one half of the State Legislatures by resolution. Thus the nature of the amendment and the structure of Article 368 distinctly bring home the point that it encapsulates both the power and the procedure for amendment., This Court, in the judgment reported as A. K. Roy, dealt with some aspects of this issue. The challenge there was essentially to provisions of the then National Security Act. One of the grounds of challenge was that it violated Article 22. Since Article 22 was amended by the 44th Amendment to the Constitution and the provisions of those amendments were not brought into force, Section 1(2) of that Constitution Amendment was challenged. This Court held that the power conferred upon Parliament by Article 245 to make laws is plenary within the field of legislation upon which that power can operate and is subject only to the provisions of the Constitution. The constituent power, subject to the limitation aforesaid, cannot be any less plenary than the legislative power, especially when the power to amend the Constitution and the power to legislate are conferred on the same organ of the State, namely, Parliament. The Parliament may have to follow a different procedure while exercising its constituent power under Article 368 than the procedure it follows while exercising its legislative power under Article 245, but the obligation to follow different procedures does not affect the width of the power. In either event, the power is plenary, subject in one case to the constraints of the basic structure of the Constitution and in the other to the provisions of the Constitution., It is true that the constituent power, i.e., the power to amend any provision of the Constitution by addition, variation or repeal, must be exercised by Parliament itself and cannot be delegated to an outside agency. That is clear from Article 368(1), which defines the scope of the constituent power of Parliament and limits that power to Parliament. The power to issue a notification for bringing into force the provisions of a Constitutional amendment is not a constituent power because it does not carry with it the power to amend the Constitution. It is permissible for Parliament to vest in an outside agency the power to bring a Constitutional amendment into force. In the instant case, that power is conferred by Parliament on another organ of the State, namely, the executive, which is responsible to Parliament for all its actions. Parliament does not lose its power to bring the Amendment into force by empowering the Central Government to do so. If the Central Government fails to act as Parliament expects, Parliament may delete Section (2) of the 44th Amendment Act by following the due procedure and bring that Act or any of its provisions into force., In the opinion of this Court, the mere circumstance that Section 19 does not get added to the Constitution would not make any difference. If one looks closely at Articles 243 ZF, which this Court interpreted in Bondu Ramaswamy (supra), and Article 243 ZT, which was interpreted in Vipulbhai (supra), the effects of those provisions are the same as Section 19. Although those provisions continued to be part of the Constitution, they have no meaning and were merely historical because they were operative for a limited duration like Section 19. However, the fact remains that those provisions as well as Section 19 were enacted in exercise of the constituent power. Section 19 is not, in this Court’s opinion, comparable to a mere Parliamentary enactment. It was adopted as part of the 101st Constitution Amendment Act. Undoubtedly, it was not inserted into the Constitution. Whatever reasons impelled Parliament to keep it outside the body of the Constitution, the fact remains that it was introduced as part of the same Amendment Act which entirely revamped the Constitution., Furthermore, it is clear that apart from Section 19 there is another proviso to Section 20 (also part of the 101st Amendment Act) that reads as follows: (1) If any difficulty arises in giving effect to the provisions of the Constitution as amended by this Act (including any difficulty in relation to the transition from the provisions of the Constitution as they stood immediately before the date of assent of the President to this Act to the provisions of the Constitution as amended by this Act), the President may, by order, make such provisions, including any adaptation or modification of any provision of the Constitution as amended by this Act or law, as appear to the President to be necessary or expedient for the purpose of removing the difficulty, provided that no such order shall be made after the expiry of three years from the date of such assent. (2) Every order made under sub‑section (1) shall, as soon as may be after it is made, be laid before each House of Parliament., It cannot be in dispute that Section 20 existed for a period of two years and enabled the President to issue orders for the removal of difficulties experienced in the course of implementing the amendments to the Constitution. If indeed those parts of the amendments were not enacted in the exercise of constituent power but merely legislative power, there would be no legitimacy of the power conferred upon the President under Section 20., On an overall interpretation of the provisions of the Amendment, it is held that Sections 19 and 20 constitute incidental and transitory provisions which have limited life, so to speak. Whether they become part of the Constitution or not is really academic. What really matters is the effect of those provisions., In this context, Section 143(2) of the Government of India Act, 1935 was considered by a Constitution Bench of the Supreme Court of India in Rama Krishna Ramanath. That provision reads as follows: Any taxes, duties, cesses or fees which, immediately before the commencement of Part III of this Act, were being lawfully levied by any Provincial Government, municipality or other local authority or body for the purposes of the Province, municipality, district or other local area under a law in force on the first day of January, nineteen hundred and thirty‑five, may, not withstanding that those taxes, duties, cesses or fees are mentioned in the Federal Legislative List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by the Federal Legislature., In Rama Krishna Ramanath it was held that, considering the use of the phrase \continue to be levied\ found in Section 143(2) of the Government of India Act, until provisions to the contrary are made by the Federal Legislature, the provision posits a limited legislative power in the province to indicate or express a desire to continue or not to continue the levy, which would include the power to repeal the statute in its entirety. Such limited legislative power would also include reducing the rate of tax, though continuing the levy.
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Having said so, the Supreme Court of India observed how this limited legislative authority could be exercised: the effect of the provision of the Constitution would be to enable the continuance of the power to levy the tax but this does not alter the fact that the provision by its implication confers a limited legislative power to desire or not to desire the continuance of the levy, subject to the overriding power of the Central Legislature to put an end to its continuance. It is on the basis of the existence of this limited legislative power that the right of the Provincial Legislature to repeal the taxation provision under the Act of 1920 could be rested. Suppose, for instance, a Provincial Legislature desires the continuance of the tax but considers the rate too high and wishes it to be reduced and passes an enactment for that purpose. It cannot be that the legislation is incompetent and that the State Government must permit the local authority to levy tax at the same rate as prevailed on 1 April 1937 if the latter desired the continuance of the tax. If such legislation were enacted to achieve a reduction of the rate of the duty, its legislative competence must obviously be traceable to the power contained in the words “may continue to be levied” in section 143(2) of the Government of India Act. In the exercise of this limited legislative power the Provincial Legislature would also have a right to legislate for the continuance of the tax provided, if of course, the other conditions of section 143(2) are satisfied, namely (1) that the tax was lawfully levied by a local authority for the purposes of a local area at the commencement of Part III of the Government of India Act, (2) that the identity of the body that collects the tax, the area for whose benefit the tax is to be utilised and the purposes for which the utilisation is to take place continue to be the same, and (3) the rate of the tax is not enhanced nor its incidence altered, so that it continues to be the same tax. If, as we have held earlier, there is a limited legislative power in the Province to enact a law with reference to the tax levy so as to continue it, the validity of the Act of 1949 which manifested the legislative intent to continue the tax without any break, the legal continuity being established by the retrospective operation of the provision, has to be upheld., It would be worthwhile to recollect that in Synthetics and Chemicals Ltd. and Others v. State of Uttar Pradesh and Others the Supreme Court of India observed that: “The power to legislate is given by Article 246 and other Articles of the Constitution. The three lists of the Seventh Schedule to the Constitution are legislative heads or fields of legislation. These demarcate the area over which the appropriate legislatures can operate. It is well settled that widest amplitude should be given to the language of the entries in the three Lists but some of these entries in different lists or in the same list may override and sometimes may appear to be in direct conflict with each other; then and only then comes the duty of the court to find the true intent and purpose and to examine the particular legislation in question. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended.”, Recently, Bimolangshu Roy (Deceased) through Law Reports v. State of Assam and Others the Supreme Court of India held that: Article 246 is one of the sources of authority to legislate under the Constitution of India. It declares that Parliament and the legislatures of the various states have the “power to make laws with respect to any of the matters enumerated” in each of the three lists contained in the Seventh Schedule. It also makes clear that the power of Parliament is exclusive with respect to List I and that of the State Legislature with respect to List II. List III indicates various fields over which both Parliament as well as the State legislatures would have authority to legislate concurrently, subject of course to the discipline of Article 24. Apart from the declaration contained in Article 246, there are various other Articles of the Constitution which confer authority to legislate either on Parliament or on a State legislature, as the case may be in various circumstances. For example, Article 3 authorises Parliament to make a law either creating a new State or extinguishing an existing State. Such a power is exclusively conferred on Parliament. Article 326, while declaring a right of every citizen who is not less than 18 years of age to register as a voter at any election to the House of the People or to the legislative assembly of a State, authorises the appropriate legislature to disqualify any such citizen to be a voter on any one of the grounds specified under Article 326 by making a law. The authority to make such a law obviously flows directly from the text of Article 32, not from Article 246. See also Articles 2, 3, 11, 15(5), 22(7), 32(3), 33, 34, 59(3), 70, 71(3), 98(2)., It must be remembered that the Supreme Court of India repeatedly held that the entries in the various lists of the Seventh Schedule are not sources of the legislative power but are only indicative of the fields with respect to which the appropriate legislature is competent to legislate. The task of the Supreme Court of India in identifying the scope of an entry in the Lists contained in the Seventh Schedule is not easy. While examining the scope of the entries, the Supreme Court of India must necessarily keep in mind the scheme of the Constitution relevant in the context of the entry in question. A broad pattern can be identified from the scheme of the three lists, the salient features of which are (i) fields of legislation perceived to be of importance for sustaining the federation are exclusively assigned to Parliament, (ii) State legislatures are assigned only specified fields of legislation unlike the United States Constitution, (iii) residuary legislative power is conferred in Parliament; (iv) taxing entries are distinct from the general entries, and (v) List III does not contain a taxing entry. At the same time, it can also be noticed that there is no logical uniformity in the scheme of the three lists contained in the Seventh Schedule., In Bondu Ramaswamy (supra) the provision in question was Article 243ZF. This was inserted, by way of amendment, in the 73rd and 74th amendments of the Constitution of India which came into force on 24 April 1993 and 1 June 1993. The object of the amendments was to strengthen democratic political government and grassroots level in urban and semi‑urban areas by providing constitutional status to municipalities and panchayats. Article 243ZF’s wording is identical to Section 19 in the present case. The Supreme Court of India discussed the effect of Article 243ZF and stated as follows: Any statute or provision thereof which is inconsistent with any constitutional provision will be struck down by the courts. Consequently, if the BDA Act or any provision of the BDA Act is found to be inconsistent with any provision of Part IX‑A of the Constitution, it will be struck down as violative of the Constitution. In regard to any provision of any law relating to municipalities, Article 243ZF suspends such invalidity or postpones the invalidity for a period of one year from 1 June 1993 to enable the competent legislature to remove the inconsistency by amending or repealing such law relating to municipalities to bring it in consonance with the provisions of Part IX‑A of the Constitution. Article 243ZF is a provision enabling continuance of any provision of a law relating to municipalities in spite of such provision being inconsistent with the provisions of Part IX‑A of the Constitution for a specified period of one year. It does not extend the benefit of continuance to any law other than laws relating to municipalities; it also does not provide for continuance of a law for one year if the violation is in respect of any constitutional provision other than Part IX‑A; and it does not declare any provision of a statute to be inconsistent with it nor declare any statute to be invalid. The invalidity of a statute is declared by a court when it finds a statute or its provision to be inconsistent with a constitutional provision. The benefit of Article 243ZF is available only in regard to laws relating to municipalities. The term municipality has a specific meaning assigned to it under Part IX‑A. Article 243P(e) defines the word as meaning an institution of self‑government constituted under Article 243Q. Article 243Q refers specifically to three types of municipalities, that is, a Nagar Panchayat for a transitional area, a Municipal Council for a smaller urban area and a Municipal Corporation for a larger urban area. Thus, neither any city improvement trust nor any Development Authority is a municipality referred to in Article 243ZF. Therefore Article 243ZF has no relevance to test the validity of the BDA Act or any provision thereof. If the BDA Act or any provision thereof is found to be inconsistent with the provisions of Part IX‑A, such inconsistent provision will be invalid even from 1 June 1993, and the benefit of continuance for a period of one year permitted under Article 243ZF will not be available to such a provision of law, as the BDA Act is not a law relating to municipalities., Part IX‑A seeks to strengthen democratic political governance at grassroots level in urban areas by providing constitutional status to municipalities, laying down minimum uniform norms and ensuring regular and fair conduct of elections. When Part IX‑A came into force, the provisions of the existing laws relating to municipalities which were inconsistent with or contrary to the provisions of Part IX‑A would have ceased to apply. To provide continuity for some time and an opportunity to the State Governments concerned to bring the respective enactments relating to municipalities in consonance with the provisions of Part IX‑A, Article 243ZF was inserted. The object was not to invalidate any law relating to city improvement trusts or Development Authorities which operate with reference to specific and specialised fields of planned development of cities by forming layouts and making available plots, houses or apartments to the public., The effect of the 97th amendment to the Constitution, which came into force on 12 January 2012, was to introduce provisions to strengthen the functioning of cooperative societies in a democratic, autonomous and economically sound manner. Various new provisions granted constitutional status to cooperative societies and inserted Part IX‑B in the Constitution which specified several conditions for state laws relating to cooperative societies. Article 243ZT, which is worded similarly to Section 19 of the present case, sought to continue in force existing laws for a limited duration until amended or repealed or until the expiration of one year from the commencement of the amendment act. The Supreme Court of India held in Vipulbhai (supra) on an interpretation of 243ZT that the competent legislature could suitably amend the existing provisions in their laws in tune with the constitutional mandate., Once it is conceded that Section 19 was enacted as part of the constituent power and has the same force as the rest of the constitutional amendment and is not a mere Parliamentary enactment, one has to consider the consequence of this sequitur to such a finding. The previous rulings in Bondu Ramaswamy (supra) and Vipulbhai (supra) indicate that even in the case of transitional provisions of the kind that they dealt with, which were enacted as part of the Constitution, the State’s power to amend is limited to bring the existing law in conformity with the new provisions of the Constitution brought into force by the concerned amendment. In those cases, the court was not confronted with the complex situation that arises today. The 101st amendment, as noted earlier, uniquely transformed the indirect taxation regime and revamped the constitutional compact itself. Gone were the traditional delineations of distribution of legislative power, including taxation fields, which traced their origins to Articles 245 and 246 and the rules for handling repugnancy enacted in Article 254. Instead, an entirely new concept of sourcing common or concurrent power of both the State legislatures and the Union was introduced through the newly added provision Article 246A., As held earlier, the change was dramatic and revolutionary and wisely the constitutional amending body, which is Parliament and the ratifying States, felt it expedient to ensure that during the transitional period of one year or till the new GST regime was ushered through an enactment, there ought to be flexibility with the States and Parliament to make such changes as the times demanded. In the previous two judgments, Bondu Ramaswamy (supra) and Vipulbhai (supra), there was no question of denuding the powers of the State or conferring new powers on Parliament and the State but rather creation of new bodies as in the case of Panchayats and Zila Parishads in Bondu Ramaswamy and imposing new standards in Vipulbhai, in relation to cooperative societies. Then, the existing legal regime was preserved for a limited duration. Yet the court felt that the amendments should not have a lasting impact going beyond the period provided by the savings or transitional provisions as that would have inevitably met with challenges as not being in conformity with the new regime., In the present case, however, Section 19 is seen as a plenary constituent power, subject to other limitations in the Constitution, and also given that by the amendment the legislative entries in the fields which are Entry 54 of the State List and Entry 84 of the Central List were substantially changed, this Supreme Court of India has to take into account the reality that State’s powers or even Parliament’s power had to be sourced directly from the amendment., There is merit in the argument that although Article 246A in a sense itself comprehends the power to impose tax on goods and services, its operationalisation could take place only through the recommendations of the GST Council. The GST Council appears to have been formed in the wake of the 101st amendment; nevertheless, the process of making recommendations had only begun. Therefore, the power to make laws could not have been sourced only to Article 246A. The power to make laws, in the opinion of this Court (which is to amend or repeal existing laws), could then be sourced to some other provision as well. In the present case, Section 19 itself is held to be the source which enables Parliament and the State Legislatures (along with Article 246A) to amend the existing laws. The analogy of Entry 97 of the Union List would be tempting. In the case of Parliament, it could be said that once the power to enact laws relating to service tax stood deleted, Entry 92C also stood, in a sense, devoid of its essence. Entry 97 could still arguendo be a source of power to amend the existing Central laws. That interpretation is not feasible, because the expression used in Section 19 is “the competent legislature”, and not “Parliament”; the latter alone can enact in the exercise of the power conferred by Entry 97 of the Union List. However, that conclusion would not be consistent with the coming into force of the amendment on 16 September 2016. The only harmonious manner of sourcing the power to amend or repeal could be to Section 19 and Article 246A, which are to be seen as both the power enabling the existing state of affairs to continue and also enabling both the centre and the States to make necessary changes in the existing laws through amendment or repeal., There is no doubt that the authority to legislate flows from the Constitution. In the context of our Constitution, this authority has been traditionally located primarily in Articles 245 and 246. The courts have consistently recognized that the Lists in the Seventh Schedule to the Constitution merely delineate the fields of legislation; they are not considered as sources of power. The authority or the power stems from Articles 245 and 246. The reorganisation of those legislative fields, particularly Entry 84 of the First List and Entry 54 of the Second List and the conferment of larger powers upon both legislative entities, i.e., Parliament and the State Legislatures, meant that both authorities could legislate upon all subject matters comprehended within the description of goods and services for the purpose of indirect taxation under Article 246A. Yet the operationalisation of this provision required the formulation of the principles by the GST Council, which occurred later. The hiatus between the coming into force of the constitutional amendment and the enactment of comprehensive legislation, based upon the recommendations of the GST Council, provided for by Section 19, as held in the previous segment of this judgment, means Section 19 is to be construed as part of the Constitution for the limited duration it operated and was effective., Thus, the sequitur would be that the authority to legislate is expressed through Section 19 read with Article 246A. In other words, in the absence of principles formulated by the GST Council, the authority reserved by Section 19 and Article 246A to amend or repeal the law as originally understood would stand obliterated from the Constitution. This would have resulted in a conundrum. Therefore, Section 19 and Article 246A are to be understood as expressing a field of legislation available to both Parliament and the State Legislatures to, in furtherance of the status quo, cater to unforeseen or other eventualities in the administration of existing tax laws. For example, a heavy financial burden being cast as a consequence of a defective machinery for collection of an existing levy, the High Court invalidating a rule or statutory provision. In that event, were it to be held that the State lacked competence altogether to legislate and cure the defects through a validating enactment, during the period till 1 July 2017, the results could have been catastrophic. The phrase “amend or repeal” denotes a legislative activity. That it is spoken of in a provision introduced through a constituent process means that it has to be given meaning, because no words or provisions can be considered surplusage., The meaning of the term “amend” is well‑known; it takes within its sweep the idea of correcting something, adding something, deleting, or substituting something, or doing something to an existing document, enactment, or rule to make it better. P. Ramanatha Iyer’s Advance Law Lexicon states: “Amendment is, in fact, a wider term and it includes abrogation or deletion of a provision in an existing statute. If the amendment of an existing law is small, the Act professes to amend; if it is extensive, it repeals a law and re‑enacts it. There is no real distinction between repeal and an amendment.” (Bhagwat Ram Sharma v. Union of India, AIR 1988 Supreme Court 740, 746). “Amend” is a word derived from the French word signifying to make better; to change for the better. To alter formally by some addition, omission or substitution (Preamble, T.P. Act (4 of 1882)). The power to amend the Constitution conferred by Article 368 of the Constitution is wide enough to include the power to take away fundamental rights (Shankri Prasad Singh v. Union of India, AIR 1951 Supreme Court 458). The dictionary meaning of the word “amend” is to correct a fault or reform; but in the context of Article 368 reliance on the dictionary meaning of the word is singularly inappropriate, because what Article 368 authorises is the amendment of the provisions of the Constitution. An amendment of a law may in a proper case include the deletion of one or more provisions of the law and substitution in their place of new provisions. Similarly, an amendment of the Constitution, which is the subject‑matter of the power conferred by Article 368, may include modification or change of the provisions or even an amendment which makes the said provisions inapplicable in certain cases (Sajjan Singh v. State of Rajasthan, Madras Law Journal (1961‑1965) Vol II 1204‑1205; (1965) 1 SCJ 377; (1965) 1 Madras Law Journal (SC) 57; AIR 1965 Supreme Court 845). The term “amended” in Section 1(2) of the Calcutta Tenancy Amendment Act must be construed in its natural meaning as altered by addition, substitutions and omissions (Deorajin Debi v. Satyadhyan, AIR 1954 Calcutta 119)., It is therefore held that there were no limitations under Section 19 (read together with Article 246A) of the amendment. That provision constituted the expression of the sovereign legislative power, available to both Parliament and State Legislatures, to make necessary changes through amendment to the existing laws. As held in Rama Krishna Ramanath (supra), the transitional power (in that case, Section 143(3)) by its implication confers a limited legislative power to desire or not to desire the continuance of the levy. This limited legislative power was not constricted or limited in the manner alleged by the States; it is circumscribed by the time limit, indicated as one year, or till the new GST law was enacted. It could therefore enact provisions other than those bringing the existing provisions in conformity with the amended Constitution., C. Validity of Telangana Act tested from the touchstone of its originating as an ordinance. Telangana had argued that although with effect from 1 July 2017, due to the enactment of the CGST Act, its State Legislature could not per se enact a new law on a subject matter contained within the original Entry 54 of the State List, nevertheless, the approval of the ordinance which amended the existing State law on 2 July 2017 had the effect of relating back to the original date when it was validly amended. This argument was supported by the theory of relating back of the law to a date when the power to enact existed. The argument in support was that in terms of its effect there is no difference between an ordinance (which is merely a product of a different procedure, i.e., executive law making) and an enactment of law by the legislature. An ordinance may have a limited life but once confirmed, or enacted, it acquires permanence. Even during the time it is in force, it is as effective and as binding on the subject matter and the State as an enacted law. The effect of an ordinance was explained in A.K. Roy (supra) as follows: “The Constitution makes no distinction in principle between a law made by the legislature and an ordinance issued by the President. Both, equally, are products of the exercise of legislative power and, therefore, both are equally subject to the limitations which the Constitution has placed upon that power.”, In R.K. Garg Etc. v. Union of India & Others the Supreme Court of India held similarly that ordinance‑making power is co‑extensive with the power of Parliament to make laws; it is difficult to see how any limitation can be read into this legislative power of the President so as to make it ineffective to alter or amend tax laws. If Parliament can, by enacting legislation, alter or amend tax laws, equally the President can do so by issuing an ordinance under Article 123., This Supreme Court of India is of the view that the submissions of the Telangana State are not substantial. There can be no doubt that an ordinance promulgated by the Government is as much a law as any binding law enacted by a State legislature. The difference is that, contrary to the traditional role of the executive, law making does not fall within its primary domain. Yet the Constitution clothes the executive with the emergency power of promulgating ordinances which can operate for a limited duration and must be mandatorily laid before the State legislature for its approval or disapproval. In the event of approval, the ordinance is given the shape that the legislature accords to it. In India, practice has been largely to enact the provisions or incorporate the ordinance in the form of a Bill which is then approved by the House or Houses of the State legislature and then results in an Act. Although the State is correct in characterising that law making in both cases is shaped by two different procedures, stopping at that would be an oversimplification., This Supreme Court of India had on previous occasions dealt with the effect of the power of issuing ordinances and their effect. There were a few conflicting judgments on the issue, especially on whether the effect of anything done during the time when the ordinance is in force can continue to bind and be effective even after it ceases to be operative, or in other words, has lapsed. Since conflicting decisions existed, a larger seven‑judge bench examined the matter in detail in Krishna Kumar Singh (supra). A majority judgment of five judges is of the opinion that the theory of lasting effect of an ordinance cannot be supported. Krishna Kumar Singh (supra) first explained the effect of an ordinance: Is the requirement of laying an ordinance before the State legislature mandatory? There can be no doubt that it is. The expression “shall be laid” is a positive mandate which brooks no exceptions. That the word “shall” in sub‑clause (a) of clause 2 of Article 213 is mandatory emerges from reading the provision in its entirety. An ordinance can be promulgated only when the legislature is not in session. Upon the completion of six weeks of the reassembling of the legislature, an ordinance “shall cease to operate”. In other words, when the session of the legislature reconvenes, the ordinance promulgated has a shelf life which expires six weeks after the legislature has assembled, and thereafter it ceases to operate. The larger bench then proceeded to examine the need to lay the ordinance before the State legislature: Laying of an ordinance before the State legislature subserves the purpose of legislative control over the ordinance‑making power. Legislation by ordinances is not an ordinary source of law making but is intended to meet extraordinary situations of an emergent nature, during the recess of the legislature. The Governor, while promulgating an ordinance, does not constitute an independent legislature, but acts on the aid and advice of the Council of Ministers under Article 163. The Council of Ministers is collectively responsible to the elected legislative body to whom the government is accountable. The Constitution reposes the power of enacting law in Parliament and the State legislatures under Articles 245 and 246, between whom fields of legislation are distributed in the Seventh Schedule. Constitutional control of Parliament and the State legislatures over the ordinance‑making power of the President (under Article 123) and the Governors (under Article 213) is a necessary concomitant to the supremacy of a democratically elected legislature.
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The reassembling of the legislature defines the outer limit for the validity of the Ordinance promulgated during its absence in session. Within that period, a legislature has authority to disapprove the Ordinance. The requirement of laying an Ordinance before the legislative body subserves the constitutional purpose of ensuring that the provisions of the Ordinance are debated upon and discussed in the legislature. The legislature has before it a full panoply of legislative powers and as an incident of those powers, the express constitutional authority to disapprove an Ordinance. If an Ordinance has to continue beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the legislature incorporating its provisions. Significantly, our Constitution does not provide that an Ordinance shall assume the character of a law enacted by the state legislature merely upon the passing of a resolution approving it. In order to assume the character of enacted law beyond the tenure prescribed by Article 213(2)(a), a law has to be enacted. The placement of an Ordinance before the legislature is a constitutional necessity; the underlying object and rationale being to enable the legislature to determine the need for and expediency of an ordinance, whether a law should be enacted, or whether the Ordinance should be disapproved., The failure to lay an Ordinance before the state legislature constitutes a serious infraction of the constitutional obligation imposed by Article 213(2). It is upon an Ordinance being laid before the House that it is formally brought to the notice of the legislature. Failure to lay the Ordinance is a serious infraction because it may impact upon the ability of the legislature to deal with the Ordinance. We are not for a moment suggesting that the legislature cannot deal with a situation where the government of the day has breached its constitutional obligation to lay the Ordinance before the legislature. The legislature can undoubtedly even in that situation exercise its powers under Article 213(2)(a). However, the requirement of laying an Ordinance before the state legislature is a mandatory obligation and is not merely of a directory nature. We shall see how in the present case a pattern was followed by the Governor of Bihar of promulgating and re-promulgating Ordinances, none of which was laid before the state legislature. Such a course of conduct would amount to a colourable exercise of power and an abuse of constitutional authority. Now it is in this background, and having thus far interpreted the provisions of Article 213, that it becomes necessary to refer to the precedents on the subject and to the nuances in the interpretation of the constitutional provisions. The Supreme Court of India then examined the legal effects of an ordinance, in case, it ceased to operate:, What then is the effect upon rights, privileges, obligations or liabilities which arise under an ordinance which ceases to operate? There are two critical expressions in Article 213(2) which bear a close analysis. The first is that an ordinance \shall have the same force and effect\ as an act of the legislature while the second is that it \shall cease to operate\ on the period of six weeks of the reassembling of the legislature or upon a resolution of disapproval. The expression \shall have the same force and effect\ is prefaced by the words \an ordinance promulgated under this article\. In referring to an ordinance which is promulgated under Article 213, the Constitution evidently conveys the meaning that in order to have the same force and effect as a legislative enactment, the ordinance must satisfy the requirements of Article 213. Moreover the expression \shall have the same force and effect\ is succeeded by the expression \but every such ordinance shall be subject to what is stated in sub-clauses (a) and (b)\. The pre-conditions for a valid exercise of the power to promulgate as well as the conditions subsequent to promulgation are both part of a composite scheme. Both sets of conditions have to be fulfilled for an ordinance to have the protection of the \same force and effect\ clause. Once the deeming fiction operates, its consequence is that during its tenure, an ordinance shall operate in the same manner as an act of the legislature., What is the consequence of an ordinance ceasing to operate by virtue of the provisions of Article 213(2)(a)? There are two competing constructions which fall for consideration. The expression \shall cease to operate\ can on the one hand be construed to mean that with effect from the date on which six weeks have expired after the reassembling of the legislature or upon the disapproval of the ordinance, it would cease to operate from that date. \Cease\ to operate in this sense would mean that with effect from that date, the ordinance would prospectively have no operation. The ordinance is not void at its inception. The second meaning which can be considered for interpretation is that the expression \shall cease to operate\ will mean that all legal consequences that arose during the tenure of the ordinance would stand obliterated. According to the second construction, which is wider than the first, the consequence of an ordinance having ceased to operate would relate back to the validity of an ordinance., Now, one of the considerations that must be borne in mind is that Article 213 has not made a specific provision for the saving of rights, privileges, obligations or liabilities that have arisen under an ordinance which has since ceased to operate either upon the expiry of its term or upon a resolution of disapproval. Significantly, there are other provisions of the Constitution where, when it so intended, the Constitution has made express provisions for the saving of rights or liabilities which arise under a law. The Supreme Court of India then overruled previous judgments, which had relied on and applied the enduring rights theory, to hold that rights and privileges, acquired, or created, and obligations cast or assumed would continue, even if the ordinance were to lapse, or become void. It was held that:, The enduring rights theory which was accepted in the judgment in Bhupendra Kumar Bose was extrapolated from the consequences emanating from the expiry of a temporary act. That theory cannot be applied to the power to frame ordinances. Acceptance of the doctrine of enduring rights in the context of an ordinance would lead to a situation where the exercise of power by the Governor would survive in terms of the creation of rights and privileges, obligations and liabilities on the hypothesis that these are of an enduring character. The legislature may not have had an opportunity to even discuss or debate the ordinance (where, as in the present case, none of the ordinances was laid before the legislature); an ordinance may have been specifically disapproved or may have ceased to operate upon the expiry of the prescribed period. The enduring rights theory attributes a degree of permanence to the power to promulgate ordinances in derogation of parliamentary control and supremacy. Any such assumption in regard to the conferment of power would run contrary to the principles which have been laid down in S.R. Bommai. The Constitution has not made a specific provision with regard to a situation where an ordinance is not placed before a legislature at all. Such an eventuality cannot be equated to a situation where an ordinance lapses after the prescribed period or is disapproved. The mandate that the ordinance will cease to operate applies to those two situations. Not placing an ordinance at all before the legislature is an abuse of constitutional process, a failure to comply with a constitutional obligation. A government which has failed to comply with its constitutional duty and overreached the legislature cannot legitimately assert that the ordinance which it has failed to place at all is valid till it ceases to operate. An edifice of rights and obligations cannot be built in a constitutional order on acts which amount to a fraud on power. This will be destructive of the rule of law. Once an ordinance has been placed before the legislature, the constitutional fiction by which it has the same force and effect as a law enacted would come into being and relate back to the promulgation of the ordinance. In the absence of compliance with the mandatory constitutional requirement of laying before the legislature, the constitutional fiction would not come into existence. In the present case, none of the ordinances promulgated by the Governor of Bihar were placed before the state legislature. This constituted a fraud on the constitutional power. Constitutionally, none of the ordinances had any force and effect. The noticeable pattern was to avoid the legislature and to obviate legislative control. This is a serious abuse of the constitutional process. It will not give rise to any legally binding consequences., In the present case, the Telangana ordinance was promulgated on 17.6.2016. The Telangana State GST Act was enacted and received the assent of the Governor on 25.05.2017; it was brought into force on 01.07.2017. The state GST Act contained a savings and repeal law, which sought to save acts done, privileges and rights accrued under the repealed enactment, i.e., the State VAT Act. It was argued that once the State Legislature approved the ordinance and enacted the amendment, in conformity with it, the provisions of the Ordinance became part of the act. The question of legislative competence would not arise, because the mere confirmation of an ordinance is within the competence of the State legislature. Since the law was introduced through a different procedure, i.e., ordinance, the effect of that law, empowering the VAT officials to reopen or complete assessments, was no different., This Supreme Court held in Hajee Abdul Shukoor (supra) that: The State legislature is free to enact laws which would have retrospective operation. Its competence to make law for a certain past period depends on its present legislative power and not on what it possessed at the period of time when its enactment is to have operation. We therefore do not agree with this contention. The matter can be looked at in a different way. The 1939 Act required no assent of the President. The State Legislature was doing in 1963 what the legislature enacting the 1939 Act was supposed to have enacted and therefore its enactment was not governed by the constitutional requirement for an Act to be enacted during the period Act LII of 1952 was in force. Lastly, it has been urged for the petitioner that hides and skins have been declared to be of special importance in inter‑State trade or commerce by s.14 of the Central Sales Tax of 1956. The tax imposed by sub‑section (1) of s. 2 of the Act is a tax on the sale of hides and skins in the course of inter‑State trade or commerce and therefore falls within entry No. 92A of List I of Seventh Schedule and that therefore the State legislature was not competent to impose it. It could impose by virtue of entry No. 54 in List II of Seventh Schedule tax on the sale or purchase of goods subject to the provisions of entry No. 92A of List I. There is no force in this contention. The tax is imposed on the sale which took place within the State. The State legislature is competent to impose such a tax. The mere fact that the article sold in the State had been brought from outside the State does not make the sale of that article a sale in the course of inter‑State trade or commerce. It is only when A, in State X, purchased through a commission agent in a State Y and receives the articles purchased through the commercial agency that the sale comes within the expression 'in the course of inter‑State trade': See State of Travancore Cochin v Shanmugha Vilas Cashew Nut Factory (supra at p. 70). It has been argued for the State that the Act is not affected by the provisions of Arts. 301 to 304 of the Constitution as they affect the legislative power with respect to Acts to operate in the future and not the power to enact Acts which would operate in the past. We do not consider the contention sound. The Act makes provision for a period subsequent to the commencement of the Constitution and therefore is to be subject to the provisions of the Constitution. We therefore hold that sub‑section (1) of S. 2 of the Act discriminates against imported hides and skins which were sold up to the 1st of August 1957 up to which date the tax on sale of raw hides and skins was at the rate of 3 pies per rupee or 19/16th percent. This however does not mean that the sub‑section is valid with respect to the sales which took place subsequent to August 1, 1957. The subsection being void in its provisions with respect to a certain initial period, we cannot change the provision with respect to the period as enacted to the period for which it could be valid as that would be re‑writing the enactment. We have therefore to hold that sub‑section (1) of Section 2 is void accordingly., It was held by this Supreme Court, in Jaya Thakur v Union of India & Ors that: the challenge to the legislative Act would be sustainable only if it is established that the legislature concerned had no legislative competence to enact on the subject it has enacted., The state of Telangana had argued to the contrary, and explained that when the ordinance was issued, there was no doubt about the state possessing legislative competence. As of that date (17.06.2017) the power to amend existing laws was permissible under Section 19 of the Amendment. However, that argument is not tenable, because the ordinance's validity and effect might not have been suspect on the date of its promulgation; yet, the issue is that on the date when it was in fact approved and given shape as an amendment, the State legislature had ceased to possess the power. By that time, the State GST and the Central GST Acts had come into force (on 01.07.2017). Therefore, Section 19 ceased to be effective. The original entry (Entry 54 of the State List) ceased to exist. In the circumstances, the state legislature had no legislative competence to enact the amendment, which approved the ordinance, which consequently was rendered void., A subsidiary argument was that acts done in pursuance of the ordinance cannot lapse, because they are saved, by virtue of the repeal and savings clause (Section 174) of the State GST Act, all action taken pursuant to the ordinance, when it was in force, would be saved. In the opinion of this Supreme Court, there is no merit in that argument. The invalidity of the amendment by the state legislature (which conformed to the ordinance, on 02.12.2017) went to its root of the jurisdiction of those acting under the amended provisions of the State GST, rendering them (as indeed, the substantive provisions) void and unenforceable. Furthermore, even if for some reason, there were any doubts regarding validity and continuance of any notice, or proceedings, initiated pursuant to the provisions of the ordinance, their invalidity is such that they cannot be sustained. Furthermore, as held in Krishna Kumar Singh (supra) unless the consequences are irreversible there is ordinarily no question of any action taken under an ordinance that is rendered void, due to operation of the provisions of the Constitution, being continued. Though the observations of this Supreme Court were in the context of ordinances lapsing due to their not being presented before the House of the legislatures, the same principle would, in this Court's considered view, apply to cases, where the legislature ceases to have competence over the subject matter., It is therefore held that the provisions of the ordinance, as approved by the later state act, which amended the local VAT Acts, are valid., In the case of the Gujarat VAT Act, the brief facts are that the Deputy Commissioner of Commercial Tax passed an assessment order on December 23, 2009, for the financial year 2006‑07 against the assessee and reversed the input tax credit to the extent of eight per cent., i.e., four per cent, under each of the provisions of sections 11(3)(b)(ii) and 11(3)(b)(iii) of the Gujarat VAT Act. The appellate authority dismissed the assessee. On April 26, 2012, the Gujarat VAT Tribunal allowed the assessee's second appeal by quashing and setting aside both the orders of the sales tax authorities by holding that reduction of the input tax credit to the extent of eight per cent, for purchases was not applicable to consignment of branch transfer transactions. The High Court, by judgment dated January 18, 2013, dismissed the State Government's appeal against the aforesaid order of the VAT Tribunal, while holding, inter alia, that the reduction of input tax credit under section 11(3)(b) would, in no case, exceed four per cent. It was held that the limitation of availing of the tax credit as provided under section 11(3)(b) could be applied only once irrespective of the fact as to whether particular commodity purchased falls in more than one sub‑clauses of section 11(3)(b) of the VAT Act. An assessment order was made by the concerned officer, for two separate issues. The judgment of the High Court was given effect to by tax authorities. In a decision of the VAT Tribunal, rendered in another case wherein it was observed that tax paid by the assessee on purchases of goods used in manufacture of taxable goods exported outside the country was not to be included. In other words, according to the Tribunal, the said incentive limit cannot be curtailed by the said tax paid by the assessee. These findings were set aside by the High Court. In view of that judgment, the commissioner issued a revision notice, in March 2018 under Section 75 of the VAT Act, why the benefit given to them should not be revised to give effect to the judgment of the High Court., As noted earlier, provisions of the Constitution (One Hundred and First Amendment) Act, 2016, were enacted. They came into force with effect from July 1, 2017. On September 20, 2016, the Additional Commissioner of Commercial Tax passed an order and reduced the sales tax incentive, in case of the petitioner company, while considering the tax paid on the purchase of taxable goods used in the manufacture of taxable goods, exported outside the country. On July 1, 2017, two legislations, i.e., the Gujarat Goods and Services Tax Act, 2017 and the Central Goods and Services Tax Act, 2017 came into force to levy tax on all the intra‑State supplies of goods or services or both. The Gujarat Value Added Tax Act, 2003 was substantially amended by way of substitution and deletion of many provisions thereof by virtue of the Gujarat Value Added Tax (Amendment) Act, 2017, which came into force with effect from July 1, 2017. Meanwhile, the High Court passed an order dated September 22, 2017 in an appeal filed by the State, setting aside the judgment dated January 18, 2013 in respect of the assessee who had succeeded., In view of the aforesaid judgment of this Supreme Court, the Additional Commissioner of Commercial Tax issued a revision notice dated November 3/6, 2017 in Form 503 under section 75 of the Act to revise the assessment order for the financial year 2008‑09 made vide order dated March 30, 2013, for reducing the input tax credit to the extent of eight per cent under the provisions of section 11(3)(b)(ii) and 11(3)(b)(iii) of the VAT Act in the light of the judgment dated September 22, 2017, of this Supreme Court. The revision notice was quashed by the High Court., By virtue of the VAT (Amendment) Act, 2018, section 84A was added in the VAT Act to be operative retrospectively with effect from April 1, 2006, inter alia, providing for the exclusion of the period spent between the date of the decision of the Appellate Tribunal and that of the High Court as well as the Supreme Court in computing the period of limitation, referred to in section 75 of the Gujarat VAT Act. In the present case, the period commencing from the date of the decision of high court dated January 18, 2013 rendered against the revenue up to the date of the decision of this Court, i.e., September 22, 2017. As a consequence, on September 1, 2018, fresh notice for revision was issued by the Additional Commissioner of Commercial Tax to the assessee on the basis of the above referred newly added section 84A, for revising the assessment for the financial year 2008‑09. The original period of limitation as provided under Section 75 of the Gujarat VAT Act for issuing notice was of three years from the date of the assessment order, i.e., March 30, 2013, which had lapsed on March 30, 2016. However, by virtue of the newly enacted section 84A, the period spent from the date of the decision of the High Court up to the date of the decision of this Court was to be excluded in computing the aforesaid period of three years, referred to under Section 75 of the Gujarat VAT Act. This development resulted in a challenge to the validity of the amendment. The state had urged that being a validating enactment, which sought to cure the defect found earlier, and given that it operated retrospectively, there is no question of the amendment being invalid., There are undoubtedly several judgments of this Supreme Court such as Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, Government of Andhra Pradesh v. Hindustan Machine Tools Ltd, Ujagar Prints v. Union of India and several others, which hold that a purely curative and validating enactment, if made retrospective, is unexceptionable. However, it has been held by this Supreme Court, in Kerala State Electricity Board v. Indian Aluminium Co. Ltd.: \Both the 1910 Act as well as the 1948 Act are existing law as contemplated under article 372 of the Constitution. An existing law continues to be valid even though the legislative power with respect to the subject‑matter of the existing law might be in a different list under the Constitution from the list under which it would have fallen under the Government of India Act, 1935. But after the Constitution came into force an existing law could be amended or repealed only by the Legislature which would be competent to enact that law if it were to be newly enacted.\ As noted earlier, Ramakrishna Ram Nath held that the power to repeal is co‑extensive with the power to amend, or make a law. It was also held that the power has to be seen at the time when the repealing legislation is being enacted. However, the Legislature should have the competence at the time when such a repealing law is being enacted., In the present case, the retrospective effect given to the amendment, which was brought into force, with effect from 2006, cannot in any way save it, after the coming into force of the GST laws, on 01.07.2017. Nor can there be any argument that the amendment made in February, 2018, is traceable to Article 246A. On this aspect, this Supreme Court held in Union of India v Mohit Mineral Pvt. Ltd that: \The expression used in article 246A is 'power to make laws with respect to goods and service tax'. The power to make law, thus, is not general power related to a general entry rather it specifically relates to goods and services tax. When express power is there to make law regarding goods and services tax, we fail to comprehend how such power shall not include power to levy cess on goods and services tax. True, that the Constitution (One Hundred and First Amendment) Act, 2016 was passed to subsume various taxes, surcharges and cesses into one tax but the constitutional provision does not indicate that henceforth no surcharge or cess shall be levied.\, In the opinion of this Supreme Court, there is no quarrel with the proposition that a legislative body is competent to enact a curative legislation with retrospective effect. Yet, the same vice that attaches itself to the Gujarat amendment, i.e., lack of competence on the date the amendment was enacted i.e., 09.07.2019, the Maharashtra legislature ceased to have any authority over the subject matter, because the original entry 54 had undergone a substantial change, and the power to change the VAT Act, ceased, on 01.07.2017, when the GST regime came into effect.
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Therefore, for the same reasons, as in the other cases, the amendments to the Maharashtra VAT Act cannot survive. Conclusions. In view of the foregoing discussion and conclusions, the findings of the court in these cases are: Section 19 of the Constitution (101st Amendment) Act, 2016 and Article 246A enacted in exercise of constituent power formed part of the transitional arrangement for the limited duration of its operation and had the effect of continuing the operation of inconsistent laws for the periods specified by it and, by virtue of its operation, allowed state legislatures and Parliament to amend or repeal such existing laws. Since other provisions of the said Amendment Act had the effect of deleting heads of legislation from List I and List II of the Seventh Schedule to the Constitution of India, both Section 19 and Article 246A reflected the constituent expression that existing laws would continue and could be amended. The source or fields of legislation, to the extent they were deleted from the two lists, for a brief while, were contained in Section 19. As a result, there were no limitations on the power to amend. The above finding is in view of the vacuum created by the coming into force of the 101st Amendment, which resulted in deletion of the heads of legislation in the two lists aforesaid. The amendments in question, made to the Telangana VAT Act and the Gujarat VAT Act after 01.07.2017 were correctly held void for want of legislative competence by the Telangana High Court and the Gujarat High Court. The judgment of the Bombay High Court is, for the above reasons, held to be in error; it is set aside; the amendment to the Maharashtra Act, to the extent it required pre-deposit, is held void., The appeals and any other special leave petitions filed by the States of Telangana and Gujarat are hereby dismissed in the above terms; the appeals of the assessees against the judgment of the Bombay High Court (that is, Civil Appeal No. 2730‑2733/2023 and Special Leave Petition (Civil) No. 7776/2023) succeed and are allowed. There shall be no order on costs.
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Case: Bail No. 13576 of 2021. Applicant: Salman @ Arman Chaudhary. Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Mohammad Alishah Faruqi, Mohammad Suhai, Razi Ahmad. Counsel for Opposite Party: Additional Government Advocate Hon'ble Pankaj Bhatia, Judge., Learned counsel for the applicant, learned Additional Government Advocate and perused the record. The averments contained in the FIR reveal that on 25 August 2021, a call was received on Police number 112 from mobile number 7011399765 threatening to kill the Prime Minister as well as the Chief Minister. It is also on record that the caller stated that on account of their public statements, he wants to do the same and go to jail. Based upon the said averments, investigation was carried out and the mobile number allegedly used was recovered from the applicant and a case was registered under Sections 506, 507, 505(1)(b) of the Indian Penal Code and Section 66 of the Information Technology Act., Learned counsel for the applicant argues that as per the allegations contained in the FIR, an offence under Sections 506 and 507 is made out, however, the same is triable by a Magistrate and is a bailable offence. He argues that no offence from the allegations contained in the FIR can be said to be made out under Section 505 of the Indian Penal Code. The said offence is said to be a non‑bailable offence. He further argues that no offence can be said to be made out under Section 66 of the Information Technology Act. The applicant is in custody since 31 August 2021 and has no criminal antecedent., Learned Additional Government Advocate, on the other hand, vehemently argues that the nature of the offence committed by the applicant threatens the fabric of society. He threatened the elected representative of the country and should be heavily punished. However, the Additional Government Advocate could not deny the fact that the offences under Sections 506 and 507 of the Indian Penal Code are bailable offences. Considering the fact that prima facie from the FIR an offence can be said to be made out against the applicant under Sections 506 and 507 of the Indian Penal Code, both of them being bailable in nature, coupled with the fact that the applicant has been in jail since 31 August 2021 and there is nothing on record to demonstrate that the applicant, if released on bail, would adversely affect the trial, the applicant is entitled to be released on bail., In view thereof, the application is allowed. Let the applicant Salman @ Arman Chaudhary be released on bail in FIR No. 0319 of 2021, under Sections 506, 507, 505(1)(b) of the Indian Penal Code and Section 66 of the Information Technology Act, Police Station Sushant Golf City, District Lucknow, on furnishing a personal bond with two sureties of Rs 10,000 each to the satisfaction of the Hon'ble High Court of Uttar Pradesh, with the following conditions: The applicant shall file an undertaking that he shall not seek any adjournment on the dates fixed for evidence and that the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence without sufficient cause, the trial court may proceed against him under Section 229-A of the Criminal Procedure Code. In case the applicant misuses the liberty of bail and a proclamation under Section 82 of the Criminal Procedure Code is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Criminal Procedure Code. The applicant shall remain present in person before the trial court on the dates fixed for opening of the case, framing of charge and recording of statement under Section 313 of the Criminal Procedure Code. If, in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
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Standard Operating Procedure for hybrid physical hearing before Honourable Supreme Court of India. In continuation of directions already notified regarding functioning of the Supreme Court of India, in the wake of the Covid-19 pandemic, more particularly through Circulars dated 14 March 2020, 23 March 2020 and 30 August 2020, and on consideration of the requests received from the Bar Associations, the Honourable Chief Justice of India has been pleased to direct as follows., On an experimental basis, and as a pilot scheme, the final hearing and regular matters listed on Tuesdays, Wednesdays and Thursdays may be heard in the hybrid mode, as may be decided by the Honourable Bench, considering the number of parties in a matter as well as the limited capacity of the Courtrooms; all other matters, including those listed on Mondays and Fridays shall continue to be heard through video or teleconferencing mode., Unless otherwise directed by the Honourable Bench, final hearing and regular matters where the number of Advocates for the parties are more than the average working capacity of the Courtrooms, as per Covid-19 norms, that is 20 per courtroom at any given time, shall invariably be listed for hearing through video or teleconferencing mode; however, in case the Honourable Bench directs hearing of such matters to be held through the hybrid mode, the appearance of the parties, whether by physical presence or through video or teleconferencing, will be facilitated as per the directions of the Honourable Bench., If in a matter listed for hybrid hearing, the number of parties is more, then one Advocate on Record and one arguing Counsel per party will be allowed entry; one registered Clerk per party, as may be chosen by the Advocate on Record, shall be allowed entry to carry paper‑books, journals etc. of the Counsels up to the Courtrooms., In any such matter as may be listed for hybrid hearing, all the Counsels appearing for one party can appear either through physical presence or through video or teleconferencing. The Advocate on Record may submit their preferences for appearing before the Supreme Court of India either physically or through video or teleconferencing mode within 24 hours or 1:00 PM next day after the publication of the Weekly List of Final Hearing and Regular matters. If the Learned Advocate on Record for a party does not opt for either mode, that is physical or video or teleconferencing mode, it shall be presumed that Counsels for the party seek to appear through video teleconferencing mode and will be facilitated accordingly., In case of a matter directed to be listed for hybrid hearing by the Honourable Bench, if none of the parties opts for physical hearing, the matter will be taken up for hearing through video or teleconferencing., Entry into the High Security Zone through proximity cards or long‑term passes shall be kept suspended till further orders; entry of counsels, parties or other stakeholders to appear inside the courtroom for hybrid hearing will be through daily special hearing passes which will be issued by the Registry on the basis of authorization by the concerned Advocate on Record., Multiple sets of one chair and table are being placed inside the Courtrooms, in the areas demarcated for Learned Advocates and it shall be incumbent upon the users to maintain minimum prescribed physical distancing norms between each set, which should not be removed from their positions., Special Hearing Pass holders, upon completion of necessary formalities, online or otherwise as may be notified in due time, shall enter the High Security Zone through the designated gate, after subjecting themselves to the thermal and other scanning devices as may be installed for detecting body temperature, infection status, etc., On entering the High Security Zone, such pass holders may proceed to the designated waiting areas or Bar Lounges or Libraries and wait for their turn to enter respective Courtrooms where hybrid hearing of their respective cases may be scheduled, and they would proceed only through the movement corridors created and demarcated for the purpose., At the designated waiting areas, volunteers may also guide the Advocates on Record and Counsels further, as and when their turn comes for entering the designated courtroom for hearing., Subject to the capacity of any courtroom, the entry of parties in a matter will be permitted not earlier than ten minutes prior to the start of hearing of that matter., The entry into and exit from each courtroom shall be by separate channels or doors., It is noted that wearing of mask, frequent use of hand sanitizer and maintaining physical distancing norms is mandatory for all entrants into the Supreme Court of India premises, including into the Courtrooms., On completion of hearing of their respective cases, the Learned Advocates, Registered Clerks, etc. shall move out of the High Security Zone through the movement corridors and exit from the designated gates., Learned Advocates or Counsels having more than one case for hybrid hearing in the Courtrooms shall be issued separate special hearing passes for each case and after hearing of one case is complete, they may wait in the designated staging or waiting areas for the purpose of appearing for the next hearing., It is reiterated that in order to facilitate video or teleconferencing for the Learned Advocates and Counsels, a dedicated Video Conferencing Facilitation Centre is located in Block C, Ground Floor, Additional Building Complex, Supreme Court of India, which can be accessed through Gate No. 1 of that Complex., It is further reiterated that to facilitate appearance of Learned Advocates and Litigants through video‑conferencing mode, the Supreme Court Video
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Applicant: Bhanwar Singh @ Karamvir; Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Bratendra Singh. Counsel for Opposite Party: Government Advocate. Applicant: Madan Lal Harijaan; Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Satish Sharma. Counsel for Opposite Party: Government Advocate. Applicant: Devendra; Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Ranjeet Asthana, Mohammad Zakir. Counsel for Opposite Party: Government Advocate, Rajnikant Pandey. Applicant: Nasir Alam; Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Sunil Kumar Srivastava. Counsel for Opposite Party: Ashish Pandey, Government Advocate. Honourable Ajay Bhanot, J., The issue that arises for consideration in all connected matters is a recurring theme in the criminal law process in the State of Uttar Pradesh and is arising regularly in bail applications before the High Court. The failure of the police to serve summons and execute coercive processes issued by the High Court and its consequences on the fundamental rights of liberty of an accused and fair administration of the right of bail arise in these cases and have to be addressed squarely. The status reports sent by the learned trial courts reveal that the trials are being delayed as the police authorities did not serve summons and execute coercive measures in a timely manner to compel appearance of the witnesses on the appointed date in the trial. The status reports are made part of the records., The right of bail arises from Section 439 of the Code of Criminal Procedure, 1973. With the coming of the Constitution and development of constitutional law, the statutory domain of bail transformed into constitutional jurisdiction. The right to bail is derived from statute but cannot be removed from constitutional oversight. Good authority has long entrenched the right of an accused to seek bail in the charter of fundamental rights assured by the Constitution of India., Bail jurisprudence was firmly embedded in the constitutional regime of fundamental rights in Gudikanti Narasimhulu and Others v. Public Prosecutor, High Court of Andhra Pradesh. Casting an enduring proposition of law in eloquent speech, Justice V. R. Krishna Iyer held that bail or jail at the pre‑trial or post‑conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the High Court prefers to be tacit, be the order custodial or not. Yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. Personal liberty, deprived when bail is refused, is a precious value recognised under Article 21 of the Constitution of India; the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community., More recently the interplay of constitutional liberty assured under Article 21 and statutory right of bail of an under‑trial prisoner was affirmed by the Supreme Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi). Engagement of fundamental rights in bail jurisprudence is a constant in constitutional law., The High Court, while examining a bail application, has to balance and reconcile diverse objectives, namely, the imperative of constitutional liberties of an accused, the necessity of bringing an offender to fair and speedy justice, and the mandate of upholding the law. Parameters of bail are well settled by judicial precedents and practices. Settled parameters include the nature and gravity of the offences, the likelihood of the accused having committed the offence, the possibility of re‑offending, influencing witnesses, tampering with evidence or being a flight risk., Prolonged incarceration of accused persons due to delay in trials violates the fundamental liberties of the accused guaranteed under Article 21 of the Constitution of India, when the trial is inordinately delayed for no fault of the accused. The right to a speedy trial is a fundamental right flowing from Article 21, as held in Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar. Accordingly, the High Court, while deciding bail applications, also examines the period of internment of an accused and the status of trial, and may issue directions to the trial courts to expedite the trial in order to serve justice., Legal issues which have a direct impact on the liberty of the prisoner and administration of fair justice in bail jurisdiction often arise squarely for consideration in the facts of a bail application. Declining to decide such issues on the footing of a narrow interpretation of bail jurisdiction will amount to abdication of constitutional obligations of the High Court and will result in miscarriage of justice. The High Court in Anil Gaur @ Sonu @ Sonu Tomar v. State of Uttar Pradesh (Criminal Miscellaneous Bail Application No. 16961 of 2022) fortified the constitutional jurisdiction of this Court while sitting in bail determination arising from Section 439 of the Code of Criminal Procedure. While discharging judicial functions in bail determination the High Court is not denuded of its status as a constitutional court and is under a constitutional obligation to address various legal and constitutional issues which impact the grant of bail if they arise in the facts of a case., Chapter VI of the Code of Criminal Procedure, 1973 provides the procedure for compelling appearance of the accused and witnesses to participate in the trial. The provisions contemplate a graduated process of coercive measures: issuance of summons, followed by bailable warrants, then non‑bailable warrants, and finally proclamation and attachment. Summons, bailable warrants and non‑bailable warrants are directed to police officers. The Code imposes a duty on police authorities to serve the summons and execute other coercive measures in a time‑bound manner., Section 61 of the Code of Criminal Procedure vests the power in the courts to issue summons for appearance of witnesses. Section 62 casts the responsibility of service of summons upon police officers, requiring personal service where practicable and a receipt signed by the person served. Section 70 vests the power of issuance of warrants in the courts; a warrant remains in force until cancelled or executed. Sections 72 and 74 direct warrants to police officers, and Section 78 allows forwarding of warrants outside the local jurisdiction to the Superintendent of Police, Commissioner of Police or the concerned Executive Magistrate., Failure of the police authorities to serve summons or execute bailable or non‑bailable warrants is looked askance by the statute and the courts alike. The High Court is duly empowered under the Code to initiate penal proceedings against defaulting police officials for such failure. Non‑compliance constitutes offences affecting the administration of justice, covered in Chapter 26 of the Code of Criminal Procedure and in Section 173 of the Indian Penal Code, which provides punishment for preventing service of summons or other proceedings. Sections 345, 349 and 350 of the Code of Criminal Procedure also apply to government servants who prevent service of summons or neglect to appear before the court., Non‑compliance with orders of a trial court issuing summons or coercive measures directly interferes with the administration of justice and constitutes contempt of court. However, resorting to criminal or contempt proceedings in every such case would lead to multiplicity of litigation and consume precious judicial time, draining scarce police resources from core duties of policing, investigations and statutory duties., Government circulars and General Rules (Criminal) also cover the field of service of summons and responsibility of officials. Circular No. 51/IV‑h‑36 dated 10 March 1977 casts responsibility on the Superintendent of Police and the Inspector General of Police, Uttar Pradesh, to ensure that normal summons are sent through the Superintendent to the Station Officer within three days and that the Station Officer reports compliance to the High Court within fifteen days. Circular No. 65/VIIb‑9 dated 14 June 1979 provides for securing appearance of transferred police officers or officials as witnesses, directing summons to the Superintendent of Police of the district and the Deputy Inspector General of Police. Circular No. 42/98 dated 20 August 1998 states that if police personnel do not comply with court directions, appropriate action under the Contempt of Courts Act shall be initiated. Circular No. 76/Admin. (F) dated 14 December 2007, issued on the recommendations of the High Court, acknowledges that delay in service of summons is a main cause of delay in disposal of criminal cases and sets up summons cells manned by police constables in every district., The existing procedures and departmental accountability system to serve summons and execute coercive measures ordered by the High Court are largely ineffective and have failed to achieve their purpose. The police department must revisit organizational procedures, oversight and responsibility for service of summons and execution of coercive measures. An independent and effective internal accountability system in the police force, co‑existing with provisions in the Code of Criminal Procedure and powers of contempt of court, will facilitate speedy conclusion of trials and obviate possible criminal litigation against police officials., On earlier occasions when confronted with such issues, the High Court issued directions to the Superintendent of Police of the concerned district to ensure that both summons and coercive measures are executed in a time‑bound manner. The operative part of Jitendra v. State of Uttar Pradesh (Criminal Miscellaneous Bail Application No. 9126 of 2023) is reproduced for reference: the Court observed that nomination of a senior official not less than the rank of Superintendent of Police to oversee service of summons and execution of coercive processes proved most efficacious. Failure to do so required the Superintendent to submit personal affidavits disclosing causes of failure and fixing responsibility. The procedure led to prompt service of summons, execution of coercive processes and timely conclusion of trials. A witness tracker program containing updates on the latest appointment and address of the witness was also recommended., Appointment of nodal officers at various levels for compelling appearance of witnesses may be an effective measure, provided the nodal officers are heads of the police at the respective levels and are empowered to coordinate with police forces at district, zone, state or inter‑state levels. The statutory obligation imposed upon police authorities to compel appearance of witnesses on orders of the High Court should be incorporated in the charter of duties of the nodal officers, whose performance will be evaluated on these yardsticks., The magnitude of the problem of absent witnesses and inadequate police response to summons and coercive measures exposes a systemic fault line that threatens the credibility of the justice delivery system. Inability of the police authorities to serve summons and execute coercive measures issued by the learned trial courts in the specified time frame is an endemic problem and a major bottleneck in the criminal law process. This deficiency results in absence of witnesses in courts, interminable delays in trials and erodes public faith in the justice delivery system. Rights of accused to a speedy trial under Article 21 of the Constitution of India are being violated and fair administration of the right of bail is being hampered as a consequence of these failures., The High Court directed the State Government to consider framing rules for an efficacious system of accountability within the police department for timely service of summons and execution of coercive processes issued by the High Court. Failure of the police authorities and neglect of the State Government to acknowledge their statutory duties and constitutional obligations will lead to miscarriage of justice. Prisoners spend long years in jail simply because police authorities do not ensure appearance of witnesses on a timely basis, disproportionately affecting marginalized sections of society., A copy of this order is to be served upon the Director General of Police, Government of Uttar Pradesh; Director General (Prosecution), Government of Uttar Pradesh; Home Secretary, Government of Uttar Pradesh; Legal Remembrancer/Principal Secretary (Law), Government of Uttar Pradesh, Lucknow; and Director, JTRI, Lucknow. By means of the second bail application the applicant has prayed to be enlarged on bail in Case Crime No. 37 of 2014 (S.T. No. 260 of 2014) at Police Station Oncha, District Mainpuri under Sections 147, 148, 149 and 302 of the Indian Penal Code and Section 7 of the Criminal Law Amendment Act. The applicant is on interim bail granted by this Court on 21 July 2023. The arguments made by Shri Bratendra Singh, learned counsel for the applicant, which could not be satisfactorily refuted by Shri Paritosh Kumar Malviya, learned Additional Government Advocate, entitle the applicant for grant of bail: (i) the applicant is a law‑abiding citizen who has always cooperated with investigations and joined trial proceedings; (ii) the trial is progressing at a snail's pace and shows no sign of early conclusion, for which the applicant cannot be faulted; (iii) the status report records that delay is occasioned by failure of police authorities to serve summons and execute coercive measures; (iv) inordinate delay has led to virtually indefinite imprisonment without credible evidence, violating the right to a speedy trial; (v) the applicant has no criminal history apart from this case; (vi) the applicant is not a flight risk and undertakes not to influence witnesses, tamper with evidence or re‑offend. In view of the foregoing discussion, and without making any observations on the merits, the bail application is allowed. The applicant, Bhanwar Singh @ Karamvir, is released on bail in the aforesaid case crime number on the sureties already furnished while being enlarged on interim bail, subject to the conditions that (a) the applicant will not tamper with evidence or influence any witness during the trial, and (b) the applicant will appear before the trial court on the date fixed unless personal presence is exempted. Order dated 24 August 2023, Dhananjai Sharma., Section 345 of the Code of Criminal Procedure, 1973 provides for procedure in certain cases of contempt. When an offence described in sections 175, 178, 179, 180 or 228 of the Indian Penal Code is committed in the view or presence of any civil, criminal or revenue court, the High Court may detain the offender in custody, take cognizance of the offence before the court rises on the same day, give the offender a reasonable opportunity to show cause why he should not be punished, and sentence him to a fine not exceeding two hundred rupees or, in default of payment, to simple imprisonment for a term which may extend to one month. The court shall record the facts constituting the offence, the statement (if any) made by the offender, as well as the finding and sentence. If the offence is under section 228, the record shall show the nature and stage of the judicial proceeding in which the court was interrupted or insulted, and the nature of the interruption or insult. Section 349 provides for imprisonment or committal of a person refusing to answer or produce a document. If a witness or person called to produce a document before a criminal court refuses to answer questions or produce the document after a reasonable opportunity and without a reasonable excuse, the court may, for reasons recorded in writing, sentence him to simple imprisonment or, by warrant, commit him to custody of an officer of the court for a term not exceeding seven days, unless the person consents to be examined or produce the document. Section 350 prescribes a summary procedure for punishment of a witness who, being summoned, neglects or refuses to attend without just excuse. The court, satisfied that summary trial is expedient in the interests of justice, may take cognizance of the offence, give the offender an opportunity to show cause, and sentence him to a fine not exceeding one hundred rupees, following as closely as possible the procedure prescribed for summary trials.
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$6 to 8 + CONT.CAS(C) 224/2016 & CM APPL s. 15444/2017, 34709/2019 & Petitioner Through: Mr. Ashish Dixit, Advocate versus Through: Mr. Anil Soni, Chief Government Solicitor for Union of India; Mr. Anuj Aggarwal, Additional Solicitor General for Government of National Capital Territory of Delhi with Ms. Ayushi Bansal, Mr. Sanyam Suri, Ms. Arshya Singh, Advocates for Respondent 2 + W.P.(CRL) 1549/2009 & CRL.M.A s. 18506/2013, 13869/2014, Through: Mr. Rajeev K Virmani, Senior Advocate (Amicus Curiae) with Ms. Deveshi Madan, Advocate versus Through: Mr. Ajay Digpaul, Chief Government Solicitor with Mr. Kamal Digpaul, Ms. Swati Kwatra, Advocates for Union of India; Mr. Ripudaman Bhardwaj, Special Public Prosecutor for Central Bureau of Investigation with Mr. Kushagra Kumar, Advocate; Mr. Ashish Dixit, Advocate for Delhi Prosecutors Welfare Association; Mr. Naresh Kaushik, Mr. Shubham Dwivedi, Advocates for Union Public Service Commission; Mr. Sumer Singh Boparai, Mr. Sidhant Saraswat, Mr. Prateek Ahuja, Advocates for Intervenors. Signing Date: 16.01.2023 Signature Not Verified. Mr. Vikas Arora, Ms. Radhika Arora, Advocates in CRL.M.A.31954/2019 + W.P.(C) 1091/2013 & CM APPL s. 9415/2014 & 14231/2015 Through: versus Through: Ms. Pragya Barsaiyan, Advocate for Mr. Gautam Narayan, Additional Solicitor General for Mr. Gaurav Agarwal, Advocate for High Court of Delhi; Mr. Dev P Bhardwaj, Chief Government Solicitor for Union of India with Ms. Anubha Bhardwaj, Mr. Sarthak Anand, Advocates., The last affidavit in respect of the vacancies of Public Prosecutors was filed on 14.09.2022. Learned Counsel for Government of National Capital Territory of Delhi has informed High Court of Delhi that a fresh requisition has been sent to Union Public Service Commission for filling up of 108 vacant posts of Public Prosecutors. Let an affidavit be filed positively within two weeks., Learned Counsel for Government of National Capital Territory of Delhi shall serve all the documents to the learned Amicus Curiae before filing the same., Learned Amicus Curiae has pointed out that as many as 108 courts in Delhi are in fact non‑functional for want of Public Prosecutors. Further, it has been brought to the notice of High Court of Delhi by Mr. Ashish Dixit, learned Counsel appearing on behalf of Delhi Prosecutors Welfare Association, that one Public Prosecutor is handling almost three to four courts and that this has brought the entire criminal justice system to a standstill., The criminal justice system is already plagued with a huge backlog of cases which can be remedied only if vacancies of Public Prosecutors are filled up at the earliest. The Government of National Capital Territory of Delhi is the only authority which can fill these vacancies. By way of last indulgence, four weeks time is granted to Government of National Capital Territory of Delhi to expedite the process of filling up vacant posts of Public Prosecutors. Let a fresh Status Report be filed before the next date of hearing., It is made clear that if the Status Report is not filed and proper explanation is not given as to why the vacancies have not been filled up, High Court of Delhi will direct the personal appearance of the Law Secretary and other officers who are responsible for the delay., The Department of Personnel and Training is also granted last opportunity to file reply in the matter as directed by High Court of Delhi, failing which High Court of Delhi will direct the personal appearance of the Secretary, Department of Personnel and Training., List on 14.02.2023.
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The State of Maharashtra Applicant Versus Samir Vishnu Gaikwad Respondent Ms P. P. Shinde, Additional Public Prosecutor for the Applicant-State. Mr. Sanjiv Punalekar for the Respondent. Mr. Somnath Shendge, Assistant Public Prosecutor, Additional Trial Sessions, present., By this application filed under Section 439(2) read with Section 482 of the Criminal Procedure Code, the Applicant-State has sought to cancel the bail granted to the Respondent by the learned Sessions Judge, Kolhapur by order dated 17/06/2017 in Sessions Case No. 3 of 2016., The bail is sought to be cancelled mainly on the ground that the previous two bail applications were rejected on merits by the same court and bail application No. 695 of 2016 was dismissed by the High Court of Bombay by order dated 11/07/2016. Ms. Shinde, learned Additional Public Prosecutor submits that the Applicant is involved in a serious offence of committing murder of Govind Pansare while he was returning from a morning walk along with his wife. She submits that the incident was witnessed by a child witness Atharva, who identified the Respondent‑accused in the Test Identification Parade. Relying upon the statement of this witness, the High Court of Bombay had dismissed the bail application on merits. It is contended that the learned Sessions Judge was not competent to entertain and grant bail when the previous bail application was rejected on merits by the High Court of Bombay and particularly when there was no change in circumstance to entertain the subsequent bail application., Per contra, learned counsel for the Respondent submits that subsequent to the order dated 11/07/2016, the investigating agency filed a supplementary charge‑sheet. The supplementary charge‑sheet indicated that the widow of the deceased had identified the co‑accused as an assailant and, in view of this change in circumstance, the learned Sessions Judge entertained the subsequent bail application., I have perused the records and considered the submissions advanced by the learned counsel for the respective parties., The records prima facie indicate that on 16/02/2015, while the deceased Govind Pansare and his wife Uma Devi were returning from a morning walk, two unknown persons came on a motorcycle and fired bullets on the duo. Pursuant to the FIR lodged by Mukund Dinkar Kadam, C.R. No. 39/2015 was registered at Rajarampuri Police Station, Kolhapur for offences under Section 307 read with Section 34 of the Indian Penal Code and Section 3(25) of the Indian Arms Act. Govind Pansare died on 20/02/2015 as a result of the injuries sustained in the incident. Hence, Section 302 IPC was added., The Respondent was arrested on 16/09/2015. The bail applications filed by the Respondent during the pendency of the investigation as well as after filing of the charge‑sheet were rejected by the learned Additional Sessions Judge, Kolhapur on 28/01/2016 and 23/03/2016. The Respondent thereafter filed the bail application before the High Court of Bombay which was rejected by order dated 11/07/2016 mainly relying upon the statement of the child witness Atharva Shive, who had witnessed the incident and identified the Respondent in the Test Identification Parade., Despite rejection of the bail application by the High Court of Bombay on merits, the Respondent filed a fresh application for bail before the learned Sessions Judge, which was allowed by order dated 23/03/2016. When a higher court has refused to grant bail to an accused on merits, judicial discipline and propriety requires the subordinate court not to entertain a successive application for bail. In this regard, it would be relevant to refer to the decision in Kalyan Chandra Sarkar v. Rajesh Ranjan (Pappu Yadav), 2005 (2) SCC 42, wherein the Supreme Court of India held: \The principles of res judicata and such analogous principles although are not applicable in criminal proceeding, the courts are bound by the doctrine of judicial discipline, having regard to the hierarchical system prevailing in our country. The findings of a higher court or co‑ordinate bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same has been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reiterated on the same grounds, as the same would lead to speculation and uncertainty in the administration of justice and may lead to forum hunting. The decision given by a superior forum is binding on the subordinate fora on the same issue even in bail matters, unless there is a material change in the factual situation warranting a different view. Therefore, even though there is room for filing a subsequent bail application, it can be done only if there is a change in fact or law which requires the earlier view to be interfered with or where the earlier finding has become obsolete.\, In the instant case, the High Court of Bombay having rejected the bail application on merits, the Respondent was required to file the subsequent bail application before the High Court of Bombay and not before the Sessions Court. Judicial propriety required the Sessions Court not to entertain the subsequent application for bail. The course adopted by the learned Sessions Judge in entertaining and granting bail to the Respondent, despite rejection of his earlier application by the High Court of Bombay on merits, amounts to grave indiscretion which impinges upon judicial discipline and propriety., The question which falls for consideration is whether the bail granted to the Respondent should be cancelled at this stage solely on the ground of violation of judicial discipline or propriety by the learned Sessions Judge., As noted above, the High Court of Bombay had rejected the previous bail application mainly on the basis of the statement of the eye witness Atharva Shive. This child witness stated that two persons had come on a motorcycle and that the pillion rider had fired bullets on Govind Pansare. In the Test Identification Parade, he identified the Respondent as the assailant. It is pertinent to note that in the supplementary charge‑sheet filed against the co‑accused Sarang Akolkar, the investigating agency relied upon the statement of Uma Pansare, the widow of the deceased. She stated that the two assailants had come on a motorcycle and one of them fired bullets at them. She was shown photographs in the presence of panchas and, out of about 40 photographs, she identified Vinay Pawar and co‑accused Sarang Akolkar as the persons involved in the incident. This subsequent material brought on record by the prosecution, prima facie raises a doubt about the involvement of the Respondent in the crime., It is also pertinent to note that the Respondent was granted bail in the year 2017. Though the application for cancellation of bail was filed within a short span of time, the matter remained pending before the High Court of Bombay for a considerable period. During the interregnum period, the trial commenced and 19 witnesses were examined. It is stated that the Respondent has not violated the terms and conditions of bail and has not misused his liberty. In such circumstances and particularly in view of the statement of the widow of the deceased, I am not inclined to cancel the bail granted to the Respondent. Hence, the application is dismissed.
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Writ Petition (Madras) No. 18485 of 2023 and Writ Petition (Miscellaneous) Nos. 15322, 17344 and 18152 of 2023 D. Senthilkumar (Petitioner) 1. Government of Tamil Nadu, represented by its Principal Secretary, Department of Tourism, Culture and Religious Endowments, Fort St. George, Chennai-9. 2. The Commissioner, Hindu Religious and Charitable Endowments Department, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai-34. 3. The Executive Officer, Arulmigu Palani Dhandayuthapani Swamy Devasthanam, Palani, Dindigul District. Respondents., Prayer: The writ petition is filed under Article 226 of the Constitution of India, praying the Madras High Court to issue a writ of mandamus directing the respondents to permit Hindus alone to the hill temple premises and its sub‑temples and consequently directing the third respondent to display boards to that effect at all entrances, based on the representation of the petitioner dated 26.06.2023. For petitioner: Mr. N. Anantha Padmanabhan, Senior Counsel, for Mr. R. M. Arun Swaminathan. For respondents 1 and 2: Mr. Veera Kathiravan, Additional Advocate General, assisted by Mr. R. Ragavendran, Government Advocate. For respondent 3: Mr. R. Baranidharan. For intervenor: Mr. Abinav Parthasarathy., The facts as stated by the petitioner are that he runs Shashti Toy Shop at Adivaram Pazhani and is an organiser of Pazhani Hill Temple Devotee Organisation. He visits the temple daily to worship Lord Dhandapani. A few days ago some non‑Hindus purchased tickets at the winch station in Pazhani to reach the temple hilltop. A man named Shahul, who runs a fruit shop near Pazhani Bus Stand, brought his relatives wearing burqas who had bought tickets. When the ticket issuing authority noticed the burqas, the authority retrieved the tickets because they were non‑Hindus. Shahul reportedly argued with the employees at the winch station, saying that this is a tourist place and if non‑Hindus are not allowed, a banner should be put up, offering to provide the banner at his own expense., When news of the incident spread, devotees gathered at the winch station and supported the temple employees. The devotees condemned the third respondent for failing to put up a banner stating that non‑Hindus were not allowed, which had been removed during renovation work for Kumbabishekam of the temple. The third respondent later placed the banners at the entrance but removed them again within a few hours. It was speculated that the temple authorities were under pressure from higher authorities. Social media posts from atheists and Islamists gave credence to the speculation. Recently, a group of Muslims were found consuming non‑vegetarian food inside the Brihadeeswara Temple premises in Thanjavur, another group was caught eating meat in Hampi Temple complex, and a Muslim youngster was arrested after offering namaz in a Hindu temple in Uttar Pradesh., The petitioner submits that Hindu temples are places of worship and their rituals are part of the Karma Kanda of Hindu theology. By analogy, it is well known that near a Muslim mosque no band, music or amusement is allowed so as not to disturb the peace of the mosque, and non‑Muslims are not allowed inside a mosque. These rules of proprietary religious practice are respected by all citizens of India. Similarly, if a Hindu temple is intended for the spiritual benefit of Hindus, the temple complex from the gopuram to the kodimaram, artha‑mandapam, maha‑mandapam and garbha‑graham is to be kept undefiled; non‑Hindus cannot seek entry for pleasure or social evaluation. Such entry would negate the object of the temple, which is to be available to all classes of Hindus., The petitioner further states that every religion lies on the foundation of its ancient beliefs, rituals and practices. Hinduism, whose origin is ancient, has maintained its ethics, practices and mandates through changing times, preserving its pristine usefulness and demanding respect. Worship in temples in a prescribed manner, backed by Agama, is a matter connected with the religion and is equally respectable. In Tamil Nadu, the Temple Administration Laws have evolved as follows: the British introduced the Madras Religious Regulation VII of 1817, bringing temples under government control; in 1840 a directive returned temples to their trustees; in 1922 the Hindu Paripalanam Act was proposed; in 1927 the Hindu Religious and Charitable Endowments Board was constituted; the Madurai Temple Entry Movement of 1939 facilitated entry of oppressed classes; the Temple Entry Authorisation and Indemnity Act, 1939 was enacted; the Temple Entry Authorization Act, 1947 was passed by Omandur P. Ramasamy Reddy; and Rule 4‑A was introduced in the Fort St. George Gazette dated 28.01.1970., One Kalyan Dass of Ramanathapuram filed a petition in Writ Petition No. 3066/1970, which was allowed on 05.07.1972. The Honorable Court quashed the insertion of Section 4(A) and held the amendment ultra vires, stating that the State Government acted beyond the scope of delegated power conferred by the Constitution. The maximum temples are governed by the second respondent, which has affixed caution boards in front of the temples. However, some problem‑makers attempt to enter the temple premises for fame and media attention. The majority of devotees observe fasting and come to Pazhani for darshan. Pazhani Hill Temple is not a picnic spot; the land has rich culture and epic significance. The petitioner submitted a representation to the respondent on 27.06.2023 and received no response. Under section 6(15) of the Hindu Religious and Charitable Endowments Act, the petitioner has the right to file this petition., At the time of admission, this Court granted an interim order of status quo ante with a direction to restore the board. The respondents filed a counter‑petition along with a vacate interim direction petition, stating that the prayer in the main writ petition and the miscellaneous petition are the same and therefore the writ petition is not maintainable. The petitioner’s representation was received on 28.06.2023, even before a decision could be taken on the display of the board. The present writ petition was filed seeking an interim direction in Writ Petition (Miscellaneous) No. 15322 of 2023 to direct the third respondent to affix a display board stating that non‑Hindus are not allowed in the temple premises in all languages at all entrances, pending disposal of the writ petition. The interim direction exceeded the relief sought in the main writ petition. The respondents should have been allowed to express their stand by filing a counter‑affidavit, but this Court, by an order dated 31.07.2023, passed the interim order., The respondents further submitted that the Hill Temple of Arulmigu Dhandapani Swamy, Pazhani, is considered the abode of Lord Murugan and is mentioned in Thirumurugatruppadai (Sangam literature) as the third abode of Lord Murugan among the six Arupadai Veedu. The moolavar is said to have been made of Navapashanam (nine poisonous materials) by a Siddhar named Bohar who lived around 3000 BC. Devotees come from Tamil Nadu, all over India and foreign countries to worship Lord Murugan. Devotees are allowed to reach the hill temple via the Giri Veethi path by winch service, rope car service, footpaths and an elephant path. Only in Tamil Nadu does this temple have a winch service for devotees. Lord Murugan is worshipped not only by Hindus but also by non‑Hindus who have faith in the deity and accept Hindu customs and temple practices. As a secular government, the State Government and the Temple Administration must ensure the rights of citizens enumerated in Articles 25 to 28 of the Constitution of India. The Temple Entry Authorisation Act, 1947 defines the temple premises as the place of religious worship, i.e., the sanctum and sanctorum, where persons of religions other than Hindu are restricted. The winch service station and rope car station are outside the temple premises and do not amount to entry inside the temple premises; therefore placing boards at these stations is unnecessary and has no effect., The respondents state that people of other religions who have faith in Hinduism can enter any temple in Tamil Nadu and worship according to customs and practices. Non‑Hindus, by accepting Hindu customs, may enter the temple and worship the deity. This respondent does not prohibit anyone from entering the temple premises except beyond the kodimaram. Many temples in Tamil Nadu allow persons of other religions to enter the precincts, for example, Arulmigu Meenakshi Sundareswarar Temple, Madurai, which provides entry to foreigners inside the temple for a fee of Rs. 50, restricting them to the kodimaram. Similar practices exist in many temples where tourists are allowed in the precincts except the sanctum sanctorum. In a previous writ petition, Writ Petition (Madras) No. 14081 of 2022, seeking a direction not to permit non‑Hindus to enter the temple premises during the Kumbabishekam festival of Arulmigu Adikesavaperumal Temple, Thirukovil, Thiruvattar, Kanyakumari District, the Honorable Court dismissed the petition, observing that it is impossible to check the religious identity of every devotee during a public festival and that a person of another religion who has faith in a Hindu deity cannot be prevented from entering. The court also noted that foreigners and persons of other faiths are allowed inside Arulmigu Brahadeeswarar Temple, Thanjavur, and that at Arulmigu Ranganathaswamy Temple, Srirangam, there is a shrine for Bibi Nachiyar, said to be the daughter of a Mughal emperor, where the presiding deity is offered roti with butter every morning. Similar instances exist at Arulmigu Sowriraja Perumal Temple, Tirukkannapuram, Nagapattinam District, and Bhuvarahaswamy Temple, Srimushnam, Cuddalore District, where deities are taken in procession and halted before a mosque for prayers and respects., The respondents further submitted that the petitioner’s affidavit mentions an incident where a non‑Hindu family attempted to purchase tickets at the winch station, but the petition does not state the date of the incident, and the representation filed on 26.06.2023 does not mention the incident. Hence there was no immediate requirement to put up the board near the rope car entrance or winch pathway. The allegations are vague and bald. Since the non‑Hindu family was not allowed by the temple staff, there is no cause of action to file the present petition. Installing display boards prohibiting entry of non‑Hindus who have faith in the deity would hurt religious sentiments and run contrary to constitutional rights. Therefore, the interim direction dated 31.07.2023 to install the board should be vacated in the interest of justice and to prevent disharmony. No prejudice would be caused to the first respondent if the direction is vacated and the case is heard after the counter‑affidavit is filed in the main writ petition. The temple has not been allowing non‑Hindus, and even if a person expresses faith in the deity, entry cannot be prevented. The interim direction should be vacated., One T. R. Ramesh filed an impleading petition to implead himself as a respondent, stating that he is the President of Temple Worshippers Society and Indic Collective Trust, both based in Chennai, and has filed many writ petitions concerning Hindu temples, protection of temple funds, properties, traditions and fundamental religious and administrative rights guaranteed under the Constitution of India. He stated that he recently came across an order dated 31.07.2023 by which the Honorable Court issued status quo ante and directed respondents 1 to 3 to restore the board. As an interested party, he filed the present petition. He also filed Writ Petition (Madras) No. 10903 of 2022 challenging a tender notification issued by the temple administration, and the Court held that the Executive Officer functioning as the Fit Person for the temple was illegal under section 75‑B of the Hindu Religious and Charitable Endowments Act. The respondents preferred a writ appeal in Writ Appeal (Madras) No. 860 of 2020, which was disposed of with directions, but the Division Bench declined to grant the respondents’ prayer. He also preferred a public interest litigation in Writ Petition (Madras) No. 16416 of 2020, challenging the appointment of the Executive Officer. The Executive Officer’s existence was challenged as a subterfuge involving an amendment to the Hindu Religious and Charitable Endowments Act, 1959, to circumvent a Supreme Court order reported in AIR 1965 SC 1578. The Principal Bench of this Honorable Court held the related Government Orders unsustainable. The subject temple is a Hindu temple and a non‑Hindu cannot be permitted inside its premises. The issue is protected by the Tamil Nadu Temple Entry Authorisation Act, 1947, and the rules framed thereunder. The matter was raised in Parliament in a debate on Article 15(2) and was negatived. An amendment to the preamble of the Constitution introducing the term secular cannot permit non‑Hindus to enter the premises of the subject temple, which has been reserved for Hindus since antiquity. An order reported in AIR 1973 Madras 264 holds that allowing non‑Hindus inside Hindu temples is against religious tenets. Hence, the impleading petition is allowed., Heard: Mr. N. Anantha Padmanabhan, Senior Counsel assisted by Mr. R. M. Arun Swaminathan, appearing for the writ petitioner; Mr. Veera Kathiravan, Additional Advocate General assisted by Mr. R. Ragavendran, Government Advocate appearing for respondents 1 and 2; Mr. R. Baranidharan appearing for the third respondent; and Mr. T. R. Ramesh treated as intervenor. The contents of the affidavit filed with the impleading petition were also considered., The first contention of the respondents is that the interim prayer and the main prayer are the same, so granting the interim order would amount to allowing the writ petition. When the interim order was granted, the respondents raised the same plea, and after elaborate arguments the Court granted the interim direction to maintain status quo ante. The Court noted that the board had been exhibited earlier, removed during the recent Kumbabishekam festival, and not reinstalled after the festival. After the alleged incident the board was reinstalled but removed within a few hours. Even though the prayers are the same, the direction was issued to restore the earlier practice and would not prejudice the respondents; therefore, this plea is rejected., The next contention of the respondents is that the petitioner’s representation dated 26.06.2023 did not state the incident mentioned in the writ affidavit. On perusing the representation, it is seen that the petitioner stated in the last paragraph that two days before some persons belonging to another religion had tried to board the winch to go to the temple. Therefore, the respondents’ plea is incorrect., The petitioner contends that the Tamil Nadu Temple Entry Authorisation Act, 1947 was enacted to authorize entry in Hindu temples in the State of Tamil Nadu for all classes of Hindus and that non‑Hindus cannot be permitted. To consider this plea, the definition of temple under the Hindu Religious and Charitable Endowments Act and under the Temple Entry Act is necessary. Under the Hindu Religious and Charitable Endowments Act, section 2(20) defines a temple as a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, the Hindu community or any section thereof. Under the Temple Entry Act, section 2(1) defines a temple similarly and includes subsidiary shrines and mandapams attached to such place. Both definitions categorically state that the right belongs to the Hindu community., Section 10 of the Hindu Religious and Charitable Endowments Act states that the Commissioner, Additional Commissioner, Joint, Deputy or Assistant Commissioners and every other officer or servant appointed to carry out the purpose of the Act shall be persons professing the Hindu religion and shall cease to hold office when they cease to profess that religion. Section 24 of the same Act provides power to enter religious institutions. Sub‑clause (4) expressly states that nothing in this section shall authorize any person who is not a Hindu to enter the premises or any part thereof. Sub‑clause (5) provides that any question as to whether religious practice prohibits entry shall be referred to the Commissioner, whose decision may be appealed to the Government within one month., Section 3 of the Temple Entry Act also states that entry is allowed only to Hindus. It declares the right of all classes of Hindus to enter and offer worship in temples, including the right to bathe in sacred tanks and to pass over sacred places such as hills or pathways required for access to the temple. The Rules under the Tamil Nadu Temple Entry Authorisation Act, published in Government Order No. 164 Firka Development dated 23.03.1948, specifically state in Rule 3 that non‑Hindus are not allowed.
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The classes of persons mentioned hereunder shall not be entitled to enter or offer worship in a temple or bathe in or use the waters of any sacred tank, well, spring or water‑course appurtenant to the temple, whether situated within or outside the precincts thereof, or any sacred place including a hill or hillock or a road, street or pathway which is requisite for obtaining access to the temple. Persons who are not Hindus, persons under pollution arising out of birth or death in their families, women at times when they are not by custom and usage allowed to enter temples, drunken or disorderly persons, persons suffering from any loathsome or contagious disease, persons of unsound mind except when taken for worship under proper control and with the permission of the Executive Authority of the temple concerned, and professional beggars are excluded., From the above provisions it is evident that when Hindus were not allowed inside the temple, in order to eradicate differentiation among all classes of Hindus, the Temple Entry Act and Rules were enacted permitting all Hindus to enter the temples. While enacting the same the Legislature was aware of the confusion that would create and had cautiously stated that non‑Hindus are not allowed. Hence the Legislature stated that Hindus are allowed and at the same time prohibited non‑Hindus from entering the temple. Under section 3 of the Temple Entry Act it is stated: ‘Right of all classes of Hindus to enter and offer worship in temples.’ Under Rule 3(a) of the Rules it is specifically stated that non‑Hindus are not permitted to enter temples. The Act and Rules make it clear that all classes of Hindus are allowed and non‑Hindus are not allowed., Section 10 of the Hindu Religious and Charitable Endowments Act provides that the Commissioners, Joint Commissioners etc., shall be persons professing the Hindu religion and shall cease to hold office as such when they cease to profess that religion. Section 24 of the same Act states that non‑Hindus are not permitted to enter the temple. In short both the Hindu Religious and Charitable Endowments Act and the Temple Entry Act allow all Hindus to enter the temple and also state that non‑Hindus are not allowed inside the temples. In such circumstances the respondents are bound to implement the Act and Rules in letter and spirit., The position is further clear when the Government amended the Temple Entry Rules and inserted Rule 4‑A to take away the prohibition of not allowing non‑Hindus, but the said Rule was struck down by the Honourable Supreme Court of India. Rule 4‑A read: ‘Persons who are not Hindus shall be admitted into temples provided: (i) they are admitted only during the time when pooja is not performed; (ii) they are permitted to enter into Mahamandapam and not to the Arthamandapam; (iii) they inform the temple authorities of the object of their visit, obtain a pass and enter into the temple with a temple guide or, if there is no guide, a servant of the temple; (iv) they abide by the customs and usage prevailing in the temple; (v) they safeguard the general and special sanctity and honour of the temple; (vi) they do not take photographs of any part of the temple without the permission of the appropriate authority.’ The Rule was challenged in Kalyan Dass v. State of Tamil Nadu (1972 2 MLJ 581, AIR 1973 Mad 264) and the Honourable Supreme Court struck down the amendment., The Court observed that the doctrine of exclusion has suffered various inroads due to the march of law and advanced socialistic principles. The Constitution itself has abolished untouchability in all forms. Prior to the enactment of the Malabar Temple Entry Act and the present Temple Entry Act, a social evil excluded certain classes of Hindus from enjoying privileges such as entry into temples. The ban was removed by legislation, but it was lifted only for a part of the Hindu community and not for non‑Hindus. The Supreme Court in AIR 1954 SC 282 considered the vires of Section 21 of the Madras Hindu Religious and Charitable Endowments Act (Act 19 of 1951), which empowered the Commissioner and his officers to enter the premises of any religious institution for exercising powers conferred by the Act., The Court held that there could be no unregulated and unrestricted right of entry in a public temple for persons not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow outsiders access to the particularly sacred parts of a temple, such as the sanctum where the deity is located. Fixed hours of worship and rest for the idol are observed, and Section 21 does not confer a right of entry to the inner sanctuary, the ‘Holy of Holies’, whose sanctity is zealously preserved. The Court further held that the provision interferes with the fundamental rights of the head of the institution guaranteed under Articles 25 and 26 of the Constitution. In AIR 1958 SC 255 the Court reiterated the principle, distinguishing between exclusion of persons from temples open for the Hindu public on the ground of caste (which would be hit by Article 17) and exclusion of persons from denominational temples on the ground that they are not objects within the benefit of the foundation (which is protected by Article 26)., The Honourable Supreme Court, in the amendment of the Hindu Religious and Charitable Endowments Act, 1951, declared many provisions unconstitutional. It held that there could be no unrestricted right of entry in a public temple for persons not connected with Hindu deities, ceremonies and spiritual functions, and therefore restrictions on non‑Hindus entering Hindu places of worship are permissible. Similar restrictions on non‑Christians entering churches and non‑Muslims entering mosques would not violate Article 15 and would ensure communal harmony and peace in society., The learned Additional Advocate General for the respondents submitted that under Articles 13 and 15 of the Constitution of India, especially clause 15(1), the rights of other persons are protected. The petitioner refuted this objection, submitting that under Article 15(2) temples are not included because temples cannot be used as picnic spots. The intervenor stated that during the Constituent Assembly debates several amendment proposals (Nos. 293 to 301, 304 to 308) sought to include places such as temples within the ambit of Article 15, but all were negatived. Consequently, this Court is of the considered opinion that temples are not covered under Article 15, and the restriction on non‑Hindus is constitutionally valid., The respondents argued that devotees, including Hindus from Tamil Nadu, other Indian states and foreign countries, as well as non‑Hindus who have faith in the deity and accept Hindu customs, should be allowed to worship Lord Murugan. The petitioner's position is that non‑Hindus should not be allowed entry, and the respondents' counter‑argument also states that non‑Hindus cannot be allowed. The petitioner's submission cites the Tamil Nadu Temple Entry Authorisation Act, 1947, defining a temple as a place dedicated to the benefit of the Hindu community and used for public religious worship, and limiting entry to the sanctum for persons of other religions. The respondents contend that foreigners are allowed to admire architectural monuments outside the Kodimaram but not to enter the sanctum, and that a system of undertaking is followed whereby a non‑Hindu who wishes to visit the temple signs an undertaking affirming faith in the deity and agreement to observe temple customs., The Court directed that Boards indicating that non‑Hindus are not allowed inside the temple after the Kodimaram be installed at the entrance, near the Kodimaram and at prominent places in all Hindu temples. Non‑Hindus who do not believe in the Hindu religion shall not be allowed. If a non‑Hindu claims to visit a particular deity, the temple authorities shall obtain an undertaking that the person has faith in the deity and will follow Hindu customs and temple practices; such undertaking shall be entered in a register maintained by the temple. The respondents shall maintain the temple premises by strictly following the Agamas, customs and practices of the temple. The writ petition is allowed with these directions and no costs. Consequently, connected miscellaneous petitions are closed.
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801 of 2020\n\nPetitioner: Nageshwar Mishra\n\nRespondents: Union of India and two others\n\nCounsel for Petitioner: Shailesh Kumar Tripathi\n\nCounsel for Respondents: Additional Solicitor General of India, Arvind Agrawal; Honourable Shashi Kant Gupta, Judge; Honourable Shamim Ahmed, Judge., The present writ petition in the form of Public Interest Litigation has been filed inter alia for the following relief: issue a writ, order or direction in the nature of Mandamus commanding the respondent authorities to deprive the Indian citizenship of Kanhaiya Kumar (Respondent No. 3)., The allegations have been made in the petition against Respondent No. 3, Kanhaiya Kumar, a former President of the Students Union of Jawaharlal Nehru University, Delhi for allegedly raising anti‑national slogans during an event that took place on the JNU campus on 9 February 2016. Following the incident Kanhaiya Kumar and others are facing trial after receiving nod for prosecuting them in a sedition case., Learned counsel for the petitioner stated that despite the anti‑national slogans raised by Respondent No. 3, Kanhaiya Kumar, the Government of India is not taking any action to terminate his Indian citizenship. It has been further averred in the writ petition that Kanhaiya Kumar and his associates are supporting the freedom struggle of terrorist groups working on the instigation of Pakistan to destabilise the unity and disturb the peace and tranquillity of our country. It has been further averred that a criminal case has been instituted by lodging a First Information Report (Number 110 of 2016) under Sections 124‑A, 323, 143, 149 and 120B of the Indian Penal Code against Kanhaiya Kumar and his associates for raising anti‑national slogans. It has been further stated that, keeping in view the anti‑national activities, Respondent No. 3, Kanhaiya Kumar be deprived of citizenship under Clause (2) of Section 10 of the Indian Citizenship Act, 1955., Heard Sri Shailesh Kumar Tripathi, learned counsel for the petitioner, and Sri Arvind Agrawal, learned counsel representing the Union of India, Respondent No. 1, and perused the record., From the perusal of the record, it appears that the learned counsel for the petitioner, before filing the present writ petition, has neither gone through the provisions of the Constitution of India nor the Indian Citizenship Act, 1955. It will be appropriate, at this stage, to quote Sub‑clauses (1) and (2) of Section 10 of the Indian Citizenship Act, 1955 which are as follows:, \10. Deprivation of citizenship.\n(1) A citizen of India who is such by naturalisation or by virtue only of clause (c) of Article 5 of the Constitution or by registration otherwise than under clause (b)(ii) of Article 6 of the Constitution or clause (a) of sub‑section (1) of Section 5 of this Act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the Central Government under this section.\n(2) Subject to the provisions of this section, the Central Government may, by order, deprive any such citizen of Indian citizenship, if it is satisfied that (a) the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact; or (b) that citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established; or (c) that citizen has, during any war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business that was to his knowledge carried on in such manner as to assist an enemy in that war; or (e) that citizen has been ordinarily resident out of India for a continuous period of seven years, and during that period, has neither been at any time a student of any educational institution in a country outside India nor in the service of a Government in India or of an international organisation of which India is a member, nor registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India.\n(3) The Central Government shall not deprive a person of citizenship under this section unless it is satisfied that it is not conducive to the public good that the person should continue to be a citizen of India.\n(4) Before making an order under this section, the Central Government shall give the person against whom the order is proposed to be made notice in writing informing him of the ground on which it is proposed to be made and, if the order is proposed to be made on any of the grounds specified in sub‑section (2) other than clause (e) thereof, of his right, upon making application therefor in the prescribed manner, to have his case referred to a committee of inquiry under this section.\n(5) If the order is proposed to be made against a person on any of the grounds specified in sub‑section (2) other than clause (e) thereof and that person so applies in the prescribed manner, the Central Government shall, and in any other case it may, refer the case to a Committee of Inquiry consisting of a chairman (being a person who has for at least ten years held a judicial office) and two other members appointed by the Central Government in this behalf.\n(6) The Committee of Inquiry shall, on such reference, hold the inquiry in such manner as may be prescribed and submit its report to the Central Government; and the Central Government shall ordinarily be guided by such report in making an order under this section.\, A bare reading of Section 10 of the Indian Citizenship Act, 1955 and the relevant provisions i.e. Articles 5 to 11 of the Constitution of India contained in Part II of the Constitution dealing with citizenship clearly indicates that the provision for depriving citizenship can be invoked only against those persons who have become citizens of India by naturalisation or by virtue only of clause (c) of Article 5 of the Constitution or by registration otherwise than under clause (b)(ii) of Article 6 of the Constitution or clause (a) of sub‑section (1) of Section 5 of this Act. Such persons shall cease to be citizens of India if they are deprived of their citizenship by an order of the Central Government under this section., In the present case, admittedly, Respondent No. 3, Kanhaiya Kumar, was born in the territory of India; as such, by virtue of Article 5(a) of the Constitution of India, he is a citizen of India. For ready reference, Article 5 of the Constitution of India is quoted hereinbelow:, \5. Citizenship at the commencement of the Constitution: At the commencement of this Constitution every person who has his domicile in the territory of India and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India.\, Thus, in view of the above, Respondent No. 3 cannot be deprived of his citizenship, as he has not become a citizen of India by naturalisation or by virtue only of clause (c) of Article 5 of the Constitution or by registration as provided under sub‑section (1) of Section 10. Therefore, the powers under sub‑section (2) of Section 10 cannot be invoked against him, since they are expressly subject to the provisions of Section 10 and can only be invoked for such citizens as provided for under sub‑section (1) of Section 10. Consequently, the petition is completely devoid of merit and is wholly misconceived., In any view of the matter, the question of deprivation of citizenship cannot arise merely because Respondent No. 3 is facing trial before the Allahabad High Court in Delhi on charges of allegedly raising inflammatory slogans. Also, under the present proceedings we are not competent to express any opinion with regard to the merit of the criminal case pending against Respondent No. 3. It must be noted that deprivation of citizenship is a serious aspect as it would affect a person's right to live in India and may also result in making the person stateless., It appears that the present writ petition, filed under the garb of public interest litigation, has been preferred with the sole motive of gaining cheap publicity, without even going through the relevant provisions of the Constitution of India and the Indian Citizenship Act, 1955. As such, valuable time of the Allahabad High Court, which is functioning in its limited strength during the period of the pandemic, has been wasted by filing the present writ petition. The intention of the petitioner, in our opinion, is not to espouse the interest of the public but only of his own self, by gaining publicity. Such conduct is highly condemnable. The present public interest litigation is wholly frivolous and an abuse of the process of law. Therefore, we deem it fit to impose heavy cost., In view of the above, we dismiss the present public interest litigation imposing a cost of Rupees Twenty‑Five Thousand Only on the petitioner. The petitioner is directed to deposit the said cost of Rupees Twenty‑Five Thousand by way of Bank Draft in favour of the Registrar General, Allahabad High Court within a period of 30 days from today., The amount so deposited with the Registrar General, Allahabad High Court shall be remitted to the Advocate Association, Allahabad High Court., In case of default in depositing the said money within the stipulated period, the same shall be recovered from the petitioner as arrears of land revenue by the District Collector, Varanasi., Let a copy of this order be placed before the Registrar General of the Allahabad High Court to ensure necessary compliance of this order., A copy of this order may also be sent to the District Collector, Varanasi for necessary follow‑up action.
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The Royal Western India Turf Club Ltd., a company limited by guarantee and deemed to be incorporated under the Companies Act, 1956, having its registered office at Race Course, Mahalaxmi, Mumbai 400034, and N.H.S. Mani of Mumbai, Indian Inhabitant, the Administrative Officer of The Royal Western India Turf Club Ltd., having his office at Race Course, Mahalaxmi, Mumbai 400034, are petitioners. The respondents are: 1. The State of Maharashtra; 2. The Secretary, Revenue and Forest Department, State of Maharashtra, having his office at Mantralaya, Mumbai 400032; 3. Mr. Madhav Kale, Desk Officer, Revenue and Forests Department, Government of Maharashtra, having his office at Mantralaya, Mumbai 400032; 4. The Collector of Mumbai, having his office at Old Custom House, Shahid Bhagat Singh Road, Fort, Mumbai 400001; 5. The Collector of Pune, having his office at Camp 6, Arjun Marg, Pune; 6. The Administrator and Commissioner, Konkan Division, Mumbai, having his office at Old Secretariat Building (Annexe) First Floor, Mumbai 400032., Petitioner No.1 (hereinafter referred to as the petitioner) conducts horse races in Mumbai and Pune under the licence granted to it by respondent No.1, the State of Maharashtra, under the Bombay Race Course Licensing Act, 1912. The petitioner is a members’ club only, but it permits members as well as non‑members of the general public to attend races held at its race courses on payment of entrance or admission fees. On such entrance fees the petitioner collects entertainment duty and pays the same to the respondents under the provisions of the Bombay Entertainments Duty Act, 1923. By the year 2002, mobile phones had become a common means of communication and an indispensable extension of the office for professionals and businessmen. For several years the petitioner did not allow the use of mobile phones at the race course during race days and off‑course racing. However, due to repeated requests from members and non‑members attending the races, the petitioner decided to permit the use of mobile phones at the race course. To restrict the nuisance caused by mobile phone usage during the races, the petitioner levied a charge of Rs 1,000, later increased to Rs 1,200, for those who wanted to take their mobile phones inside the course during the races or for off‑course racing. Those who wanted to take a mobile phone had to pay this charge in addition to the entrance fee. Persons who did not have or did not wish to carry a mobile phone paid only the entrance fee. Therefore, as submitted by Mr. Shyam Mehta, it was not a mandatory condition for anyone to enter the race course or off‑course racing on race days., Sometime in February 2001, enquiries were made to the petitioner by various quarters of the State on the use of mobile phones during the races, primarily to investigate illegal betting which would result in loss of revenue to the State. The petitioner replied to the notices received; that was a separate issue., On or about 02 January 2002, the petitioner received a copy of a Government Resolution (G.R. No. BET‑2001/P.K.23/T‑1 dated 27 December 2001) informing it that the State had decided to levy entertainment duty on the use of mobile phones at the race courses and off‑course betting centres at 50 % under section 3(1)(a) and surcharge under section 3AA on all sums charged for the use of mobile phones, with effect from 21 January 2001. The petitioner was directed to pay the amounts to the Collector of Mumbai (respondent No.4). Despite the petitioner’s show‑cause reply as to why such entertainment duty on mobile‑phone charges should not be levied, the petitioner received a communication dated 22 February 2002 from respondent No.4 demanding an aggregate sum of Rs 1,31,98,902 as entertainment tax and surcharge for the period 21 January 2001 to 31 January 2002. The petitioner filed a reply to the show‑cause/demand notice and attended a personal hearing before respondent No.4. Respondent No.4 passed orders dated 2 March 2002 and 22 March 2002 rejecting the petitioner’s submissions and calling upon the petitioner to pay the total sum of Rs 1,31,98,902 towards entertainment tax and surcharge under section 3(1)(a) of the Act., Aggrieved by this order, the petitioner filed an appeal under section 10(A) of the Act before the Commissioner of Konkan Division, who is respondent No.6. The appeal was dismissed by an order dated 19 September 2002, which order is primarily impugned in this petition. In that order, the basis for the government’s decision to levy and collect entertainment tax on mobile‑phone charges collected by the petitioner from patrons who wanted to carry a mobile phone inside the race course was that the Government of Maharashtra had issued a resolution dated 27 December 2001 wherein it was decided that the charges collected for carrying a mobile phone into the race course during a race are to be treated as payment for admission as defined in section 2(b)(iv) of the Act and that entertainment duty should be levied in accordance with the provisions of section 3(1)(a) of the Act., When subsequent demands were made, the petitioner approached the Bombay High Court. The Court issued an interim order on 5 December 2002 granting the petitioner time to deposit the arrears of entertainment duty, subject to which no coercive steps were to be taken. Pursuant thereto, the petitioner deposited the entertainment duty demanded by the respondents. Mr. Shyam Mehta submitted that if the petitioner succeeds in this petition, the amount deposited should be refunded with interest. He stated that for the period after 31 January 2002, the petitioner will not seek refund as the entertainment duty had been collected from the patrons and the petitioner would not be able to return the amount to them, which would amount to unjust enrichment. However, for the period 21 January 2001 to 31 January 2002, the amount had not been collected from the patrons and the petitioner had paid it from its own pocket, so a refund will be claimed., Mr. Shyam Mehta, for the petitioner, primarily raises the following grounds of challenge: (i) Carrying mobile phones during races does not amount to entertainment within section 2(a) of the Act nor is it connected with an entertainment within section 2(b)(iv); therefore the charges do not fulfil the definition of payment for admission and section 3, which levies duty on payments for admission, is not attracted. (ii) Carrying mobile phones during the races has no connection per se with horse racing, which is the entertainment in question. (iii) Carrying a mobile phone to the horse race upon payment of the charge is not mandatory; members may attend the race without their mobile phones, making the levy illegal and ultra vires the Act. (iv) Levy of duty by way of a Government Resolution violates Article 265 of the Constitution of India because a Government Resolution does not satisfy the test of authority of law; consequently the levy falls foul of Articles 265 read with Article 14. (v) The respondents have sought to levy entertainment duty for the period commencing 21 January 2001, which is prior to the date of the Government Resolution dated 27 December 2001, amounting to a retrospective levy impermissible under the Constitution absent express authority of law. Such retrospective action is arbitrary, unfair and unreasonable and contravenes Article 14., Mr. Himanshu B. Takke, Additional Government Pleader for the respondents, reiterated the State’s position. He submitted that betting at the race course is certainly an entertainment because clause (a) of sub‑section (1) of section 3 of the Act provides for a rate of entertainment duty for admission to a race course licensed under the Bombay Race Courses Licensing Act, 1912. Hence, there can be no doubt that the race course is a place of entertainment or is connected with entertainment. He further submitted that since anyone carrying a mobile phone has to pay a separate charge, such payment should be treated as a condition of attending the entertainment. Accordingly, the condition is satisfied for persons who wish to carry their mobile phone inside the race course; they are obliged to make the payment in addition to the entry fee. Thus, all conditions of sub‑clause (iv) of clause (b) of section 2 of the Act are satisfied and there is no merit in the petition., The questions that arise for determination in this writ petition are: (a) Whether the payment made by a person carrying a mobile phone inside the race course can be called a payment connected with an entertainment? (b) Whether such a payment was a condition of attending or continuing to attend the entertainment? (c) Whether levy of entertainment duty under the Government Resolution dated 27 December 2001 would be violative of Article 265 of the Constitution of India? (d) If the answer to (c) is negative, whether the respondents could levy entertainment duty at all under the same Government Resolution for the period commencing prior to the date of the resolution, i.e., from 21 January 2001? (e) Whether entertainment tax is payable on such amount by the petitioner?, Section 3(1) (before the Mah. 13 of 2011 amendment) reads: ‘There shall be levied and paid to the State Government on all payments for admission to any entertainment (except in the case of video games, exhibition by means of any type of antenna or cable television, or Internet Protocol Television, or exhibition by means of Direct‑to‑Home broadcasting service, bowling alley, go‑carting, dance bar, permit‑room or beer bar with live orchestra, pub, discotheque, amusement park, water‑sports activity, pool game, or tourist bus with video facility) a duty (hereinafter referred to as entertainment duty) at the rates prescribed.’, Section 2(a) defines ‘entertainment’ as any exhibition, performance, amusement, game or sport to which persons are admitted for payment. Section 2(b) defines ‘payment for admission’ to include, inter alia, (iv) any payment, by whatever name called, for any purpose whatsoever, connected with an entertainment, which a person is required to make as a condition of attending or continuing to attend the entertainment, either in addition to the payment, if any, for admission to the entertainment or without any such payment for admission., Therefore, Section 3 provides that duty is levied on all payments for admission to any entertainment. The petitioner does not dispute that attending race courses is an entertainment. However, the petitioner disputes that taking a mobile phone inside the race course is connected with the entertainment and that the charge is a condition of attendance. The charge is not payable by everyone; only those who wish to carry a mobile phone pay it, while others may attend without paying it. Consequently, the charge does not satisfy the definition of payment for admission under sub‑clause (iv) of clause (b) of section 2., It is difficult to comprehend what entertainment a person obtains by taking his mobile phone into the race course. The charge is for the privilege of carrying the phone, not for admission to the place where the entertainment is held. Since the payment is not compulsory for all entrants, it cannot be said to be a necessary condition for attending the entertainment., Mr. Mehta submitted that in the case of Delhi Race Club Ltd. v. Government of NCT of Delhi, the Delhi High Court held that entertainment duty was payable. The petitioner respectfully disagrees with that view., In our view, ‘payment for admission’ must be read as a whole composite definition and each part must be satisfied to levy entertainment tax. The charge for carrying a mobile phone is in addition to the entry fee and is not a condition uniformly applicable to all persons entering the race course. Hence, the amount paid for the mobile‑phone charge cannot be subjected to entertainment tax at the rates prescribed under the Act., We find support for this view in the judgment of the Gujarat High Court in Ramanlal B. Jariwala v. District Magistrate, Surat and another, and in the Madras High Court in PVR Ltd. v. Commercial Tax Officer. Paragraph 4 of Ramanlal B. Jariwala reads: ‘We have heard the learned advocates of the parties on this question. In our view, the submission made by the petitioner is well justified and has to be accepted… The short question is whether such payment, which the petitioner collects from the cinegoer, can be brought within the network of the Act… Section 3(1) provides that for attracting charge to tax, payment should be levied by the entertainer for admission to entertainment. It is also obvious that tax cannot be levied for payment for admission to any other facility which does not amount to entertainment…’, Paragraphs 23 and 24 of PVR Ltd. v. Commercial Tax Officer state: ‘The test for levy of Entertainment Tax is the entry into the entertainment and payment for that purpose. Entertainment Tax was a State subject and, before its subsumption into GST on 1 July 2017, it was the payment for admission as defined in the Tamil Nadu Entertainment Tax Act, 1939, that attracted tax. The payment made for any other purpose connected with such entertainment will be taxable only if the person concerned is required to make such payment as a condition for entry. Obviously, online booking charges or internet handling charges are not mandatory payments for gaining entry into the cinema hall.’
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Therefore, there is considerable force in the submission made by Mr. Easwar, learned Senior Counsel appearing on behalf of the assessee. Unless such internet charges or online booking charges are uniformly charged to all customers for having entry into the cinema hall, such extra service charges taken by the cinema owner to the extent of Rupees 30 per ticket could not be made the subject matter of Entertainment Tax. Even though such payment along with the cost of ticket at the rate of Rupees 190.78 in the particular illustration was part of the overall cost to the customer, the test is attending the entertainment or continuing to attend the entertainment. The mandatory requirement to fall within Section 3(7)(c) of the Entertainment Tax Act is that a person is required to make, as a condition to attend or continue to attend the entertainment, a payment. There is no doubt that booking of a cinema ticket on an online basis is not a mandatory condition for all cinema goers, and this is not only optional but altogether a separate facility provided on the web portal of the cinema hall owners. Therefore, the words in clause 3(7)(c) of the Act, any payment for any purpose whatsoever connected with an entertainment, in addition to the payment for admission to entertainment, must be read in conjunction and not without the context of the words that a person is required mandatorily to make as a condition of attending or continuing to attend the entertainment. These words are not superfluous or without meaning and in fact provide the bedrock condition for applying Section 3(7)(c) of the Act. Unless such a conditional payment for any purpose is integrally connected with the entertainment, is uniformly and mandatorily chargeable from all who want entry to the cinema hall, Section 3(7)(c) cannot cover such payment made by the customer for availing the facility of online booking of tickets., Thus, on the scheme of the relevant provisions of the Act, the conclusion can be arrived at that charging of the amount per person who carried a mobile phone into the race course is not a payment received for admission to any entertainment. We find support for this view also in Markand Saroop Aggarwal and others versus M. M. Bajaj and others., On the submissions of the petitioner that levy of duty by a Government Regulation is violative of Article 265 of the Constitution of India, it is settled law as held by the Apex Court in Co-operative Sugars (Chittur) Limited versus State of Tamil Nadu that tax can be levied only by a statutory provision and not by a Government order. On this ground also the demand of levy has to go., In view of the above, the questions that arose for determination are answered accordingly: (a) and (b) negative; (c) affirmative; (d) does not arise; (e) negative. Therefore, we direct the respondents to refund the amount deposited by the petitioner during the pendency of the petition towards this entertainment duty levied on mobile phones for the period 21st January 2001 to 31st January 2002 together with interest thereon at six per cent per annum as per Rule 5 of Bombay Entertainment Duty Rules 1958 within eight weeks of receiving an application for refund from the petitioner. The refund will be of all amounts paid by the petitioner under every head and interest will be payable on all amounts including interest that the petitioner has paid since we have concluded that no entertainment duty was payable at all by the petitioner. The refund application shall be made to the Secretary, Revenue Department, Government of Maharashtra, who shall ensure strict compliance with the directions given above., All to act on an authenticated copy of this order and the Revenue Secretary shall not insist on a certified copy.
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Criminal Miscellaneous Bail Application No. 50808 of 2022 is filed by the applicant Raheem against the State of Uttar Pradesh. Counsel for the applicant is Dileep Singh Yadav and counsel for the opposite party is Government Advocate Honourable Surendra Singh I, J. A copy of the order dated 15 September 2022 relating to co‑accused Aasif, passed by another coordinate bench of the Honorable High Court of Uttar Pradesh, was produced by the learned counsel for the applicant and is taken on record., The bail application is filed on behalf of Raheem with a prayer for release on bail in Case Crime No. 188 of 2022, under Sections 153, 153A, 295, 295A, 120‑B, 34 of the Indian Penal Code, and Sections 3, 5, 8 of the Uttar Pradesh Prevention of Cow Slaughter Act, Police Station Talgram, District Kannauj, during the pendency of trial. The first information report dated 16 July 2022, lodged by informant Ram Prakash, Sub‑Inspector, alleges that on that date, while conducting routine vehicle checks at the village of Rasulabad Tiraha, some persons reported that an unknown individual had placed the remains of a dead cow in the Shiv temple situated near the tiraha to hurt public religious sentiments. The persons present informed that the temple was washed after removal of the animal remains., The applicant submits that he is innocent and has been falsely implicated. He was neither named in the first information report nor arrested at the spot. According to the information furnished by the informer, the police party of the concerned police station on 17 July 2022 arrested five accused persons, including the applicant Raheem, allegedly on the basis of their pointing out. Equipment used for slaughtering the cow, namely a gandasa and a wooden plank, was recovered. Co‑accused Aasif and Iliyaas have already been released on bail by coordinate benches of this Court by orders dated 15 September 2022 and 8 September 2022 respectively, in Criminal Miscellaneous Bail Applications Nos. 35222 of 2022 and 35858 of 2022. The applicant has been languishing in jail since 17 July 2022 and has no criminal history. He assures that if released on bail, he will not misuse the liberty., The Additional Government Advocate opposes the bail prayer, contending that the innocence of the applicant cannot be adjudged at the pre‑trial stage and therefore he does not deserve any indulgence, although he does not deny the submissions made on behalf of the applicant., Considering the material and evidence placed on record, the submissions of counsel, the nature of the allegations, the gravity of the offence, the larger mandate of Article 21 of the Constitution of India, and the dictum of the Apex Court in Dataram Singh v. State of Uttar Pradesh and another (2018) 3 SCC 22, the Honorable High Court of Uttar Pradesh directs that the applicant be released on bail upon furnishing a personal bond and two sureties each of equal amount to the satisfaction of the court, subject to the following conditions: The applicant shall not tamper with prosecution evidence by intimidating or pressurising witnesses during investigation or trial. The applicant shall cooperate in the trial sincerely without seeking any adjournment. The applicant shall not indulge in any criminal activity or commission any crime after being released on bail. The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel; in case of absence without sufficient cause, the trial court may proceed against him under Section 229‑A of the Indian Penal Code. If the applicant misuses the liberty of bail, a proclamation under Section 82 of the Criminal Procedure Code shall be issued, and if he fails to appear on the date fixed in such proclamation, the trial court shall initiate proceedings against him under Section 174‑A of the Indian Penal Code. The applicant shall be present in person before the trial court on the dates fixed for opening of the case, framing of charge, and recording of statement under Section 313 of the Criminal Procedure Code; if such default is deliberate or without sufficient cause, the trial court may treat it as abuse of bail liberty and proceed against him in accordance with law. Breach of any of the above conditions shall be a ground for cancellation of bail.
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Kasturi Sushma Khandekar, Petitioner; State of Maharashtra and Others, Respondents; Mr. Makrand Kale as well as Mr. S.R. Ghanavat for the Petitioner; Mr. N.C. Walimbe, Additional Government Pleader for the Respondent – State. Oral Judgment (Per Justice Sunil Shukre)., Heard the learned counsel for the parties. The rule is made returnable forthwith. The matter is taken up for final disposal by consent of the parties., The main issue involved in this petition is which of the two social statuses, that of the father or that of the mother, could be claimed by the petitioner. The answer depends upon the evidence regarding the manner in which and by whom the petitioner has been reared., In the present case, on going through the vigilance report and the document relating to school entry, it is evident that the petitioner has been almost entirely brought up by her mother, who belongs to the Mahar Scheduled Caste. The mother and the father were married on 25 April 1993 but soon after the marriage discord struck the couple and they could never reconcile their differences. A consent decree of divorce was granted by the competent Civil Court of Maharashtra in November 2009. The petitioner, born in August 2002, was barely seven years of age at that time and was thereafter raised by her mother as a single parent. Even before the divorce, the record shows that the petitioner was looked after and taken care of in all respects by her mother., The Vigilance Enquiry Officer, after a detailed enquiry, found that the father never cared for his two children, did not relate to them in any manner, nor took them to any paternal relative. The officer also found that the two siblings, including the petitioner, do not recognize any paternal relatives. While admitting the petitioner to the first standard of school, her mother indicated that the petitioner belonged to the Mahar caste. The officer further found that the grandfather follows customs, traditions and practices prevailing in the Mahar caste., Thus, the evidence shows that for all purposes the petitioner has grown and been reared in an atmosphere with customs, traditions and practices prevailing in a household inhabited by Mahar caste persons, which is the caste of the petitioner’s mother. This evidence entitles the petitioner to claim belonging to the Mahar caste, as per the law laid down by the Supreme Court of India in Rameshbhai Dabhai Naika v. State of Gujarat and Others (2012) 3 SCC 400, which is followed by this Court in many judgments including Anchal daughter of Bharati Badwaik v. District Caste Scrutiny Committee and Others (WP No. 4905 of 2018, decided on 8 April 2019). However, while invalidating the caste certificate of the petitioner, the Scrutiny Committee erroneously held that the petitioner ought to have submitted evidence from the father’s side to prove her claim. In spite of overwhelming evidence favouring the petitioner’s claim to the social status of her mother, the Scrutiny Committee took a contrary view, ignoring the law declared by the Supreme Court in Rameshbhai Naika., Further perusal of the impugned order shows that the Scrutiny Committee failed to properly appreciate the evidence brought on record by the petitioner, which consisted of entries of relatives on the maternal side. The petitioner is entitled to claim the same social status as her mother, having been almost entirely brought up by her mother. The petitioner’s background shows that she was subject to the same disadvantages, neglect and backwardness as her mother, and therefore she can rightfully take the caste of her mother and not her father. The Scrutiny Committee ought to have appreciated the evidence pertaining to the mother’s relatives, but it did not., One aspect that may appear adverse to the petitioner is the mention in the vigilance report of a line drawn across the word ‘Harijan’ in the school entry of the maternal grandfather. The crossing out of the word ‘Harijan’, prima facie, does not create any adverse impact on the social status claimed by the petitioner because the word ‘Mahar’ in the entry has not been crossed out. The Scrutiny Committee may consider this aspect in accordance with law without being influenced by these observations., In the result, the impugned order cannot be sustained in law. The petition is allowed. The impugned order is hereby quashed and set aside and the matter is remanded back to Respondent No. 2, the Scrutiny Committee, for deciding the caste claim of the petitioner afresh and in accordance with law at the earliest, and in any case within three months of the appearance of the petitioner before Respondent No. 2. The petitioner shall appear before Respondent No. 2 on 4 April 2022. Respondent No. 2 is at liberty to consider the existing evidence and to admit on record additional evidence, whether through further vigilance enquiry or through documents placed on record by the petitioner. The petitioner is at liberty to file additional documents on record.
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Revisionist: Smt. Laxmi Devi and three others. Opposite Party: State of Uttar Pradesh through Principal Secretary (Civil Section), Lucknow and five others. Counsel for Revisionist: Prabhash Pandey, Vishnu Shankar Jain. Counsel for Opposite Party: C.S.C., Amitabh Trivedi, Fatima Anjum, Manoj Kumar Singh, Saurabh Tiwari, Syed Ahmed, Vineet Sankalp, Zaheer. Honourable Judge Arvind Kumar Mishra‑I, J., Pursuant to the order of the Supreme Court of India dated 04.11.2022, the Director General, Archaeological Survey of India, New Delhi was directed to express an opinion on whether scientific investigation of the structure found at the site, which is the subject matter of Original Suit No. 18 of 2022, can be done through carbon dating, ground penetrating radar, excavation and other scientific methods to determine its age, nature and other relevant information without causing damage to it., In that regard, the report was submitted by the learned Additional Solicitor General of India, Sri Shashi Prakash Singh, assisted by learned counsel Sri Manoj Kumar Singh., It is noticeable that the aforesaid report was produced in a sealed envelope by the Additional Solicitor General of India for perusal of the Supreme Court of India on 11.05.2023. The sealed envelope was opened in court and a copy of the report was made available to the counsel for the revisionists as well as the contesting respondents. The copy was supplied to them so that the parties could become aware of the substance and contents of the report submitted by the Archaeological Survey of India, Sarnath Circle, Sarnath, Varanasi. At this juncture it was considered appropriate to give at least one day's time to both sides to peruse the copy of the report and to state their respective stand so that the matter could be finally considered for disposal, and the proceeding was adjourned to the next day, i.e., 12.05.2023., The Supreme Court of India carefully perused the original report, which was submitted to the court by the covering letter of the Superintending Archaeologist, ASI, Sarnath Circle, Sarnath, Varanasi, dated 17.04.2023, communicating that the report runs to fifty‑two pages. The learned Additional Solicitor General of India explained the various contents and aspects of this report as submitted., The learned Additional Solicitor General described the report by summing up that the opinion of the Archaeological Survey of India is based upon views of various renowned Indian Institutes of Technology located in different regions of India, and also on scientific analysis of various methods and approaches likely to be adopted for carrying out a survey of the structure in question on the site., Heard Sri Hari Shanker Jain, learned Senior Advocate, through virtual mode, assisted by Sri Vishnu Shanker Jain, Sri Prabhash Pandey, Sri Pradeep Kumar Sharma, learned counsel for the revisionists through hybrid mode, Sri Shashi Prakash Singh, Additional Solicitor General of India, assisted by Sri Manoj Kumar Singh, Advocate appearing for the Archaeological Survey of India, Sri Mahesh Chandra Chaturvedi, learned Additional Advocate General assisted by Sri Bipin Bihari Pandey, learned Chief Standing Counsel, Sri Ramanjay Singh, learned Additional Chief Standing Counsel, Sri Ankit Gaur, Sri Shravan Kumar Dubey, Sri Gyanendra Singh, Sri Hare Ram Tripathi, learned Standing Counsel for respondents No. 1, 2 and 3, Sri Syed Farman Ahmad Naqvi, learned Senior Advocate assisted by Sri Syed Ahmed Faizan, learned counsel for respondent No. 4, Sri Vineet Sankalp, learned counsel for respondent No. 5. No one appeared on behalf of respondent No. 6 despite repeated calls, and the record was perused as available., By way of the instant revision, a challenge has been made to the impugned order dated 14.10.2022 passed by the District Court, Varanasi, in Original Suit No. 18 of 2022, Rakhi Singh v. State of Uttar Pradesh and others, whereby application numbered 250 C moved by the plaintiff‑revisionist and objections 255 C and 262 C were considered and the application was dismissed on the observation that the prayer for scientific investigation of the structure (in the shape of a Shivlingam) could not be ordered as that would violate the order dated 17.05.2022 passed by the Supreme Court of India directing the site/Shivlingam to be preserved and protected. The trial court also observed that, in view of the above, there was no need to call any report from the Archaeological Survey of India., Learned counsel for the revisionists has vociferously claimed that the entire report on the point in issue for scientific investigation of the site by the Archaeological Survey of India, when taken into consideration, reflects that scientific survey of the site/Shivlingam can be managed and done without causing harm to the site. In support of this claim, learned counsel has drawn the Court’s attention to various pages of the aforesaid report, specifically pages 1, 6, 8, 17, 18, 19, 21, and asserted that the opinion/report submitted by the Archaeological Survey of India presents all the options available for conducting scientific survey of the site with possible outcomes, and elaborates methods by which data regarding the age of the site or carbon dating can be obtained without causing damage. He concluded that the opinion submitted by scientists from the various IITs is based upon scientific analysis of the modus operandi to be applied in this case, and suggested that methods likely to cause damage be discarded while those that enable scientific investigation without damaging the site should be adhered to and given a green signal by this Court so that the actual age of the Shivlingam may be ascertained., At the very outset, learned Senior Counsel appearing for respondent No. 4 raised a preliminary objection regarding the proceeding of the Supreme Court of India in view of the order dated 17.05.2022 passed by the Supreme Court of India. Learned Senior Counsel read out the directions of the Supreme Court of India that the structure in issue is required to be protected/preserved, therefore it cannot be disturbed and any order for carrying out a survey or scientific investigation would be violative of the aforesaid order., Learned counsel for the revisionists intervened and, in reply to the aforesaid contention, submitted that the order dated 17.05.2022 of the Supreme Court of India would not deter this Court from considering scientific investigation to be done in a manner that does not cause damage to the site, and the site would remain protected and preserved., In support of his submission, Sri Vishnu Shanker Jain, learned counsel for the revisionists, engaged the Court’s attention to the order dated 20.05.2022 passed by the Supreme Court of India and read it out in its entirety, claiming that the order itself directed the trial Judge/District Judge, Varanasi to proceed with the trial touching upon ancillary matters. It is noticeable that during the course of the suit, application 250 C was moved by the plaintiff‑revisionist calling for scientific investigation of the site, which was considered more on technical grounds than on merits and perfunctorily rejected on the ground of the order dated 17.05.2022 that the Shivlingam had been directed to be protected and preserved. The trial Judge was of the opinion that there was no need to call any report from the Archaeological Survey of India for determining the age, nature and structure of the Shivlingam. He repeated his claim that conducting scientific investigation for determination of the age would not, in all probability, damage or destroy the Shivlingam and would not change its nature as existing on the date., At this stage, Mr Syed Farman Ahmad Naqvi, learned Senior Counsel for respondent No. 4, was posed a specific query as to whether the report of the Archaeological Survey of India, as submitted by the learned Additional Solicitor General of India, inescapably connotes that any scientific investigation of the Shivlingam would have the effect of destroying the site. He read out contents of page 4 of the report, but was intercepted by counsel for the revisionists who read out contents of pages 6 and 8, which the Senior Counsel did not oppose. The Senior Counsel drew a blank on the specific query that any scientific investigation would in all probability cause damage to the structure., As the Court proceeded further and asked the learned Additional Solicitor General of India, Sri Shashi Prakash Singh, assisted by Sri Manoj Kumar Singh, to express his views about the express and implied connotations emerging from the report, he elaborated that the ground penetrating radar technique would be helpful in identifying remains of ancient structures buried at the site, and that subsurface stratigraphic sections would be ideal to study different cultural levels. He claimed that the Indian Institute of Technology, Kanpur has a specific suggestion in this regard. After extensive discussion of the various methods suggested in the report, the learned Additional Solicitor General suggested that scientific investigation of the site can be ably done without causing harm to the Shivlingam, and stated that a cumulative reading of the report does not make it a point that any scientific investigation, if carried out, would damage the Shivlingam., Learned Additional Advocate General, Sri Mahesh Chandra Chaturvedi, appearing for the State, echoed the argument of the Additional Solicitor General and claimed that there is nothing in the entire report which may cause damage to the Shivlingam if scientific investigation is directed to be done. Therefore, to claim that the nature of the property would not be protected in case of scientific investigation is a baseless argument without any rationale., In the wake of the rival contentions and the factual position reflected in the report of the Archaeological Survey of India submitted by the Additional Solicitor General of India, the sole issue for consideration of the Supreme Court of India is whether scientific investigation of the Shivlingam can be directed without harming or damaging the Shivlingam., While proceeding in the matter and viewing the issue from that angle, the overall impression that emerges from careful perusal of the report indicates, to all intents and purposes, that scientific investigation of the site can be suitably carried out without causing harm to the Shivlingam. It can therefore be concluded that the Shivlingam would remain preserved and protected even after scientific investigation for determining its age, nature and status. The various scientific institutions’ reports indicate the same purport. Since the entire report has been made part of the record, there is no need to describe the various extracts., In view of the above discussion, the natural conclusion emerges that scientific investigation of the Shivlingam, under the able guidance of the Archaeological Survey of India assisted by experts, scientists and archaeologists, can be done conveniently subject to the condition that the Shivlingam shall not be damaged and shall be preserved and protected in its present shape., At this juncture, proper scrutiny of the impugned order dated 14.10.2022 passed by the District Court, Varanasi, is required both on legal and factual aspects., Bare perusal of the impugned order reveals that application 250 C was moved by the plaintiff‑revisionists under Order 26 Rule 10A of the Civil Procedure Code, 1908, praying that the nature, age and status of the Shivlingam discovered on 16.05.2022 be scientifically investigated by the Archaeological Survey of India using carbon dating and other techniques. The order elaborates the background of Original Suit No. 18 of 2022, notes that a structure in the shape of a Shivlingam was found by the Advocate Commissioner, and discusses the objection 255 C filed by the defendant. After considering the factual aspects, the trial Judge held that the Supreme Court of India, by its order dated 17.05.2022, had directed that the Shivlingam be protected and preserved, and that any direction for carbon dating or ground penetrating radar could cause harm and would be contrary to that order and could adversely affect religious feelings. Consequently, the application 250 C was rejected., Now, insofar as the District Judge’s observation regarding scientific investigation is concerned, it is an admitted fact that before passing the order on 14.10.2022, due diligence was not exercised. The finding that scientific investigation would cause damage is assumptive and not based on any material on record. If the trial Judge had any apprehension of damage, it was obligatory to seek expert opinion from persons well‑versed in such enterprises. The learned trial Judge, without collecting specific data from the able agency, jumped to the conclusion that scientific investigation would in all probability result in destruction of the Shivlingam., The Supreme Court of India has no hesitation in observing that the report forwarded by the Superintending Archaeologist, ASI, Sarnath Circle, Sarnath, Varanasi, makes it feasible and convenient that scientific investigation can be carried out without causing harm to the Shivlingam. Thus, the natural premise follows that the Shivlingam would remain preserved and protected. It is a factual reality that the technical and scientific report has opened ways for carrying out scientific investigation without damaging the structure., It being a civil revision against the order dated 14.10.2022 passed by the District Court, Varanasi, the merits of the original suit are not to be touched by the Supreme Court of India., For the reasons aforesaid, the order dated 14.10.2022 passed by the District Court, Varanasi, is found to be without merit, because the finding that any scientific investigation would cause harm to the structure is not supported by relevant material on record., It is well‑settled law that any finding recorded by a court must be supported by relevant material on record; a finding recorded on the strength of reasoning alone, without material, is arbitrary and erroneous. Therefore, the finding of the District Court, Varanasi, recorded on 14.10.2022 is erroneous and cannot be sustained., Consequently, the order dated 14.10.2022 passed by the District Court, Varanasi, in Original Suit No. 18 of 2022, Rakhi Singh v. State of Uttar Pradesh and others, is hereby set aside., Therefore, application 250 C moved by the plaintiff‑revisionist is allowed, directing that scientific investigation of the Shivlingam shall be carried out without causing damage and the Shivlingam shall be preserved in its present form. All objections to application 250 C are hereby disallowed., It is directed that the District Court, Varanasi, will proceed further with the case and scientific investigation of the Shivlingam shall be directed to be done under the aegis and guidance of the Archaeological Survey of India, to the extent observed herein, and the entire exercise shall be done under the direction and supervision of the trial court, with all consequential necessary directions to be passed., In order to facilitate further action by the District Court, Varanasi, in Original Suit No. 18 of 2022, Rakhi Singh v. State of Uttar Pradesh and others, the learned Additional Solicitor General of India is directed to issue suitable directions to the concerned authority of the Archaeological Survey of India to appear before the District Court, Varanasi, on 22.05.2023. The authority, after seeking suitable direction from the District Court, shall render assistance to the trial Judge and carry out the scientific investigation of the structure in light of the observations made in this order. Both parties have been apprised of this date and have agreed to abide by it. The parties are required to appear before the trial court on 22.05.2023., To ensure proper scientific investigation as directed, a copy of the entire report of the Archaeological Survey of India shall be transmitted forthwith to the District Court, Varanasi. It is made clear that this report, which runs to fifty‑two pages and was forwarded by the Superintending Archaeologist, ASI, Sarnath Circle, Sarnath, Varanasi, will form part of the record of the suit., This revision is allowed in terms aforesaid., Before parting with the judgment, the Supreme Court of India records high appreciation for the valuable assistance extended by the Additional Solicitor General of India, Sri Shashi Prakash Singh, assisted by Sri Manoj Kumar Singh, appearing for the Archaeological Survey of India, who took pains in elaborating the various contents of the report, thus assisting the Court to a great extent in disposal of this case. Likewise, the Court accords appreciation for the services rendered by the learned Additional Advocate General, Sri Mahesh Chandra Chaturvedi, State of Uttar Pradesh, and learned Chief Standing Counsel, Sri Bipin Bihari Pandey, in disposal of this case. Learned Senior Counsel for respondent No. 4, Mr Syed Farman Ahmad Naqvi, and his assisting counsel also deserve appreciation for rendering useful help to this Court in disposal of this case., A copy of this order shall be transmitted to the District Court, Varanasi, forthwith for ensuring compliance as above.
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New Delhi, 09 December 2021 – I am very happy to address this gathering on the occasion of the Eighth Convocation. Before I begin my address, I would like to congratulate the students who are graduating today. It marks the culmination of a phase of learning. Let me also congratulate you on becoming part of an immensely challenging, intellectually stimulating and incredibly satisfying profession. It is appropriate to quote Justice Chagla: “The legal profession is a great calling and it is a learned and noble profession. Remember always that it is a profession, not a trade or business. In business, your sole object is to make money; in the legal profession making money is merely incidental.”, The Father of our nation, Mahatma Gandhi, once remarked, “Youth are agents for transformation.” The history of modern India would be incomplete without acknowledging the role played by students and youth of this country. Many social revolutions and changes were brought about through politically conscious and socially responsible students, who raised their voice against existing inequities. Students have been the face of the Indian independence movement, and the youth have often taken up certain causes and inspired many political parties to adopt them subsequently., Education has a social agenda. The agenda is to develop our human resources which meet the requirements of society. An educated citizenry is the greatest asset for any democratic society. Students are known for their readiness to fight for all the right causes because their thoughts are pure and honest. They are always at the forefront, questioning injustice., Any keen observer of Indian society would notice that in the past few decades no big leader has emerged from the student community. This appears to be correlated with diminished participation of students in social causes after liberalisation. The importance of student participation in modern democracy cannot be played down. It is necessary for you to take part in current debates, to have a clear vision, and for more well‑meaning, forward‑looking, and upright students like you to enter public life and emerge as leaders., A responsive youth is vital for strengthening democracy. It is therefore necessary for students to realise the importance of their relationship with society. Students are an integral part of society; they cannot live in isolation. They are guardians of freedom, justice, equality, ethics, and social equilibrium. When the youth become socially and politically conscious, basic issues of education, food, clothing, health care, shelter, etc., will come into focus in the national discourse. The educated youth cannot remain aloof from social reality. Consider this: nearly one fourth of our population still lacks access to basic education, and only about 27 % of those in the university‑age group are enrolling for university education., The youth of today is driven by idealism and ambition. Idealism without ambition may not achieve positive results; ambition without idealism can be dangerous. Combine the two in the right proportion and enable our country to emerge as one of the most powerful and harmonious nations., The learnings of my generation were different. In addition to formal learning in school and college, the tough circumstances taught us many valuable lessons. When we left college in search of livelihood, the change was not abrupt. There was freedom to experiment, work, play and learn from society. Unfortunately, the focus nowadays is on professional courses to the total neglect of equally important subjects such as humanities and natural sciences. In an anxiety to secure highly remunerative and profitable job opportunities, children are sent to privately run residential schools and coaching centres. The formative years of budding talent are spent in a suffocating atmosphere that unfortunately resembles prisons. Holistic development of a child cannot be achieved in such a restrictive environment. The harsh reality is that even after students enter professional universities, the focus is on classroom learning, not on the world beyond the classroom., My general observations on the power and responsibility of students and the youth are even more relevant when it comes to all of you who are graduating today. You are all law graduates of one of the premier law universities in the country, and you have a special responsibility to society., Talking of National Law Universities, the primary object behind their establishment was to improve the quality of legal education and to produce better‑trained legal professionals. However, no authoritative study has been conducted to determine whether this has taken place. Additionally, most students from these universities end up in corporate law firms. Although such firms are an integral part of the legal landscape, a comparable addition is not being made to the ranks of lawyers practising in courts from the National Law Universities. This is perhaps one of the reasons why National Law Universities are perceived as elitist and detached from social realities. You must remember that as a practising advocate you will interact with a far wider cross‑section of society than a lawyer working in a corporate law firm. You will be able to spend your time and efforts on causes that you are passionate about and fight battles in the Supreme Court of India relating to various social issues. Enrichment of courtroom advocacy is the need of the hour and is something that the profession must think about collectively., I urge all stakeholders to consider this issue and come up with a solution. Lawyers cannot be strangers to socio‑economic and political realities. With countless tools at your disposal, all the knowledge and information in the world a click away, you are in a privileged position. While it is not wrong to choose a life of convenience, I hope that you also choose a life of service for the future of this nation., You must reflect on the role you can play in the social enrichment and transformation of the nation. Only such introspection leads to the development of necessary strength of character and conviction of belief. Be aware of prevailing inequities and ask yourself, ‘Can I be part of the solution?’ Particularly in a country like India, you need to be social architects. The legal profession is not about profit maximisation; it is a service to your client. Remember your duty to the Supreme Court of India and to the law. Carry out your sacred task with utmost sincerity and honour., Learning of law occurs in three parts – as a student, as a professional, and in real life. After leaving this beautiful campus, do not be shocked when you see the conditions outside. Courtrooms are not like those represented in movies or moot courts. Cramped courtrooms, judges sitting on broken chairs, stenographers and court masters having to attend the Supreme Court of India without adequate arrangements, and absence of restrooms are common sights. In this profession, clients will not come searching for you. Success will not arrive at your doorstep. You have to remain patient and carry on., I do not want to terrorise you as you embark on your professional life; these are simply words of caution. I want you to be aware of what you are getting into and ready for the challenges. I am sure you will all be able to overcome these early difficulties. Combine the reality you will face outside this campus with the theories and ideas you have learned at the university to creatively remedy the existing situation. Always be alive to the harsh realities of the world, particularly the suffering of millions of people in the country. Never compromise on your principles., When you enter the profession you will take an oath on the Constitution. Always remember your solemn duty to uphold the Constitution. You are aware that independence of the judiciary is sacrosanct in ensuring the rule of law. As officers of the Supreme Court of India, you must always guard the institution during testing times and remain vigilant about possible attacks. This is our collective responsibility towards the Constitution. It is for you to shape the future of this country. The opinions you write, policies you draft, pleadings and submissions that you file in the Supreme Court of India, and the ethics that you hold dear will have a far‑reaching effect., As the former President of the United States, John F. Kennedy, famously said, ‘Ask not what your country can do for you; ask what you can do for your country.’ Today is also a proud occasion for this University and the faculty. In its short existence, National Law University Delhi has firmly established itself as one of the best institutions of advanced learning and research in the country. I am particularly impressed by the fact that NLUD has many research centres engaged in high‑quality rigorous academic and empirical research, cited both nationally and internationally., It is proper to recall the services of all those who built this institution brick by brick. Chief Minister Arvind Kejriwal has been a pillar of strength for this institution; he honours every request made in its interest and is known for his commitment and hard work for the welfare of the people of Delhi, especially in education and health care. Brother Justice D. N. Patel, as Chancellor, is guiding the University and extending all necessary help to make it a centre of excellence. The presence of Justices Siddharth Mridul and Rajneesh Bhatnagar is highly encouraging for the student community. I congratulate the entire National Law University Delhi team led by Professor Srikrishna Deva Rao, the Vice‑Chancellor. Under his leadership, the students have won many national and international laurels., While I heartily congratulate those who distinguished themselves with special laurels today, I want to tell the rest of you that your contributions to the profession and society will be no less important. I also belonged to your league at the time of my graduation. Once again, I congratulate each of you and wish you success in all your future endeavours. God bless you and have a happy and meaningful life ahead.
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Petitioner: Brahma Shanker Shashtri. Respondent: State of Uttar Pradesh through Secretary, Basic Education, Lucknow and others., Counsel for Petitioner: In Person. Counsel for Respondent: Chief Standing Counsel. Honourable Judge Pankaj Mithal, Honourable Judge Saurabh Lavania., Heard Mr. Brahma Shanker Shashtri, petitioner in person. The petitioner in public interest wants that Bhagavad Gita may be taught as one of the subjects to the students of all classes, i.e., basic education to higher education, in the overall interest of the society., In case the petitioner wants to include Bhagavad Gita as one of the subjects in the syllabus of intermediate, he may approach the appropriate authority such as the Board of High School and Intermediate Education, Uttar Pradesh, or any other board or university concerned, which he considers proper for including it as a subject or as a part of the syllabus of one of the subjects., The writ petition as filed is completely vague and misconceived and is dismissed with the above observation.
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Petitioner: Haji Yaqub Qurashi and Another. Respondent: State of Uttar Pradesh and two others. Counsel for Petitioner: Rajan Upadhyay, Senior Advocate. Counsel for Respondent: Government Advocate Munesh Kumar, Honourable Ashwani Kumar Mishra, Judge, Honourable Rajnish Kumar, Judge. This petition has been filed with a prayer to quash the First Information Report in Criminal Case No. 0131 of 2022 under Sections 420, 269, 270, 272, 273, 120B of the Indian Penal Code, Police Station Kharkhoda, District Meerut, which records that in the premises in question fresh open meat to the extent of 6,720 kg along with bones of 1.250 kg was found together with processed meat of 2,40,438.5 kg and other materials, causing huge inconvenience to the public at large as such meat items were not safely kept, generated foul odour unbearable for the public, and constituted a public hazard., The First Information Report is challenged primarily on the ground that the commercial activity of processing meat was undertaken in the premises after obtaining permission or licence from time to time and that only material available in the premises was the packaged meat of 2,40,438.8 kg, which was kept prior to 2019 but could not be removed on account of the COVID-19 pandemic. It is also stated that none of the ingredients of the offences under the various Sections have otherwise been made out in the facts of the case., Sri G.S. Chaturvedi, learned Senior Counsel assisted by Rajan Upadhyay, learned counsel for the petitioners, submits that the offences mentioned in the First Information Report are made punishable only for a period of six months but, on account of a State amendment, the offence under Section 272 and Section 273 have been made punishable for life, and that is why the petitioners have been falsely implicated. It is also stated that the petitioners have no direct role in the running of the industry and, therefore, their arrest, etc., is not required for the purposes of investigation in the matter., The petition is opposed by the learned Additional Government Advocate who submits that prima facie ingredients with regard to the commissioning of a cognizable offence under the aforesaid Sections are clearly disclosed and, therefore, the prayer made to quash the First Information Report is not liable to be accepted., We have heard learned counsel for the parties and perused the material on record. Before proceeding further we may note that Parliament has enacted the Food Safety and Standards Act, 2006 (herein referred to as the Act of 2006) primarily with an intent to consolidate laws relating to food and to establish an appropriate authority for laying down science‑based standards for articles of food and to regulate their manufacture, storage, distribution, etc., Section 31 of the Act of 2006 stipulates that no person shall commence or carry on any food business except under a licence. ‘Food business’ has also been defined in Section 3 to include any undertaking, whether for profit or not and whether private or public, carrying out any of the activities related to manufacture, processing, packaging, storage and transportation, etc. It is therefore apparent that before any person could deal with the packaging of food products, including meat, etc., a valid licence must be possessed so as to ascertain whether the activity is being lawfully carried out., The petitioners have filed a supplementary affidavit in which documents have been relied upon, including a licence issued by the competent authority bearing Licence No. 10017051002030. The licence is dated 28‑03‑2017 and was operative till 27‑03‑2022. No extension of the licence has been placed on record before us., The allegation in the First Information Report lodged on 01‑04‑2022 is based on an inspection of the premises carried out on 31‑03‑2022, which categorically recorded that in addition to processed meat of 2,40,438.8 kg, 6,720 kg of raw meat and bones to the extent of 1,250 kg had been brought in. The allegations therefore are that, without any valid licence, the unit was indulging not only in processing meat previously stored but also in bringing fresh meat into the premises after the expiry of the licence. This prima facie indicates that the unit was indulging in an unlawful act of processing meat without authority of law., So far as the argument with regard to ingredients not attracting Sections 269 to 273 of the Indian Penal Code is concerned, it is apparent that Section 269 would attract when a person unlawfully or negligently does any act likely to spread infection or disease dangerous to life. The act would be treated as unlawful once undertaken without the due permission or licence required by law. Whether the act would lead to infection or disease of any kind dangerous to life is an aspect to be determined during the investigation., The allegations being intact, we would not be justified in embarking upon a factual enquiry at this juncture to determine whether such an offence is made out. A similar situation applies to the applicability of Sections 270 to 273, as prima facie allegations in that regard surface on record, and we have observed that the business was run without due authority or lawful permission from the competent authority., Other allegations are that the storage was generating a strong foul smell and was a safety hazard for the residents of the nearby area. Once that is so, we would not be justified in examining facts to determine whether such allegations are correct., So far as the implication of the petitioners in the matter is concerned, the argument is that the petitioners have no specific role and can always avail themselves of the appropriate remedy under the Code of Criminal Procedure. It goes without saying that such proceedings shall be conducted on their own merits and in accordance with law., For the reasons recorded above, we are of the considered view that no interference in the First Information Report is called for. The writ petition is, accordingly, dismissed.
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WP (Criminal) No. 52 of 2023, Criminal Miscellaneous No. 3187 of 2023. Anshul Garg and others, Petitioners/Appellants, through Mr. Sakal Bhushan and Mr. Rahul Sharma, Advocates, and Mr. Bhavesh Bhushan, Advocate, versus State of Punjab and others, Respondents., The petitioners, by way of this writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seek issuance of appropriate direction, order or writ quashing First Information Report No. 0039 of 2023 dated 03.05.2023 registered on a complaint filed by respondent No. 4 at Women Police Station, Patiala, Punjab, for the commission of offences punishable under Sections 406, 498-A, 313 and 120-B of the Indian Penal Code., The impugned First Information Report has been challenged on the ground that respondent No. 4, who is the wife of petitioner No. 1, is the daughter of a high‑profile person of Punjab who holds cabinet rank as Vice Chairman, Economic Policy and Planning Board, Punjab, and is described as a frequent shopper interested in foreign trips and lavish parties. Since the beginning of the marriage, her temperament allegedly interfered with the professional life of petitioner No. 1. Respondent No. 4 has also been suffering from infertility due to Polycystic Ovarian Disease with difficulty in conceiving and retaining pregnancy, which, according to the petitioners, created marital discord., It is further alleged that despite persistent efforts and mediations by friends of the couple, respondent No. 4 did not amend her behaviour and created problems for petitioner No. 1 as well as for his family, relatives and friends. Petitioners state that petitioner No. 1 filed a petition for judicial separation in December 2022 before the Family Court at Jammu. In retaliation, respondent No. 4 lodged the impugned First Information Report with Women Police Station, Patiala, alleging cruelty, both physical and mental, causing miscarriage, assault by petitioner No. 1, and demands for dowry, and named petitioner No. 1’s parents (petitioners No. 2 and 3), senior citizens, as well as sister‑in‑laws, other relatives and friends., Counsel for the petitioners submits that most of the allegations against the petitioners relate to incidents in Jammu and Kashmir – at Jammu, Katra, Doda, Kupwara and Anantnag – where petitioner No. 1 had been posted in various positions. The First Information Report was lodged concerning those incidents which allegedly occurred before 04.02.2022. During a mediation at Chandigarh in the presence of a senior officer, Secretary to the Government of Jammu and Kashmir, the father of respondent No. 4 and the father of petitioner No. 1 stated by agreement that the wedding ceremony at Chandigarh organized by the parents of the couple was conducted of their own free will without any demands, and that there was no liability on either side. The parties agreed that past misunderstandings would be resolved without interference from the parents of either side., Counsel also draws the attention of this court to the prescriptions of Dr. Mangla Dogra, who was consulted by respondent No. 4 on 09.05.2021, and Dr. Preeti Jindal on 27.03.2020, both diagnosing infertility due to Polycystic Ovarian Disease. It is submitted that respondent No. 4, because of the couple’s misfortune, could not conceive or retain pregnancy, and allegedly used this condition as a ploy to implicate her husband and his family in a false case of causing miscarriage lodged through the impugned First Information Report at Women Police Station, Patiala., The petitioners seek quashment of the First Information Report registered at the Police Station in Punjab, which lies outside the territorial jurisdiction of this court. The Supreme Court of India, in Navinchandra N. Majithia v. State of Maharashtra & Ors., reported as (2000) 7 SCC 640, observed that the mere fact that a First Information Report is registered in a particular State is not the sole criterion to decide that no cause of action has arisen within the territorial limits of another State. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action., Since most of the allegations against the petitioners relate to incidents in Jammu and Kashmir, including alleged cruelty and miscarriage of respondent No. 4, this Punjab and Haryana High Court has jurisdiction to entertain the petition as a cause of action has arisen, at least in part, within its territorial limits. Moreover, the petitioners who are accused in the case also reside within the territorial jurisdiction of this court., Heard. Admit. Issue post‑admission notice to the respondents to file counter‑affidavits within four weeks. Service of the notice to be completed within one week. List on 19.07.2023. Meanwhile, subject to objections from the other side and until the next date before the Bench, the investigation into the impugned First Information Report concerning the petitioners is ordered to be stayed.
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January 12, 2021 Except in the following seven districts that is Bengaluru Urban, Bengaluru Rural, Chikkaballapura, Dakshina Kannada Mangaluru, Mysuru, Shivamogga and Tumakuru, the rest of the districts in Karnataka have had less than 200 COVID-19 active cases for the last about ten days. Therefore, the normal functioning of the High Court as existed prior to 15 March 2020 in all the districts except the aforesaid seven districts is restored, subject to the following conditions: Every person who enters the High Court premises shall be subjected to thermal scanning and checking for symptoms. Wherever possible, two separate entrances shall be provided to the High Court complexes, one entrance for lawyers as well as staff members and the other for litigants, witnesses and others. Sanitizers shall be provided at all entry points. Use of elevators or lifts shall be restricted to fifty percent of the capacity excluding the lift operator. Wearing of masks is compulsory in the court rooms, Bar Association premises, offices as well as in the High Court compound. Anyone found not wearing a mask shall be immediately required to leave the premises. Those who are having symptoms of COVID-19 shall not be allowed entry inside the High Court complexes. Advocates, litigants, witnesses, police personnel etc. shall maintain social distancing in the High Court premises, offices, Bar Association premises as well as in the court rooms. In order to avoid congestion in the premises of the Bar Associations, the restriction of removing half of the chairs inside the premises of the Bar Associations shall continue. It is the responsibility of the members of the Bar to ensure that litigants are not unnecessarily called to visit the High Court premises. The members of the Bar should ensure that their clients visit the court only if their presence is mandatory. The court officials shall have the right to refuse entry to a litigant if it is found that he or she has come to visit the court without any reason. The Bar Associations shall appeal to litigants not to come to court unless and until their presence is necessary. The restriction on canteens, use of Xerox machines, typing and sitting of notaries is relaxed. The daily cause list shall be divided into two parts, one for the morning session and the other for the afternoon session, in order to avoid the footfall of litigants at a time in the court halls and court premises. However, all cases which are due shall be listed. The present arrangement made for filing of cases outside the offices shall continue. These relaxations are purely on an experimental basis. The High Court will have power to withdraw relaxations if it is found that advocates and litigants are not following rules of wearing masks and maintaining social distancing., In the seven districts that is Bengaluru Urban, Bengaluru Rural, Chikkaballapura, Dakshina Kannada Mangaluru, Mysuru, Shivamogga and Tumakuru, where the COVID-19 active cases are more than two hundred, the Special Standard Operating Procedure which is in force will continue. However, in the aforesaid seven districts, opening of canteens is permitted to serve only packed food apart from tea, coffee and biscuits, but subject to maintaining social distancing. The seating capacity in the canteen shall be restricted to half and sanitizers shall be provided., The above said relaxations shall be effective from 18 January 2021 purely on an experimental basis, subject to further changes which may be made from time to time and circumstances may warrant., As regards the above seven districts, as set out in Clause I above, an appropriate decision will be taken after consulting the State Bar Council and Bar Associations.
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The Special Leave Petition has been filed with a delay of 663 days. The explanation given in the application for condonation of delay is set out in paragraphs 3 and 4., We are constrained to pen down a detailed order as it appears that all our counseling to Government and Government authorities have fallen on deaf ears; that is, the Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed. We have raised the issue that if the Government machinery is so inefficient and incapable of filing appeals or petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the statute subsists, the appeals or petitions have to be filed as per the statutes prescribed., No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government (Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors. (1987) 2 Supreme Court Cases 107). This position is more than elucidated by the judgment of the Supreme Court of India in Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr. (2012) 3 Supreme Court Cases 563 where the Court observed as under:, 12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in the Supreme Court of India. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fide effort, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government., 13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months or years due to a considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Eight years hence the judgment is still unheeded!, A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only due to unavailability of the documents and the process of arranging the documents. In paragraph 4 a reference has been made to bureaucratic process works, it is inadvertent that delay occurs., A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Supreme Court of India in an appropriate case to condone the delay., We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as certificate cases. The object appears to be to obtain a certificate of dismissal from the Supreme Court of India to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to the Supreme Court of India is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that the Supreme Court of India will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation., We are thus constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays, that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible., Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner State of Rs 25,000 (Rupees twenty-five thousand) to be deposited with the Mediation and Conciliation Project Committee. The amount is to be deposited within four weeks and recovered from the officers responsible for the delay in filing the Special Leave Petition, and a certificate of recovery of the said amount is also to be filed in the Supreme Court of India within the said period of time., The Special Leave Petition is dismissed as time barred in terms aforesaid., We make it clear that if the aforesaid order is not complied within time, we will be constrained to initiate contempt proceedings against the Chief Secretary., A copy of the order shall be placed before the Chief Secretary, State of Madhya Pradesh.
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In Chamber Petitioner: In Re Respondent: Bar Council of Uttar Pradesh. Counsel for Petitioner: Suo Moto Honourable Pritinker Diwaker, Chief Justice Honourable Mahesh Chandra Tripathi. Order on Civil Miscellaneous Application No. 1 of 2023: On a mention made by Sri Anoop Trivedi, learned Senior Counsel, along with Sri Shiv Kishor Gaur, Chairman, Sri Jay Narayan Pandey, Member Secretary and Sri Madhu Sudan Tripathi, Member, Bar Council of Uttar Pradesh, for urgent hearing in the matter, this Bench of the Supreme Court of India has been constituted today., The present application has been moved by the Bar Council of Uttar Pradesh through its Secretary as also its Chairman and Member Secretary with the prayer to issue suitable directions in respect of the grievances/issues referred to in the application dated 7 September 2023, preferred by the applicant Bar Council of Uttar Pradesh, to be placed before the Special Committee to be constituted by the Chief Justice in the light of the judgment dated 20 April 2023 passed in M.A. No. 859 of 2020 In re: SLP (C) No. 5440 of 2020 (District Bar Association Dehradun versus Ishwar Shandilya and others) and for any other order which this Supreme Court of India may deem fit and appropriate., Sri Anoop Trivedi, learned Senior Counsel, Sri Shiv Kishor Gaur, Chairman, Sri Jay Narayan Pandey, Member Secretary and Sri Madhu Sudan Tripathi, Member, Bar Council of Uttar Pradesh, along with the office bearers of the High Court Bar Association have been heard in support of the present application., Various grievances have been raised in respect of the incident that occurred at District Hapur, Uttar Pradesh, in respect of which the present public interest litigation has already been entertained by the Supreme Court of India., Having considered the submissions made at the Bar, we deem it appropriate to refer the application dated 7 September 2023 of the Bar Council of Uttar Pradesh, containing its grievances in respect of the incident, to the Committee chaired by Honourable Justice Manoj Kumar Gupta and consisting of Honourable Justice Rajan Roy, Honourable Justice Mohd. Faiz Alam Khan, the learned Advocate General of Uttar Pradesh or his nominee, the Chairman of the Bar Council of Uttar Pradesh and the President of the High Court Bar Association. Ordered accordingly., We further direct the Special Investigation Team, already constituted by the State Government to look into the incident, to also intimate about the action taken on the first information reports lodged by the lawyers in respect of the incident, while submitting its interim report, as previously directed., The Registry is directed to place a copy of this order before the Chairman of the Committee for further necessary action in the matter. List this application on 15 September 2023 along with the main case.
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Jitendra Narain versus The State (Union Territory of the Andaman and Nicobar Islands). Learned counsel for the petitioner: Mr. Deep Chaim Kabir and Mr. S. Ajith Prasad. Learned counsel for the State: Mr. Sumit Karmakar. Learned counsel for the victim: Mr. Arul Prasanth., The petitioner is implicated in offences punishable under Sections 376C, 376D, 201, 506 and 120B of the Indian Penal Code along with three others. The charge sheet has already been filed and two of the co‑accused persons have been discharged. The petitioner is the former Chief Secretary of the Andaman and Nicobar Islands and is alleged to have destroyed evidence during the investigation after being transferred. The occurrence is alleged to have happened while the petitioner was serving as Chief Secretary. He, along with co‑accused persons, is alleged to have sexually exploited the victim girl who had approached him for a job. The FIR was filed about seven months after the incident, after the petitioner had been transferred to Delhi. He is currently under suspension and has been in custody for about 110 days., The petitioner was granted interim bail protection by the Honourable Delhi High Court and also by the Principal Bench of the Calcutta High Court during the investigation. The order passed by the Calcutta High Court was taken to the Supreme Court of India. In compliance with the order of the Supreme Court, the petitioner moved the Sessions Court, Andaman and Nicobar Islands for bail. His bail petition was rejected and he was taken into custody. There is no allegation that the petitioner violated any condition of the interim protection., The materials placed by Mr. Sumit Karmakar, learned Public Prosecutor for the State, show that at the stage of granting bail, the prima facie case must be determined solely on the basis of the police report without adding or subtracting facts. On examination of the papers, a prima facie case against the petitioner is found, despite allegations of date manipulation by the Investigating Officer, discrepancies in witness statements, a plea of alibi, and alleged bias in the investigation. While these matters are not discussed in detail to avoid prejudice, the existence of a prima facie case is established., Having heard learned counsel for the parties, we agree with the Public Prosecutor and counsel for the victim that the offence is grave and attracts stringent punishment if proved. However, the law does not require automatic denial of bail merely because the offence is serious. Bail is the rule upon satisfaction of the necessary requirements. The petitioner is an Indian Administrative Service officer who has already been transferred. Some witnesses have been placed under protection, and given the island setting, the petitioner is unlikely to influence them. This is the petitioner’s first case, he is not a habitual offender, and he remains a serving government servant, reducing the risk of absconding. No material suggests that his release on bail would endanger the witnesses or the administration of justice., Accordingly, the petitioner shall be released on bail on such terms and conditions as deemed just and proper by the learned Chief Judicial Magistrate, Port Blair in General Register 658/2022, including: he shall not visit the Andaman and Nicobar Islands except for attending the trial upon proper notice; he shall not contact any person or official of the islands by phone or any other mode of communication during the duration of this order; he shall not threaten, induce or coerce any witness in any manner during the duration of this order; he shall not leave the Union of India except with permission of the competent authority of the Union of India for urgent official work; he shall, through his counsel, submit his passport to the Trial Court during the trial, and if an official visit abroad is required, the passport may be handed over by the Trial Court on proper application. The application for bail is therefore allowed. (Chitta Ranjan Dash, Judge.)
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W.P. No. 4150 of 2022 L. Ponnammal, Petitioner versus Union of India, represented by its Secretary, Department of Investment and Public Asset Management, Ministry of Finance, Block 14, CGO Complex, Lodhi Road, New Delhi-11; Union of India, represented by its Secretary, Ministry of Law and Justice, 4th Floor A‑Wing, Shastri Bhawan, New Delhi-110001; and Life Insurance Corporation of India, represented by its Chairperson, M. R. Kumar, Central Office, Yogakshema Building, Jeevan Bima Marg, Post Box 19953, Mumbai, Maharashtra-400002., Prayer: The petition is filed under Article 226 of the Constitution of India seeking a writ of declaration to declare Sections 128 to 146 of the Finance Act, 2021 as ultra vires Article 110 of the Constitution of India; alternatively to declare Section 5(9) of the Life Insurance Corporation Act, 1956 and Sections 128 to 130 and Sections 132 to 146 of the Finance Act, 2021 as ultra vires Article 110 of the Constitution of India; or alternatively to declare Section 140 of the Finance Act, 2021 as ultra vires Article 110 of the Constitution of India. For the petitioner, Mister Abhishek Jebaraj appears for Mister S. G. Arul Mozhi Selvan. For the respondents, Mister N. Venkataraman, Additional Solicitor General, appears for Mister Prasad Vijayakumar for respondents one and two; Mister Satish Parasaran, Senior Counsel, appears for Mister B. Deepak Narayanan for the third respondent., By this writ petition a challenge is made to Sections 128 to 146 of the Finance Act, 2021 (hereinafter referred to as the Act of 2021), with an alternative prayer to declare Section 5(9) of the Life Insurance Corporation Act, 1956 (hereinafter referred to as the Act of 1956) and Sections 128 to 130 and Sections 132 to 146 of the Act of 2021 as ultra vires Article 110 of the Constitution of India. An additional alternative prayer is made to declare Section 140 of the Act of 2021 as ultra vires Article 110 of the Constitution of India., Learned counsel submits that the petitioner is a policyholder of the Life Insurance Corporation (hereinafter the LIC) and, being aggrieved by Sections 128 to 146 of the Act of 2021 as well as Section 5(9) of the Act of 1956, she has filed this writ petition. The petition is premised on the contention that the provisions were introduced by a Money Bill under Article 110 of the Constitution of India, although the amendment does not fall within the category of Money Bill., The facts state that every participating policyholder was entitled to a minimum of ninety percent of the surplus arising from non‑participating policies, but the amendment under challenge has reduced their entitlement to nil. Consequently, as a policyholder, she has challenged Sections 128 to 146 of the Act of 2021, in addition to Section 5(9) of the Act of 1956., By virtue of Part III of Chapter VI of the Act of 2021, Parliament has amended the Act of 1956 and made substantial changes to various facets of the LIC. The amendment was introduced after the Finance Bill, 2021 was classified by the Speaker of the Lok Sabha under Article 110 of the Constitution of India as a Money Bill. The certificate was issued by the Speaker of the Lok Sabha under clause (4) of Article 110 and has been appended to the writ petition. The Speaker issued the certificate despite the Finance Bill, 2021 containing matters beyond those specified in sub‑clauses (a) to (f) of clause (1) of Article 110. The challenge to the amendments is primarily on the ground that the subject‑matter does not fall within the matters enumerated under Article 110 and would otherwise reduce the share of surplus allocated to participating policyholders., Learned counsel for the petitioner, referring to constitutional provisions, submitted that there are different types of Bills under the Constitution of India: Ordinary Bills governed by Article 107; Financial Bills governed by Article 117; and Money Bills governed by Article 109., The features of a Money Bill, as per Articles 109 and 110 of the Constitution of India, are that the definition of 'Money Bills' is given under Article 110, and under Article 110(1) a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with any of the subject‑matters specified therein., It is submitted that the amendment under challenge does not fall under any of the matters enumerated in sub‑clauses (a) to (f) of Article 110(1) of the Constitution of India. Consequently, the certificate was wrongly issued by the Speaker of the Lok Sabha under Article 110(4)., Learned counsel elaborated that the Act of 2021 and the amendments to the Act of 1956 do not pertain to the imposition, abolition, remission, alteration or regulation of any tax; nor to the regulation of borrowing of money or giving any guarantee by the Government of India. They are not related to the custody of the Consolidated Fund of India or the Contingency Fund of India, nor to the payment of monies into or withdrawal from any such fund, nor to the appropriation of monies out of the Consolidated Fund of India. The provision under challenge does not relate to the declaration of expenditure to be charged on the Consolidated Fund of India, and therefore does not fall within the realm of Article 110 of the Constitution of India., The Finance Bill, 2021 was certified as a Money Bill, although none of the subject‑matters under the Act of 2021 correspond to any of the matters enumerated in Article 110 of the Constitution of India., The President of India initially promulgated the Life Insurance (Emergency Provisions) Ordinance, 1956 to vest management of all life insurance business in the Central Government pending nationalisation, due to alleged mismanagement of several insurance companies. Parliament converted the ordinance into the Life Insurance (Emergency Provisions) Act, 1956, which together with the Life Insurance Corporation Act, 1956, provides for regulation, management, audit and control of the affairs of the LIC, among other matters. Amendments to the Act of 1956 were made periodically, the last prior to the 2021 amendment being the Life Insurance Corporation (Amendment) Act, 2011. The present amendment does not fall within any of the subject‑matters of a Money Bill., The amendment made in 2021 by inserting Sections 5(4), 5A(1) and 5A(2) in the Act of 1956 would enable the Central Government to sell up to forty‑nine percent of ownership in the LIC. Prior to this amendment, the entire ownership of the LIC vested with the Central Government; now, up to forty‑nine percent of the shares can be liquidated, having a serious effect on policyholders., The amendment to the Act of 1956 also removes the rights guaranteed under Section 28 of that Act. Under the pre‑amended provisions, ninety percent or more of the surplus from life insurance business was to be allocated to, or reserved for, the policyholders of the Corporation. By virtue of the amendment, those rights have been taken away, and consequently a challenge is made to the amendment with reference to Section 28 of the Act of 1956., The amendment to Section 5(9) of the Act of 1956 does not fall under any of the matters enumerated in Article 110 of the Constitution of India. By virtue of this amendment, a reservation of up to ten percent of a public issue has been made on a competitive basis in favour of LIC policyholders as one of the reserved categories, whereas previously a policyholder was entitled to receive ninety percent of the surplus amount., Learned counsel for the petitioner referenced the amendment to the Securities and Exchange Board of India Act, 1992 and other facts, but these are not relevant because the challenge is to the Act of 2021 for amendment of the Act of 1956 in reference to Article 110 of the Constitution of India. The issue for consideration is whether the provisions of the Act of 2021 fall within any of the subject‑matters of Article 110 of the Constitution of India., The writ petition has been vehemently contested by the Additional Solicitor General of India appearing for the Union of India and by senior counsel appearing for the respondents. The respondents pray for dismissal of the writ petition at the threshold, contending that it fails to satisfy the triple test for challenge on any of the following grounds: constitutional bar; constitutional illegality; and constitutional fraud., It is submitted that any inclusion or interference with the implementation of a public interest policy by legislation should be eschewed, as it directly impacts the economic growth, prosperity of the nation, and welfare of the general public., The Union is empowered to carry on any trade or business under Article 298 of the Constitution of India, and the decision of the Central Government was duly approved by Parliament to trade five percent of its shareholding in the LIC through an Initial Public Offering under the 'Offer for Sale' procedure as per the Securities and Exchange Board of India norms. Accordingly, the amendment is valid and there is no constitutional bar to the IPO., It is further submitted that the amendments have been introduced to enable the Central Government to float the IPO and receive the proceeds into the Consolidated Fund of India, and that the amendments to the Act of 1956 or other Acts are not standalone, independent, or distinct. The process and procedure for certifying the Finance Bill as a Money Bill have been duly complied with, and therefore there is no constitutional illegality., Relying on the decisions of the Apex Court in Justice K. S. Puttaswamy (Retd.) and another v. Union of India (2019) 1 SCC 1 and Rojer Mathew v. South Indian Bank Limited and others (2020) 6 SCC 1, learned counsel for the respondents submitted that the expression 'Money Bill' cannot be construed in a restrictive sense and that the wisdom of the Speaker of the Lok Sabha must be valued, except where it is blatantly violative of the scheme of the Constitution., Regarding the interpretation of the word 'only', learned counsel for the respondents, referring to the judgment of the Apex Court in Rojer Mathew, argued that prima facie the word 'only' is not restrictive of the scope of the general terms, and if a Bill substantially deals with the imposition, abolition, etc., of a tax, then the inclusion of other provisions necessary for achieving the objective of the Bill cannot remove it from the category of Money Bill., It is further submitted that when Parliament, endowed with plenary powers, passed the Bill and the Standing Committee on the Budget, after scrutiny and due diligence, approved it, it cannot be pleaded that there was fraud on the Constitution., It is submitted that the Finance Bill was introduced on 1 February 2021, received assent of the President of India on 28 March 2021, and was notified in the Central Government Gazette on 29 June 2021, giving effect to the Finance Act of 2021 from 30 June 2021. The petitioner approached the High Court of India after almost eight months, when the IPO was about to be issued; therefore, the writ petition suffers from laches. The Additional Solicitor General has made elaborate arguments on the issue, which will be taken up by the High Court while dealing with the matters raised by the petitioner to avoid repetition., Before adverting to the merits of the rival contentions, it is appropriate to refer to the legislative developments, the amendments to provisions of the Act of 1956 introduced by way of a Money Bill, and the executive developments, as outlined by the Additional Solicitor General., On 1 February 2020, the Union Government of India announced that it proposes to sell a part of its holding in the LIC by way of an Initial Public Offering. The Finance Minister's speech during the Union Budget 2020‑2021 on the proposal stated: 'Disinvestment 105. Listing of companies on stock exchanges disciplines a company and provides access to financial markets and unlocks its value. It also gives opportunity for retail investors to participate in the wealth so created. The government now proposes to sell a part of its holding in LIC by way of an Initial Public Offering.', Subsequently, while presenting the Union Budget for the year 2021‑22, the Finance Minister stated: 'In 2021‑22 we would also bring the IPO of LIC, for which I am bringing the requisite amendments in this Session itself.', Accordingly, the Finance Bill, 2021 was introduced in the Lok Sabha, carrying out the appropriate amendments to the Act of 1956 to give effect to the proposal for bringing the IPO. Clauses 119 to 137 of the Finance Bill, 2021 sought to amend, insert, or substitute various provisions of the Act of 1956., On 23 March 2021, the Speaker of the Lok Sabha certified that the Finance Bill, 2021 would be passed as a Money Bill under Article 110 of the Constitution. The Bill was returned by the Rajya Sabha without any comments or recommendations. The Finance Bill, 2021 received the assent of the President on 28 March 2021. Part III of Chapter VI (Sections 128‑146) of the Act of 2021 deals with the amendments to the Act of 1956. By Gazette Notification dated 29 June 2021, the Central Government notified that Part III of the Act of 2021 would come into force from 30 June 2021. The Central Government framed the Life Insurance Corporation (Amendment) Rules, 2021 to implement the amendments to the Act of 1956., The amendment and substitution of Section 5 of the Act of 1956 is the core provision introduced by Section 131 of the Finance Act, 2021. Relevant portions of Section 5 are as follows:\n\n'5. Capital of Corporation.\n\n(1) The authorised share capital of the Corporation shall be twenty‑five thousand crore rupees, divided into two thousand and five hundred crore shares of ten rupees each: Provided that the Central Government may, by notification, increase the authorised share capital or reduce the authorised share capital to such amount not less than the amount of the paid‑up equity capital of the Corporation immediately before the coming into force of section 131 of the Finance Act, 2021, as it may deem fit: Provided further that the Corporation may, with the previous approval of the Central Government, consolidate or reduce the nominal or face value of the shares, divide the authorised share capital into equity share capital or a combination of equity and preference share capital, and divide the nominal or face value of shares into such denomination as the Corporation may decide.\n\n(2) The Corporation shall, with the previous approval of the Central Government, issue equity shares to the Central Government in consideration for the paid‑up equity capital provided by the Central Government to the Corporation as it stood before the coming into force of section 131 of the Finance Act, 2021.\n\n(4) The Corporation may from time to time increase its issued share capital, with the previous approval of the Central Government, whether by public issue or rights issue or preferential allotment or private placement or issue of bonus shares to existing members holding equity shares, or by issue of shares to employees pursuant to share‑based employee benefits schemes, or by issue of shares to life insurance policyholders of the Corporation, or otherwise: Provided that the Central Government shall, on a fully diluted basis hold, (a) at all times, not less than fifty‑one per cent of the issued equity share capital of the Corporation; (b) during a period of five years from the date of first issue of shares to any person other than the Central Government, not less than seventy‑five per cent of the issued equity share capital of the Corporation.\n\n(9) Notwithstanding anything contained in any other law for the time being in force—(a) regarding various categories of persons in favour of whom an issuer may make reservations on a competitive basis, in relation to a public issue, the Corporation may, at any time during the period of five years from the commencement of section 131 of the Finance Act, 2021, make a reservation on a competitive basis, to an extent of up to ten per cent out of the issue size, in favour of its life insurance policyholders as one of the reserved categories for such public issue: Provided that the value of the allotment of equity shares to such a policyholder shall not exceed two lakh rupees, or such higher amount as the Central Government may by notification specify...'\n\n[The remainder of Section 5 continues with further provisions concerning reservation, pricing, and issuance of other securities.], Section 5 of the Act of 1956 has been substituted to provide for the LIC's capital, the issue of equity shares to the Central Government in consideration for paid‑up equity capital provided by the Central Government to the LIC prior to the coming into force of the new section, the increase or reduction of share capital by the Central Government, the making of reservations, and the issuance of other securities by the LIC for raising funds to meet its business requirements, among other matters. The notes on clauses state that these amendments to Section 5 were made to enable the issue of shares to the Central Government against the paid‑up capital it had invested in the LIC, as well as the issue of bonus shares to the Central Government, which could be offered for sale by way of an Initial Public Offering, resulting in the receipt of money into the Consolidated Fund of India., In summary, the core provision and essence of Section 5 of the Act of 1956 is to enable the listing of the LIC on recognised stock exchanges and to facilitate an Initial Public Offering through which the Government may sell its shares in the LIC, resulting in the receipt of money into the Consolidated Fund of India. The other amendments are incidental to this core provision and were introduced to support the receipt of money into the Consolidated Fund of India., Section 2 of the Act of 1956 has been amended by Section 129 of the Act of 2021 to introduce new clauses defining expressions such as 'Board of Directors', 'Chairperson', 'Director', 'Financial Statement', 'Independent Director', and 'Member'. The newly inserted clauses are as follows:\n\n'2(1b) Board of Directors or Board means the collective body of the directors appointed or nominated or deemed as such under section 4.\n\n2(1c) Chairperson means the Chairperson referred to in clause (a) of subsection (2) of section 4.\n\n2(4a) Director means a director appointed or nominated or deemed as such under section 4.\n\n2(7) Member means every person holding shares of the Corporation and whose name is entered in the register of members maintained under clause (a) of subsection (1) of section 5B.', Section 4 of the Act of 1956, substituted by Section 130 of the Act of 2021, provides for vesting the general superintendence and direction of the affairs and business of the LIC in its Board of Directors. It also outlines the composition of the Board, the appointment or nomination of directors, conditions for appointment or nomination, and the deeming of members as directors immediately before the coming into force of this section to enable the IPO. Relevant portions of Section 4 are as follows:\n\n'4. Board of Directors.\n\n(1) The general superintendence and direction of the affairs and business of the Corporation shall vest in its Board of Directors, which may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation and are not by this Act expressly directed or required to be done by the Corporation in general meeting.\n\n(2) The Board of Directors of the Corporation shall consist of the following directors, not exceeding eighteen, of whom at least one shall be a woman, namely:\n\n(a) a Chairperson of the Board, to be appointed by the Central Government, who shall, (i) during the initial period, be a whole‑time director of the Corporation; and (ii) after the initial period, be from amongst the non‑executive directors nominated or to be nominated by the Central Government;\n\n(b) after the initial period, a Chief Executive Officer and Managing Director, who shall be a whole‑time director of the Corporation to be appointed by the Central Government: Provided that where no Chief Executive Officer and Managing Director is appointed before expiry of the initial period, the individual holding office as Chairperson shall be deemed to have been appointed as the Chief Executive Officer and Managing Director on and from the date of such expiry;\n\n(c) Managing Directors, not exceeding four, to be appointed by the Central Government, who shall be whole‑time directors of the Corporation;\n\n(d) an officer of the Central Government not below the rank of a Joint Secretary to the Government of India, to be nominated by the Central Government;\n\n(e) an individual to be nominated by the Central Government, who has special knowledge or practical experience in actuarial science, business management, economics, finance, human resources, information technology, insurance, law, risk management, or any other field the special knowledge or practical experience of which would be useful to the Corporation in the opinion of the Central Government or who represent the interests of policyholders;\n\n(f) where the total holding of members other than the Central Government in the paid‑up equity capital of the Corporation is (a) not more than ten per cent, one individual; (b) more than ten per cent, two individuals, who shall be elected by and from such members and in such manner as may be specified by regulations, to be appointed by the Board;\n\n(g) such number of independent directors, not exceeding nine, to be recommended by the Nomination and Remuneration Committee and appointed by the Board.\n\n(5) Before an individual is appointed or nominated as a director under sub‑section (2), the Central Government or the Nomination and Remuneration Committee, as the case may be, shall satisfy itself that such an individual as a director shall have no financial or other interest as is likely to affect prejudicially the exercise or performance by him of the functions of a director: Provided that the Board shall satisfy itself from time to time with respect to every director other than a director nominated under clause (d) of subsection (2) that he has no such interest...'\n\n[The section continues with further provisions regarding eligibility and tenure.], The newly inserted Sections 4A, 4B, 4C and 4D of the Act of 1956, introduced by Section 130 of the Act of 2021, provide for disqualifications to be a director; disclosure of interest by a director and senior management; a bar on the LIC from entering into any contract or arrangement with a related party; and adjudication of penalties for contravention or violation under the Act of 1956, respectively. These provisions were incorporated to align corporate governance provisions with IPO listing requirements.
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Sections 5A, 5B, 5C, 5D, 5E and 5F have been inserted in the Life Insurance Corporation of India Act of 1956 by way of Section 131 of the Life Insurance Corporation of India Act of 2021 to provide respectively for transferability of shares, voting rights, maintenance of register of members, declaration in respect of beneficial interest in shares, deeming of Life Insurance Corporation of India shares to be securities and rights of registered shareholders to nominate. The purpose of the introduction of these sections is indicated in the Notes on Clauses as follows: to bring the provisions relating to share transfer, rights of shareholders including voting in shareholder meetings, disclosure of beneficial interest in securities and recognition of securities as shares in alignment with the requirements under the Securities and Exchange Board of India regulations and listing requirements. It is a provision to match the core provision and consequential to the Initial Public Offering which may require provision for transfer of share., Section 19 of the Life Insurance Corporation of India Act of 1956, substituted by Section 132 of the Life Insurance Corporation of India Act of 2021, provides for the constitution of an Executive Committee of the Board, the composition thereof and the functions of the Committee. The amended Section 19 reads: “Executive Committee. (1) The Board may constitute an Executive Committee of the Board, consisting of the Chief Executive; Managing Directors; the director referred to in clause (d) of sub‑section (2) of Section 4; and four directors nominated by the Board from amongst the directors referred to in clauses (e), (f) and (g) of sub‑section (2) of Section 4. (2) The Executive Committee of the Board shall exercise such powers as the Board may entrust to it.”, Sections 19A, 19B, 19C and 19D of the Life Insurance Corporation of India Act of 1956, amended by Section 132 of the Life Insurance Corporation of India Act of 2021, provide for the constitution of various committees of the Board, namely, the Investment Committee; the Nomination and Remuneration Committee; the Audit Committee; and other committees as the Board may deem fit to constitute to render advice to it., Section 23A of the Life Insurance Corporation of India Act of 1956, inserted by Section 135 of the Life Insurance Corporation of India Act of 2021, provides for the holding of an annual general meeting and other general meetings of registered shareholders of the Life Insurance Corporation of India to be held every financial year., Section 24 has been substituted in the Life Insurance Corporation of India Act of 1956 by Section 136 of the Life Insurance Corporation of India Act of 2021 to provide for the Life Insurance Corporation of India having a multiplicity of funds, establishment of reserves and maintenance of separate funds for participating and non‑participating policyholders. Section 24 reads: “Funds of the Corporation. (1) The Corporation shall have its own fund or funds, and all receipts of the Corporation shall be credited thereto and all payments of the Corporation shall be made therefrom: Provided that the Board may, in relation to any of the funds of the Corporation or otherwise, establish reserves which may or may not be allocated for a specific purpose, and such sums as the Board may determine, may be transferred to or from such reserves. (2) The Board shall, for every financial year after the financial year in which the provisions of Section 136 of the Finance Act, 2021 come into force, cause to be maintained (a) a participating policyholders fund, to which all receipts from participating policyholders shall be credited and from which all payments to such policyholders shall be made; and (b) a non‑participating policyholders fund, to which all receipts from non‑participating policyholders shall be credited and from which all payments to such policyholders shall be made. Provided that the members, by resolution in a general meeting, may exempt maintenance of such funds for one financial year at a time up to two financial years.”, The newly inserted Sections 24A, 24B and 24C of the Life Insurance Corporation of India Act of 1956, vide Section 136 of the Life Insurance Corporation of India Act of 2021, make the preparation and maintenance of proper books of accounts, financial statements and the Board’s report mandatory, while Section 24D prescribes the penalties for non‑compliance with these provisions., Section 25 of the Life Insurance Corporation of India Act of 1956, as substituted by Section 137 of the Life Insurance Corporation of India Act of 2021, deals with the appointment of auditors. Sections 25A, 25B, 25C and 25D provide for the removal and resignation of auditors, powers and duties of auditors and auditors’ reports, internal auditors and special auditors, respectively. In the Notes on Clauses these provisions have been amended or inserted with the object of bringing the provisions relating to the Life Insurance Corporation of India’s audit, accounting standards and compliance in alignment with listing requirements. It is a consequence of the core provision of Section 5 of the Life Insurance Corporation of India Act of 2021 to introduce a provision with the ultimate goal of getting money into the Consolidated Fund of India., Section 28 of the Life Insurance Corporation of India Act of 1956, substituted by Section 140 of the Life Insurance Corporation of India Act of 2021, stipulates the manner in which the surplus from life insurance business should be utilized. The provision provides that, for each financial year, ninety percent or a higher percentage as approved by the Board of the surplus shall be allocated to or reserved for the life insurance policyholders, and the remaining percentage shall be allocated to or reserved for members, either credited to a separate account or transferred to reserves as specified by the Board. For non‑participating policyholders, one hundred percent of the surplus shall be allocated to or reserved for members. The remaining surplus and profits allocated to members shall be utilized for purposes approved by the Board, including declaration or payment of dividend, issue of fully paid‑up bonus shares to members and creation of reserves. The Corporation shall, with Board approval, publish its surplus distribution policy on its website at least once in five years, or at a shorter period not less than three years, specifying the percentages referred to., The amendment to Section 28A of the Life Insurance Corporation of India Act of 1956, introduced by Section 141 of the Life Insurance Corporation of India Act of 2021, provides for the allocation or reservation of balance profits from other businesses to its members after making provision for reserves and other matters., Sections 28B and 28C of the Life Insurance Corporation of India Act of 1956 have been newly inserted by Section 142 of the Life Insurance Corporation of India Act of 2021 to make provisions regarding the declaration of dividend and crediting of unclaimed and unpaid dividend amounts to an Unpaid Dividend Account., Section 46 of the Life Insurance Corporation of India Act of 1956, amended by Section 143 of the Life Insurance Corporation of India Act of 2021, declares that defects in the constitution of the Board and its committees, or in the appointment or nomination of directors, will not invalidate their acts or proceedings, which are matters incidental to the proposed creation of the Board and its committees under the new Sections 4, 19, 19A, 19B, 19C and 19D., Section 47 of the Life Insurance Corporation of India Act of 1956 has been substituted by Section 143 of the Life Insurance Corporation of India Act of 2021 to provide protection to any director or employee of the Life Insurance Corporation of India against prosecution for any action taken under the Act, subject to liability for a director who is not a whole‑time director as provided in Section 47(2)., Section 48(2) of the Life Insurance Corporation of India Act of 1956 has been amended by Section 144 of the Life Insurance Corporation of India Act of 2021 to empower the Central Government to make rules relating to various matters incidental to other amendments., Section 49 of the Life Insurance Corporation of India Act of 1956, amended by Section 145 of the Life Insurance Corporation of India Act of 2021, vests a power on the Board of the Life Insurance Corporation of India to make regulations relating to the functioning of the corporation., Sections 50 and 51 of the Life Insurance Corporation of India Act of 1956, newly inserted by Section 146 of the Life Insurance Corporation of India Act of 2021, deal with the form and manner for companies to apply with modifications to the Life Insurance Corporation of India and the power of the Central Government to remove difficulties by order published in the Official Gazette. These provisions are incidental to the core provision and are covered by sub‑clause (g) to Article 110(1) of the Constitution of India, as necessary to match the core provision., Since the coming into force of the Life Insurance Corporation of India Act of 2021 on 30 June 2021, various necessary steps have been taken towards the listing of the shares through an Initial Public Offering. The Chairperson, Managing Directors and Government Nominee Director of the Life Insurance Corporation of India were designated on 1 July 2021. Subsequently, the Central Government appointed the Book‑Running Lead Managers and legal advisors for the IPO. On 8 September 2021, 100 % holding in Life Insurance Corporation of India equity shares was transferred/allotted to the President of India. The corporation also sought certain exemptions from the Securities and Exchange Board of India with respect to compliance of certain provisions of the SEBI Act and its allied regulations. On 11 February 2022, the President of India approved an Offer for Sale of up to 31,62,49,885 equity shares of the Life Insurance Corporation of India, and the Board authorized the IPO. On 13 February 2022, the Government filed the Draft Red Herring Prospectus with the SEBI for the IPO. Money markets have predicted that the IPO would raise up to Rs 65,000–70,000 crore. As of 26 February 2022, the Union Cabinet approved the proposal to amend the foreign direct investment policy to permit foreign direct investment of up to 20 % in the Life Insurance Corporation of India., The issue that requires consideration is whether the amendments fall within the subject‑matters under Article 110 of the Constitution of India. It is appropriate to refer to Articles 109 and 110 of the Constitution, which provide the special procedure for Money Bills and define a Money Bill respectively., Article 109 – Special procedure in respect of Money Bills: (1) A Money Bill shall not be introduced in the Council of States. (2) After a Money Bill has been passed by the House of the People it shall be transmitted to the Council of States for its recommendations, and the Council of States shall, within fourteen days of receipt, return the Bill to the House of the People with its recommendations. The House of the People may then accept or reject any of the recommendations. (3) If the House of the People accepts any recommendations, the Money Bill shall be deemed to have been passed by both Houses with the amendments recommended and accepted. (4) If the House of the People does not accept any recommendations, the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed by the House of the People without any amendments. (5) If a Money Bill transmitted to the Council of States is not returned within the fourteen‑day period, it shall be deemed to have been passed by both Houses at the expiration of that period in the form in which it was passed by the House of the People., Article 110 – Definition of ‘Money Bills’: (1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with any of the following matters: (a) the imposition, abolition, remission, alteration or regulation of any tax; (b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India; (c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such fund; (d) the appropriation of moneys out of the Consolidated Fund of India; (e) the declaring of any expenditure to be charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure; (f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or (g) any matter incidental to any of the matters specified in sub‑clauses (a) to (f). (2) A Bill shall not be deemed to be a Money Bill merely because it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or services, or because it provides for the imposition, abolition, remission, alteration or regulation of any tax by a local authority. (3) If any question arises whether a Bill is a Money Bill, the decision of the Speaker of the House of the People shall be final. (4) Every Money Bill shall be endorsed with the Speaker’s certificate when transmitted to the Council of States and when presented to the President for assent., The challenge to the amendments brought in by the Life Insurance Corporation of India Act of 2021 is on the ground that the subject‑matter would not fall within the definition of ‘Money Bills’ and therefore Article 110 of the Constitution of India was not attracted., The learned Additional Solicitor General clarified that the purpose of the amendment is to receive money in the Consolidated Fund of India to be used for the development of the country, and accordingly the Life Insurance Corporation of India Act of 2021 falls within the realm of Article 110 of the Constitution of India, i.e., it is a Money Bill., The learned counsel for the petitioner argued that the amendment in Section 5(9) of the Life Insurance Corporation of India Act of 1956 has no nexus with the Consolidated Fund of India, and that there are other similar amendments which do not attract the purpose for which the 2021 Act has been brought as a Money Bill., In reply, the learned Additional Solicitor General stated that the main object of the amendment was to receive money into the Consolidated Fund of India for the development of the country and that other amendments are incidental to the matters specified in sub‑clauses (a) to (f) of Article 110(1), and therefore also fall within the definition of ‘Money Bills.’ The amendments were brought in to float an Initial Public Offering to part with 49 % of shareholding in the Life Insurance Corporation of India, thereby receiving money into the Consolidated Fund of India, and all other amendments are saved by sub‑clause (g) of Article 110(1)., A perusal of the Notes on Clauses shows that the amendments were introduced for receipt of money into the Consolidated Fund of India and thus fall under Article 110 of the Constitution of India. All other amendments are saved by sub‑clause (g) of Article 110(1) as they are incidental to the matter specified under sub‑clause (c) of Article 110(1)., The issue was considered by the Supreme Court of India in the case of Justice K.S. Puttaswamy (Retd.) and Rojer Mathew. The Court held that a Money Bill cannot be construed in a restrictive sense and that the wisdom of the Speaker of the Lok Sabha must be valued, except where it is blatantly violative of the scheme of the Constitution. In Justice K.S. Puttaswamy (Retd.), the Court observed that Section 7 of the Aadhaar Act makes receipt of subsidy, benefit or service subject to establishing identity through Aadhaar, and the expenditure incurred is from the Consolidated Fund of India. The Court held that provisions incidental to the main purpose are permissible and that the Aadhaar Act is validly passed as a Money Bill., The Supreme Court further held that the purpose of the Aadhaar Act is to ensure efficient, transparent and targeted delivery of subsidies, benefits and services, the expenditure of which is incurred from the Consolidated Fund of India, and therefore the provision is covered by Articles 110(1)(c) and (e)., The judgment in Rojer Mathew endorsed the view in Puttaswamy that the expression ‘Money Bill’ cannot be construed restrictively and that judicial review of the Speaker’s certification under Article 110(3) is extremely limited. The Court emphasized a presumption of legality in favour of the Speaker’s decision and that the onus is on the challenger to show gross unconstitutionality or blatant substantial illegality., The word ‘only’ used in Article 110 was also considered by the Supreme Court. The Court noted that a liberal and wide interpretation of the word prevents Article 110 from becoming a nullity and that provisions incidental to the main purpose of a Bill do not remove it from the category of Money Bill., The Court observed that the reference to a larger Bench does not stop the operation of a judgment until it is reversed by the larger Bench, and therefore the judgments in Justice K.S. Puttaswamy (Retd.) and Rojer Mathew remain operational and binding., The Supreme Court, in Ashok Sadarangani v. Union of India, held that a mere reference of an issue to a larger Bench does not make the judgment inoperative., In Manager, National Insurance Company Ltd. v. Saju P. Paul, the Supreme Court emphatically held that the pendency of certain questions before a larger Bench does not mean that the particular course followed in earlier judgments cannot be followed., In P. Sudhakar Rao v. U. Govinda Rao, the Supreme Court held that pendency of a similar matter before a larger Bench does not prevent the Court from dealing with the issue on merits.
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Indeed, a few cases including Pawan Pratap Singh, (2011) 3 SCC 267, were decided even after the issue raised in Asis Kumar Samanta, (2007) 5 SCC 800, was referred to a larger Bench. We, therefore, do not feel constrained or precluded from taking a view in the matter., In view of the aforesaid, the judgments of the Supreme Court of India in the cases of Justice K.S. Puttaswamy (Retd.), supra, and Rojer Mathew, supra, can be applied to the present case. It is, however, necessary to deal with this case even independent of the judgments cited supra, because the Notes on Clauses to the amendments elaborate the reason to bring in the amendment. It has been stated that the amendment is brought in to allow the Central Government to float the IPO and receive the money into the Consolidated Fund of India. In view of the above, the reason for amendment is to bring the money into the Consolidated Fund of India and all other amendments were required as a consequence thereof and are saved by Article 110(1)(g) of the Constitution of India, because payment of moneys into the Consolidated Fund or the Contingency Fund of India is covered by Article 110(1)(c) of the Constitution of India. We are, therefore, of the view that the amendment in the case on hand falls within the purview of Article 110 of the Constitution of India., The word “only” used in the definition of Money Bills given under Article 110 of the Constitution of India has to be read along with Article 110(1)(g) of the Constitution of India. If the word “only” is meant to govern only the subject‑matters falling in any of the categories given under sub‑clauses (a) to (f) of clause (1) of Article 110 of the Constitution of India, then it would make Article 110(1)(g) redundant, as Article 110(1)(g) provides for any matter incidental to any of the matters specified in sub‑clauses (a) to (f). Therefore, the word “only” has to be read in conjunction with Article 110(1)(g). To fall in the category of Article 110(1)(g) the prerequisite would be that the main subject‑matter should be governed by any of the sub‑clauses (a) to (f) of clause (1) of Article 110, and if once the requirement aforesaid is satisfied, then any matter incidental to what has been specified under sub‑clauses (a) to (f) would be governed by Article 110(1)(g). In view of the above, we are unable to accept the argument of learned counsel for the petitioner to give a narrow meaning to the word “only” referred to under Article 110 of the Constitution of India. The view expressed above is independent of the judgments of the Supreme Court of India, referred to above., At this stage, it would be appropriate to refer to the mandate of Article 110(3) of the Constitution of India which has been reproduced in the preceding paragraph. The bare reading of the said provision makes it amply clear that, qua the issue as to whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon is final. In the instant case, certification has been made by the Speaker of the House to bring the Act of 2021 as a Money Bill. The petitioner has enclosed the certification by the Speaker of the House of the People along with the writ petition, but he has not chosen to challenge the same. The decision of the Speaker is final as per Article 110(3) of the Constitution of India. If judicial review is permissible under Article 226 of the Constitution of India, it presupposes a challenge to the certification. In the absence of a challenge to the decision of the Speaker of the House of the People, it became final in view of Article 110(3), and if a challenge to the amendment is accepted, then we would be going against the mandate of Article 110(3) with a challenge to the certification by the Speaker of the House of the People. The Bill was otherwise returned by the Rajya Sabha without any comments or objections., We are unable to accept the argument that the certificate given by the Speaker of the House of the People could not have been challenged by the petitioner and, if it cannot be, the question would be in reference to the consequence of Article 110(3) of the Constitution of India, which has not been addressed by learned counsel for the petitioner while raising the argument. It is more so when the issue of judicial review has been kept open by the Supreme Court of India, yet the challenge to the decision of the Speaker of the House of the People has not been made., In any case, the petitioner, who is a policyholder having a policy worth Rs.50,000, is questioning the receipt of money approximately in the range of Rs.65,000 to Rs.70,000 crores into the Consolidated Fund of India on account of the IPO, which is to be used for the development of the country. The intrusion or inference to the implementation of a public‑interest policy by way of legislation should be eschewed, as it directly impacts the economic growth of the country and interference therein may have far‑reaching consequences, because the receipt of money into the Consolidated Fund of India is to be used for the development of the country. The challenge to the Finance Bill, 2021 otherwise is in the hands of a policyholder having a policy worth Rs.50,000. The Union is otherwise empowered to carry on any trade or business as per Article 298 of the Constitution of India and the decision to pass the Act of 2021 as a Money Bill for that purpose was approved by the Parliament of India to trade 5 % of its shareholding in LIC., We further find that the process and procedure for certifying the Finance Bill as a Money Bill have been duly complied with and, therefore, there is no constitutional illegality therein, as has been alleged. It is not a case where an allegation of constitutional fraud has been made and otherwise we do not find a constitutional bar or illegality in the Act of 2021. It is more so when the Parliament endowed with plenary powers had passed the Bill and the Standing Committee on the budget after scrutiny and due diligence had approved it., Thus, even if it is assumed that the judgments of the Supreme Court of India in the cases of Justice K.S. Puttaswamy (Retd.), supra, and Rojer Mathew, supra, may not be applied, we find that independent of the said judgments, we have given reasons for not causing interference to the amendment on a challenge made by the petitioner referring to Article 110 of the Constitution of India., The challenge to the certification by the Speaker of the House of the People has not even been made. The aforesaid aspect was made known to counsel for the petitioner to find out whether he wants to amend the writ petition to challenge the certification. Learned counsel submitted that without challenge to the certificate of the Speaker of the House of the People, he wants to press the writ petition. It was in view of the fact that for a challenge to the certificate issued by the Speaker of the House of the People, he needs to implead the Speaker as party respondent, though he cannot be a party to the litigation. We do not intend to comment on the aforesaid aspect; however, in the absence of a challenge to the certificate issued by the Speaker of the House of the People, the challenge to the Act of 2021 cannot be accepted. The decision of the Speaker of the House of the People is to be treated as final as per Article 110(3) of the Constitution of India, if judicial review of it is not prayed for., Taking into consideration the overall conspectus of the case, we find that the petitioner has challenged the amendment in reference to Article 110 of the Constitution of India without challenging the certificate issued by the Speaker of the House of the People, though its decision is taken as final as per Article 110(3) of the Constitution of India. Moreover, as recorded in the previous paragraphs, when the petitioner was asked whether he would challenge the certificate issued by the Speaker of the House of the People, he answered in the negative and this shows that the challenge is made to the amendment ignoring the constitutional mandate under Article 110(3) of the Constitution of India., At this stage, we reiterate that the challenge was made to the amendment when the process to float the IPO was taken by the Government of India and it is at an advanced stage. If the petitioner was aggrieved by the Act of 2021 amending the Act of 1956, he could have filed a writ petition forthwith. Though the intervening period may be of eight months, in a given case it may be hit by laches, albeit we would not be dismissing the writ petition on the aforesaid ground, but on merits. The issue of laches has been referred to find out the bona fides of the petitioner in approaching the court at the eleventh hour., For all the reasons given hereinabove, we find no merits in the writ petition to challenge the Act of 2021 in reference to the amendment in the Act of 1956. Accordingly, the writ petition is dismissed. However, there will be no order as to costs. Consequently, W.M.P.No.4285 of 2022 is closed., 21.03.2022 Index: Yes sasi To The Secretary, Union of India, Department of Investment and Public Asset Management, Ministry of Finance,
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Naresh Baliyan Vs M/s Times Now Navbharat 06.09.2023 Present : Shri N.C. Sharma, Shri Joginder Sehrawat, Miss Anjali Vashist, Miss Varnika Sharma, Mister Pulak Kathpalia, Learned counsel for plaintiff. Shri Balbir Singh Jakhar, Shri Vikram Singh Jakhar, Shri Neeraj Jakhar, Shri Jitender Sapra, Shri Akshayveer Sehrawat, Miss Vaishali Pawar, Learned counsel for plaintiff. (through VC) Shri Ronnie S. Brara, Learned counsel for defendant. (through VC), Orders during the course of the day. (Ajay Kumar Malik) Additional Sessions Court Judge cum Judicial Settlement Court cum Guardian Judge Dwarka Courts: New Delhi 06.09.2023 (At 4.00 pm) Present: None., Vide this order, I shall dispose of the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed on behalf of the plaintiff thereby seeking an interim ex parte injunction and restraining the defendant and his assignees including its agents, associated television channels, associated group channels, associated media of any kind including print and electronic, executors, administrators, representative agents etc. against telecast, broadcast or printing of any such news spread by Kapil Sangwan alias Nandu of Nandu Gang directly by him or through any person or media etc. till disposal of the present suit. Arguments have already been heard., Defendant had preferred petition against the impugned ad‑interim order dated 17.08.2023 and 18.08.2023 passed by this Delhi District Court and vide judgment in CM(M) 1356/23 the Honorable High Court had disposed of the application with the direction that if the petitioner or defendant approached the learned trial court on or before 28.08.2023 by filing its reply then this Court shall adjudicate and pass final orders on the interlocutory application filed by plaintiff on merits and in accordance with law, within one week of filing of reply., The case of the plaintiff is that the plaintiff is engaged in social work and reforms and was elected as a member of the Delhi Legislative Assembly in 2015 and again in 2020 and has achieved a great reputation in the vicinity due to his hard work and good conduct. It is stated that the plaintiff has received threats from gangster Shri Kapil Sangwan alias Nandu of Nandu Gang for which the plaintiff has lodged police complaints. It is stated that on the noon of 17.08.2023 the plaintiff and his family were shocked by the news broadcast by the defendant on a news channel under the heading ‘Sarji ka Vidhayak Gangster ka Sahayak’ and the said news was also available on the YouTube channel of the defendant and was broadcast on the channel as well as other electronic social media contents. It is stated that the said false news caused great loss to the reputation of the plaintiff as well as his family and the plaintiff suffered mental agony, torture and lowered his status in society as well as among his colleagues., The learned counsel for the plaintiff submitted that the plaintiff has suffered mental torture and harassment due to the aforesaid news. It is stated that the plaintiff is a social worker and has a great reputation in society but after the broadcast of the aforesaid news he was treated by many news channels as a criminal resulting in irreparable loss to the reputation of the plaintiff in society. It is submitted that the aforesaid news be removed or deleted to avoid any further loss to the social life of the plaintiff and his family members., In reply to the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure it is averred by the defendant that the defendant is a more than 100‑year‑old media house and has earned goodwill and reputation for discharging its duties as a media house. It is stated that the defendant, operating its news channel, has a right to broadcast issues of public importance, current affairs and news and the public has a right to know about such issues. It is stated that the defendant is entitled to telecast the clip or programme in question which is based upon truth and in exercise of its right of fair comment also in public interest. The news clip and its content are based upon true facts in relation to a matter of serious concern deserving to be known to the public., Learned counsel for the defendant relied on the judgment titled Sardar Charanjit Singh Vs Arun Purie and Others 1983 (4) DRJ 86 and argued that the defendants intended to plead justification and stated that there is a recognized defence in favour of the defendant. Per contra, it is submitted on behalf of the plaintiff that the plaintiff himself is a victim of gangster Nandu and has already filed a complaint against gangster Nandu. It is also submitted that the defendant has not verified the facts from the plaintiff and irresponsibly broadcast the non‑existing facts against the plaintiff. It is further submitted that the defendant broadcast defamatory content against the plaintiff which the defendant alleged to have received from gangster Nandu, against whom the police have already issued a red‑corner notice, and the defendant has not verified whether the voice of gangster Nandu is indeed that of gangster Nandu or of somebody else, so the defence of the defendant will fail., The defendant also relied upon the judgment titled Kushwant Singh and Another Vs Maneka Gandhi and put reliance on the Bonnard Rule and argued that the interlocutory injunction will not be granted if there is any doubt as to whether words are defamatory or if the defendant swears that he will be able to justify the words complained of. It is further argued that the rights enshrined under Article 19(1)(a) of the Constitution of India are sacrosanct and cannot be violated by an individual or the State. Per contra, it is submitted on behalf of the plaintiff that in the above case the court itself mentioned that the words ‘high thinking’ and ‘high learning’ were stated to be a moralistic view and not a legal view. It is further submitted on behalf of the plaintiff that in the said case the interim orders granted by the learned Single Judge were a pre‑publication injunction whereas in the present matter the plaintiff approached the court after the broadcasting of false defamatory material against the plaintiff and even without verification of the same from the plaintiff. It is further submitted that merely having the right to claim damages by the plaintiff does not entitle the defendant to be distracted and derail from the duties attached with the rights granted under Article 19(1)(a) of the Constitution., It is further argued by learned counsel for the defendant that in the case titled Tata Sons Vs Greenpeace International, 2011, the Court observed that in an action for defamation a Court will not impose a prior restrain for publication unless it is clear that no defence will succeed at trial. Per contra, it is submitted by learned counsel for the plaintiff that the above ratio does not apply to the present case as it is not a matter of pre‑publication but the defendant has already broadcast its clip and thereafter the plaintiff came to know about that clip and approached the Court., The defendant also relied upon the judgment delivered in the case titled Raja Gopal alias RR Gopal Vs State of Tamil Nadu and Others and submitted that the publication related to acts or conduct of public officials would not entitle the officials to invoke the right of privacy and claim damages nor would the Government or local authorities exercising governmental power be entitled to sue for damages. Per contra, it is submitted on behalf of the plaintiff that the defendant did not broadcast the work done by the plaintiff in his official capacity for showing or apprising the public about its drawbacks or illegalities whereas the defendant telecast the contents against the plaintiff without verifying from the plaintiff and all that was done in the name of a person against whom the police have already issued a red‑corner notice and the whereabouts of gangster Nandu are not known to anyone; then how did the defendant come to know that and lead the assertion through the voice and contents of talk with gangster Nandu., It is also argued by learned counsel for the defendant that in the case of Dr. Shashi Tharoor Vs Arnab Goswami and Others it was held that it is the right of the media to comment on the administration of justice before, during and after trial. Per contra, it is submitted by learned counsel for the plaintiff that in the same case the above‑stated rights of the media are guided by the principle that there should not be violation of the presumption of innocence as the presumption of innocence and a fair trial are the heart of criminal jurisprudence and important facets of democratic polity that is governed by the rule of law., The defendant further relied upon the judgment passed in Mother Diary Foods and Processing Ltd. Vs Zee Telefilms Ltd. and argued that it was held in the above case that there is a need to take care that an injunction order, even if granted, does not result in a gag order or super injunction., Learned counsel for the plaintiff relied upon the case and judgment passed by the Honorable High Court of Delhi in the case titled Patanjali Ayurved Ltd. Vs Sobhagya Media Pvt. Ltd. delivered by Justice V. Kameshwar Rao wherein restraining orders were passed against publication of false and defamatory material and directions were also passed to remove, restrict, access, block the URLs which contain the defamatory video or part thereof for Indian domain., The plaintiff also relied upon the judgment passed in the case titled Hari Shankar Vs Kailash Narayan and Others 1981 and held that the reasoning of the Appellate Court that reputation can be compensated by paying damages in terms of money is not easy to accept and the submission that the reputation of a respectable citizen can be measured in terms of money would amount to issuing a licence against a citizen and asking him to take money as compensation for the injury he has suffered to his reputation. It was further held that Article 19 of the Constitution of India does not give a free hand under the guise of free expression and freedom of the press as a right to go on publishing defamatory matter which is a criminal act. It was further held that the right guaranteed by the Constitution must be borne in mind is to all citizens alike. The right in one certainly has a corresponding duty to the other and judged in that manner also the right guaranteed cannot be a qualified one. Whether the matter is defamatory as alleged by the plaintiff and whether the plaintiff is entitled to any compensation will be decided by the trial court finally., It is further argued by learned counsel for the plaintiff that in the case titled Jay Amitbhai Shah Vs Rohini Singh and Others the Honorable High Court of Gujarat observed that the trial court had initially granted an ex parte restraining order against the defendants on 12.10.2017. After taking into consideration the say of the defendants, as already noted above, the trial court arrived at the conclusion that the defendants have failed to show any justification about the nexus of the Honorable Prime Minister with the increase in the business of the plaintiff’s company. This was the basis of the impugned article. The trial court also recorded its satisfaction to the effect that the defendants have failed to show any direct or indirect nexus of association with the Honorable Prime Minister as regards the increase in the business of the plaintiff. The defendants have failed to show any justification to the effect that following the election of Narendra Modi as Prime Minister, the plaintiff has flourished. On the basis of this satisfaction, the trial court further noted that the defendants therefore need to be restrained. On conjoint consideration of these aspects, this Court finds that the initial restraining order dated 12.10.2017 was not required to be diluted by the trial court. The said order therefore needs to be restored., I have given my thoughtful consideration to the submissions made on behalf of the parties. The defence taken by the defendant is yet to pass through the stage of evidence which obviously includes the chance to the plaintiff in the form of cross‑examination of the defendant’s witness. The defendant has not only broadcast news against the plaintiff but also opened the discussion at a national forum. Persons who participated in the debate were neither associates of gangster Nandu nor associates of the plaintiff and they were not also the investigating agency to give any opinion at national level without verifying the facts themselves. The plaintiff is a member of the Assembly and the debate or discussion organized by the defendant is not an in‑house discussion. The plaintiff himself has filed a complaint against Mr. Sachin Sangwan alias Nandu. The defendant itself mentioned in the written statement that the matter is admittedly under investigation with the Special Cell, Janakpuri. It is an admitted case where no facts or allegations were verified from the plaintiff regarding the veracity of statements against the plaintiff and the defendant straight away broadcast the news clip against the plaintiff. The defendant has not observed the duties attached with the freedom enshrined under Article 19(1)(a) of the Constitution of India so there is a prima facie case in favour of the plaintiff. In the judgment relied upon by the plaintiff it is already observed that nobody can be allowed to defame another on the grounds that the injury will be compensated with money. No money can compensate the injury to the reputation of a person so the plaintiff will suffer irreparable loss which cannot be compensated in terms of money, if the present application is not allowed. The defendant itself mentioned in the written statement that the matter is under investigation with the Special Cell against Mr. Sachin Sangwan alias gangster Nandu. Nothing came on record that any FIR has been registered against the plaintiff for any such criminal activity of extortion etc. in connivance with Mr. Sachin Sangwan alias gangster Nandu so the balance of convenience also tilts in favour of the plaintiff., For the discussion above‑stated, the present application of the plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure is allowed. The defendant and his assignees including its agents, associated television channels, associated group channels, associated media of any kind including print and electronic, executors, administrators, representative agents etc. are restrained against telecast, broadcast or printing of any such news spread by Kapil Sangwan alias Nandu of Nandu Gang directly by him or through any person or media etc. till final disposal of the present suit., Put up for replication, admission‑denial of documents and framing of issues on 12.12.2023.
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The State of Assam and others (Appellants) versus Binod Kumar and others (Respondents). By judgment dated 05.12.2017, the Gauhati High Court allowed Writ Petition (Civil) No. 4752 of 2015 and held Rule 63(iii) of the Assam Police Manual invalid on the ground that it is in direct conflict with Section 14(2) of the Assam Police Act, 2007. This judgment is called into question by the State of Assam and its officials in the Home Department., While ordering notice on 07.01.2019, the Supreme Court of India directed that no coercive steps should be taken against the appellants on the basis of the impugned judgment. On 21.03.2023, the Supreme Court of India issued notice to the learned Attorney General for India, being of the opinion that his presence was necessary for effective adjudication of this appeal., The core controversy in this case is as to who should be the Reporting Authority to initiate Annual Confidential Reports (ACRs) / Annual Performance Appraisal Reports (APARs) of Indian Police Service officers working as Superintendent of Police in the State of Assam. More particularly, the issue is whether Rule 63(iii) of the Assam Police Manual, which prescribes that such assessment should be initiated by the Deputy Commissioner concerned as the Reporting Authority, is lawful. The respondents, viz. Indian Police Service officers working as Superintendents of Police in Assam, argue that this Rule is violative of Section 14(2) of the Assam Police Act, 2007., Rule 63(iii) of the Manual, in the context of initiation of the ACR/APAR of a Superintendent of Police of a district, reads as follows: ‘Superintendent of Police – the report should be initiated by Deputy Commissioner, reviewed by the Deputy Inspector General of Police in charge of the Range and sent to the Commissioner of Division. The Commissioner of Division will send the same with his opinion to the Inspector General of Police for acceptance. The Inspector General of Police shall refer the report to the Deputy Inspector General of Police, Special Branch, for recording his remarks regarding performance of the Superintendent of Police of the District in subjects pertaining to the Special Branch.’ Section 14 of the Act reads thus: (1) The administration of the Police throughout the local jurisdiction of the Magistrate is vested in the Superintendent of Police under the general control and direction of the Deputy Commissioner as District Magistrate. The latter is responsible for keeping peace and maintenance of law and order in a district and may employ the police as he thinks best for the purpose. (2) The Deputy Commissioner as District Magistrate has, however, no authority to interfere in the internal organization and discipline of the Police force, but it is his duty to bring to the notice of the Superintendent of Police all cases in which the conduct of and qualification of a Police Officer affect the general administration of a district., As Indian Police Service officers belong to an All India Service, it is pertinent to note the provisions of the All India Services (Confidential Rolls) Rules, 1970 (the 1970 Rules), which were thereafter replaced by the All India Services (Performance Appraisal Report) Rules, 2007 (the 2007 Rules), in the context of the mode and method of preparation of ACRs/APARs of Indian Police Service officers in the rank of Superintendent of Police. Rules 2(e), 2(f) and 2(a) of the 1970 Rules defined Reporting Authority, Reviewing Authority and Accepting Authority respectively, apropos preparation of ACRs/APARs. They read as follows: (e) reporting authority means the authority who was, during the period for which the confidential report is written, immediately superior to the member of the service and such other authority as may be specifically empowered in this behalf by the Government; (f) reviewing authority means authority or authorities supervising the performance of the reporting authority as may be specifically empowered in this behalf by the Government; (a) accepting authority means such authority or authorities supervising the performance of the reviewing authority as may be specifically empowered in this behalf by the Government. Rule 2(e) was thereafter amended by Notification No. 22012/4/87-AIS-III dated 08.12.1987 and read: reporting authority means such authority or authorities supervising the performance of the member of the Service reported upon as may be specifically empowered in this behalf by the Government., The 1970 Rules continued to govern the field till the advent of the 2007 Rules. Rules 2(j), 2(k) and 2(a) of the 2007 Rules define Reporting Authority, Reviewing Authority and Accepting Authority respectively. They read as follows: (j) reporting authority means such authority or authorities supervising the performance of the member of the Service reported upon as may be specifically empowered in this behalf by the Government; (k) reviewing authority means such authority or authorities supervising the performance of the reporting authority as may be specifically empowered in this behalf by the Government; (a) accepting authority means the authority which supervises the performance of the reviewing authority as may be specifically empowered in this behalf by the Government., Hitherto, the Police Act, 1861, was applicable in the State of Assam and the Assam Police Manual originated from it. However, upon the Act of 2007 being brought into force, the Police Act, 1861, was repealed insofar as its application to the State of Assam was concerned. The question presently is whether Rule 63(iii) of the Manual, which dates back to a time when the Police Act, 1861, was in force, can be said to be still valid and lawful in the framework of the Act of 2007 and the 2007 Rules relating to preparation of ACRs/APARs of Indian Police Service officers in the rank of Superintendent of Police., As per Rule 63(iii) of the Manual, the ACR/APAR of a Superintendent of Police should be initiated by the Deputy Commissioner concerned, reviewed by the Deputy Inspector General of Police in charge of the Range, and then sent to the Commissioner of the Division. The Commissioner would then send the same with his opinion to the Inspector General of Police for acceptance, who, in turn, would refer the report to the Deputy Inspector General of Police (Special Branch) for his remarks on the Superintendent’s performance in subjects pertaining to that Branch., The appellants contend that a government servant has no right, much less a legal right, to insist that his or her ACR/APAR ought to be initiated by a particular Reporting Authority. They argue that there is no inconsistency in Rule 63(iii) when compared with the scheme of the Act of 2007 and the 1970 Rules/2007 Rules. Reliance is placed upon the 2007 Rules and the 1987 amendment of Rule 2(e) of the 1970 Rules to contend that it is not necessary that a Reporting Authority be the immediate superior of the member of the service whose ACR/APAR is being prepared; it is sufficient if the authority supervises his or her performance. The appellants further contend that, as Section 14(1) of the Act vests the Deputy Commissioner/District Magistrate with control over the functioning of the Superintendent of Police of that district, the Deputy Commissioner would be the most suitable person to report upon the performance of that Superintendent., The respondents point out that Section 14(2) of the Act makes it clear that the Deputy Commissioner cannot interfere with the internal organization or discipline within the police force in the district and can only inform the Superintendent of Police if the conduct and/or qualification of a police officer affects the general administration of the district. They contend that the archaic Rule 63(iii) of the Manual is not compatible with the scheme obtained under the Act of 2007 and the 2007 Rules and that the Gauhati High Court was well justified in holding it invalid., At the outset, it may be noted that the system of governance under the Police Act, 1861, was altogether different from what it is now. At that time, the Deputy Commissioner exercised far wider powers, being the head of the criminal and police administration in the district. In such circumstances, it was proper that he or she should be vested with the power of assessing the performance of the Superintendent of Police of that district. Rule 63 of the Manual also makes this clear as it speaks of the recording officers being fully conversant with the quality of the work of the officers working under them and states that the intention is that the work of an officer should be known to all his superiors along the line. The hierarchical superiority of the Deputy Commissioner over the Superintendent of Police in that setup is therefore clear., However, after the separation of powers in the present regime, the Deputy Commissioner is no longer the head of criminal and police administration in the district. Presently, Section 14(1) of the Act provides that the administration of the police within the district vests in the Superintendent of Police and Section 14(2) makes it clear that the Deputy Commissioner has no authority to interfere with the internal organization or discipline of the police force. Notably, Rule 25(c) of the Manual empowered the Deputy Commissioner to order an enquiry in case of misconduct by a police officer, in direct variance with Section 14(2) of the Act which unequivocally divests the Deputy Commissioner of such disciplinary power. This distinction must be kept in mind while considering the validity of the procedure prescribed under Rule 63(iii) of the Manual. As pointed out by Sir Rupert Cross in his Statutory Interpretation (3rd Edition, 1995), a statutory provision has to be considered first and foremost as a norm of the current legal system, independent of the historical contingencies of its promulgation, and should be interpreted in the light of its place within the system of legal norms currently in force. These observations were quoted with approval by the Supreme Court of India in Dharani Sugars and Chemicals Limited versus Union of India and others., That apart, one must also keep in mind that Indian Police Service officers, being members of an All India Service, are amenable to the 2007 Rules. Section 65 of the Act makes it clear that police personnel in the State of Assam shall be governed by the existing Discipline and Appeal Rules and other Service Conduct Rules in force, as applicable to the Indian Police Service, State Police Service and others serving in the State Police Establishment. Therefore, merely because they are deployed in the State of Assam, Indian Police Service officers cannot be denied the benefit of the 2007 Rules which apply across the country. It would be incorrect to castigate such officers as insisting upon a Reporting Authority of their choice; they are merely seeking parity with their counterparts in other parts of the country. The extant 2007 Rules therefore have a direct impact on the issue under consideration., The appellants’ case rests on the proposition that the definition of Reporting Authority in the 1970 Rules, post the 1987 amendment, and in the 2007 Rules does not require such authority to be immediately superior to the officer being reported upon. Further, they argue that the Government has been vested with the discretion of empowering any of the supervising authorities as the Reporting Authority and that such discretion must be exercised judiciously within the statutory scheme. The argument that, as the designated reviewing and accepting authorities are senior officers in the police hierarchy, it would not make a difference if the Reporting Authority is not from that department, is rejected. Each cog in the assessment process has its own role, as spelled out by Rule 63 of the Manual, which stipulates that inability or failure to report properly and objectively would be construed as a failure of the recording/reviewing officer and commented upon by the next level. Instruction 5 of the Instructions appended to Form I in the 1970 Rules, titled Confidential Report for Indian Police Service Officers, stipulates that if the Reviewing Authority finds that the Reporting Authority made the report without due care and attention, he shall record a remark to that effect and the same shall be entered in his Confidential Roll., Although a Reporting Authority, as defined, is required to be someone who supervises the performance of the officer reported upon and not necessarily his or her immediate superior, there was no change in the definition of Reviewing Authority. Both the 1970 Rules and the 2007 Rules define Reviewing Authority to mean the authority or authorities supervising the performance of the Reporting Authority, as may be specifically empowered by the Government. In the backdrop of this definition, Rule 63(iii) of the Manual needs to be examined. Notably, a Deputy Commissioner, being the Reporting Authority thereunder, would be altogether independent of the police department, being either an Indian Administrative Service officer or a State Civil Service officer. The performance of a Deputy Commissioner would not be assessed by the Deputy Inspector General of Police, the designated Reviewing Authority under Rule 63(iii), but by his or her own superior in the Administrative Service. Thus, there is a clear departure from the 1970 Rules/2007 Rules., The definition of Reporting Authority in the 1970 Rules, post 1987, and in the 2007 Rules did away with the mandate of having the immediate superior of the officer reported upon undertaking that exercise but it still requires the Reporting Authority to be someone who supervises the performance of the said officer. Ordinarily, such supervision would be by an officer from within the same department, who is higher in rank than the officer reported upon. The Government was given discretion to empower any of the authorities who supervise the performance of the officer reported upon to assume such role. This discretion, however, cannot be construed to mean that someone from outside the department can be given such power, in view of the Reviewing Authority being defined as someone who supervises the performance of such Reporting Authority. This clearly implies that both authorities must belong to the same service or department. In effect, Rule 63(iii) of the Manual does not fit in with the scheme obtained under the 1970 Rules and the 2007 Rules., The learned Attorney General would suggest that this definition be given a restricted meaning to the effect that the Reviewing Authority, i.e., the Deputy Inspector General of Police, would supervise the performance of the Reporting Authority, viz., the Deputy Commissioner, only to the extent of how he or she assessed the performance of the Superintendent of Police and no more. However, we are of the opinion that such a construction does not flow from the plain language of the definition and would require something more to be read into it than was intended. Reference may be made to Kanai Lal Sur versus Paramnidhi Sadhukhan, wherein the Supreme Court of India observed that the words used in a statute must be interpreted in their plain grammatical meaning and it is only when they are capable of two constructions that the question of giving effect to the policy or object of the legislation can legitimately arise., Further, reading down the meaning of the definition would have unintended consequences, fully divorced from the unambiguous words used therein, whereby Reviewing Authority is defined to mean that such an authority must be one who supervises the performance of the Reporting Authority in all respects and not in relation to one function alone., There is no discernible conflict or contradiction between the definitions of Reporting Authority and Reviewing Authority in the 1970 Rules, post 1987, and in the 2007 Rules. The clear import of these definitions is that such authorities must be from within the same service or department. Invocation of the doctrine of harmonious construction vis‑à‑vis these definitions therefore does not arise. Given the clear intent of the 1970 Rules/2007 Rules that the reporting, reviewing and accepting authorities should be from within the same service or department, the question is whether breach of such requirement can be permitted in the State of Assam under Rule 63(iii) of the Manual., In this milieu, Section 14(2) of the Act assumes relevance. Section 14(1) states that administration of the police within the local jurisdiction of the Deputy Commissioner is vested in the Superintendent of Police, under the general control and direction of such Deputy Commissioner, but Section 14(2) makes it clear that the Deputy Commissioner has no authority to interfere with the internal organization and discipline of the police force. This sub‑section further states that it would be within the power and duty of the Deputy Commissioner to bring to the notice of the Superintendent of Police all cases in which the conduct of and/or qualification of a police officer affects the general administration within the district and no more. On a plain reading, Sections 14(1) and 14(2) appear to be in derogation of each other, as Section 14(1) vests the Deputy Commissioner with control over the Superintendent of Police but Section 14(2) makes clear that such control does not extend to interference with internal organization or discipline. These provisions must be harmoniously construed by restricting the power vesting in the Deputy Commissioner under Section 14(1) by duly carving out what has been excepted under Section 14(2). Such harmonious construction is necessary to give effect to both provisions so that they operate without conflict (see S. Gopal Reddy versus State of Andhra Pradesh and Sultana Begum versus Prem Chand Jain)., We may note that even as per the Manual, a Superintendent of Police is not made subservient to a Deputy Commissioner. Rule 25 of the Manual demonstrates this. It provides that though the Superintendent of Police is required to obey the instructions of the Deputy Commissioner in the first instance, the Superintendent can thereafter request the Deputy Commissioner to refer any difference of opinion between them on any question relating to police administration to the Commissioner, who would decide such reference. Moreover, the Superintendent is at liberty to submit his case to the Inspector General of Police if he is dissatisfied with the decision of the Commissioner. Thus, while the Superintendent works under the general control and direction of a Deputy Commissioner and obeys his or her instructions, this does not place the Superintendent under the hierarchical supremacy of that Deputy Commissioner., When liberty has been given to the Superintendent to disagree with the Deputy Commissioner on any point relating to police administration and seek resolution through the Commissioner and thereafter the Inspector General of Police, it would be a parody to subject the performance assessment of such a Superintendent to the same Deputy Commissioner with whom he or she had disagreed. Such an ACR/APAR cannot be taken to be impartial and objective once it is preceded by a difference of opinion, leading to a reference to higher authorities. This situation must be avoided to maintain the sanctity of the assessment process. This constitutes one more reason why the Deputy Commissioner should not be the Reporting Authority of the Superintendent of Police of that district., Circular No. 11059/4/89-AIS.III, dated 28.12.1990, issued by the Government of India in exercise of power under Rules 3 and 10A of the 1970 Rules, stipulated that the Reporting Authority should be in a higher grade of pay than the officer reported upon. The Government noted that there were instances where the ACRs of members of All India Services were initiated by officers belonging to the same batch or drawing the same pay scale as the officer reported upon and instructed that State Governments must ensure that a member of the service does not initiate the Confidential Report of another member of the service in the same grade of pay. It is therefore clear that the Reporting Authority must necessarily be in a higher grade of pay than the officer who is being reported upon. Rule 11 of the 2007 Rules empowers the Central Government to issue instructions with regard to the writing of the Performance Appraisal Report, but no new instruction or circular has been issued in exercise of that power, contrary to the earlier circular dated 28.12.1990. Respondents have cited instances where ACRs/APARs of Superintendents of Police in Assam were initiated by Deputy Commissioners who were not in a higher grade of pay., In State Bank of India and others versus Kashinath Kher and others, the Supreme Court of India held that officers reporting upon performance must show objectivity, impartiality and fair assessment, without any prejudice, and the highest sense of responsibility so as to inculcate devotion to duty, honesty and integrity. It was further observed that as officers may get demoralized by negative ACRs, which would be deleterious to the efficacy and efficiency of public service, such ACRs should be written by a superior officer of high rank. Earlier, in State of Haryana versus P.C. Wadhwa, Indian Police Service, Inspector General of Police and another, the Supreme Court of India considered whether the State Government could empower any authority to be the Reporting Authority of the Inspector General of Police under Rule 2(e) of the 1970 Rules. It was observed that, from the point of view of propriety and reasonableness and having regard to the intention behind the Rule, such an authority must be one superior in rank to the member of the service concerned. Although these observations were made in the context of the unamended Rule 2(e) of the 1970 Rules, the principle remains sound., The appellants argue that the Deputy Commissioner is the most suitable person to assess the performance of the Superintendent of Police, as he works under his control and direction, but we are not impressed. Form I in Appendix II to the 2007 Rules pertains to performance appraisal of all Indian Police Service officers up to the level of Inspector General of Police, which includes Superintendents of Police. Clause 6 in Rule 3 thereof, relating to appraisal by the Reporting Authority, provides various domain assignments from which the Reporting Authority is required to select any four. Law and Order is only one of the twenty named domains, which would come within the purview of the Deputy Commissioner, and the remaining nineteen would not be within his or her purview and supervision. Seized of only one of the twenty domains, the Deputy Commissioner would not be competent to assess the overall performance of the Superintendent of Police., On the above analysis and given the fact that the 1970 Rules/2007 Rules define reporting, reviewing and accepting authorities to mean that they must all be from the same service or department, intervention by the Deputy Commissioner during the exercise of performance assessment of Superintendents of Police of the districts in the State of Assam, by virtue of Rule 63(iii) of the Manual, cannot be countenanced, being in direct conflict therewith, and would tantamount to permitting the Deputy Commissioner to interfere with the internal organization of the police force, which would be contrary to the mandate of Section 14(2) of the Act., We therefore find no grounds to disagree with the conclusion arrived at by the Gauhati High Court. The appeal is devoid of merit and is accordingly dismissed. Applications for permission to file additional documents are allowed. Other pending applications, if any, shall stand closed. Before parting with the case, we place on record our appreciation and gratitude to Mr. R. Venkataramani, learned Attorney General, for his erudite and able assistance.
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The petitioner is before the High Court of Karnataka calling in question proceedings in Criminal Case Number 2108 of 2022 pending before the Judicial Magistrate First Class (III Court), Mangaluru arising out of charge sheet in Crime No. 78 of 2021 of Mangalore Women Police Station registered for offences punishable under Sections 376, 376(2)(f), 376(2)(k), 376C(a), 511, 120B, 179, 202 read with 149 of the Indian Penal Code., The petitioner is a practicing advocate. The second respondent is the complainant. It is the case of the prosecution that the second respondent, a second‑year law student of the SDM College, got to know the petitioner through Mr Dhruva Hegde, a classmate and friend. The second respondent required a work‑cum‑internship and informed Mr Dhruva Hegde to search for a place for internship. Mr Dhruva Hegde introduced his brother‑in‑law, Mr Shivanandana, who was in contact with the petitioner. On the recommendation of Mr Shivanandana, the complainant joined the office of the petitioner on 14‑08‑2021. The petitioner narrated the job and indicated that the intern would have to stay up to 8.00 p.m. It was further informed that a stipend of Rs 6,000 per month would be paid. The job began on 18‑08‑2021. The petitioner is said to have befriended the complainant by communications through WhatsApp messages. The complainant is said to have reacted to such WhatsApp messages without knowing the intention of the petitioner. It is further alleged that the petitioner used to send CCTV footage and pictures of the complainant and was continuously watching the private movements of the complainant such as combing hair, washing face etc. through the CCTV footage and used to send the same as pictures to the complainant., As days passed, liberty was taken by the petitioner for making certain comments with regard to the dress that the complainant wore and sexuality involved in such dresses. The complainant did not reply to such messages as they were inappropriate. The petitioner then started sending messages saying he missed the complainant and liked her. Chats between the two led to a particular incident. On 25‑09‑2021, inside the cabin the petitioner was discussing a case and at around 6.40 p.m. there was no one in the office except himself and the complainant. The petitioner called the complainant into the cabin, pulled her hands and kissed her on the forehead. After the act, he held her tightly, made her sit on his lap and began to unbutton her. He moved his hands on the private parts of the complainant and started to undress himself. The complainant, traumatized by the act, pushed the petitioner and ran out. While doing so, it is alleged that the petitioner threatened the complainant that if she revealed anything, everyone would see her dead body., The complainant then called Mr Dhruva Hegde and asked him to meet her. After a few minutes a friend of the complainant arrived. Later it is alleged that the petitioner kept calling the complainant continuously and one such call was recorded by the complainant wherein he repeatedly confessed that he had attempted to rape the complainant, apologized and requested her to close the issue. The complainant also complained to the wife of the petitioner, which led to certain threats being made to the complainant that she would be finished if she moved further by registering any complaint. The complainant registered a complaint on 18‑10‑2021 before the Commissioner of Police at Mangalore narrating the entire incident with minute details. The matter was referred to the jurisdictional police station, which registered a crime against the petitioner in Crime No. 78 of 2021 for offences punishable under Sections 376, 376(2)(f), 376(2)(k), 376C, 511, 354A, 354B, 354C, 354D, 506, 34, 384, 388 and 389 of the IPC. The police investigation led to recording of various statements of the victim and others, after which the police filed a charge sheet against the petitioner for the offences under Sections 376, 376(2)(f), 376(2)(k), 376C(a), 511, 179, 202 read with 149 of the IPC. The filing of the charge sheet leads the petitioner to the High Court of Karnataka in the present petition., Heard Sri Parameshwar N. Hedge, learned counsel appearing for the petitioner, Smt K.P. Yashodha, learned High Court Government Pleader appearing for respondent No.1 and Smt Sophia, learned counsel appearing for respondent No.2., The learned counsel appearing for the petitioner would submit that the petitioner is no doubt guilty of offences that would become punishable under Sections 354A, 354B, 354C and 354D or even all other offences, but would vehemently contend there is no evidence, even prima facie, to include offences under Sections 376, 376(2)(f), 376(2)(k), 376C(a) and 511 of the IPC. He submits that he is restricting the challenge to the offences punishable under Section 376(2)(f), 376(2)(k), 376C(a) and 511 of the IPC. He would submit that the complaint or the summary of the charge sheet, even if taken to be correct, nowhere indicates any offence of commission of rape as defined under Section 375 of the IPC. The complaint narrates an attempt to rape, but does not move forward to any commission of rape. He would take this Court through the medical records to submit that at the time of medico‑legal examination, the complaint nowhere indicates any incident that she has been raped. He would submit that it cannot be a case that offences punishable under Section 376 of the IPC are even met, in the teeth of the victim herself indicating that there was no sexual intercourse before the doctor. He would seek quashment of the order of cognizance insofar as it pertains to offences punishable under Sections 376, 376(2)(f), 376(2)(k), 376C(a) and 511 of the IPC., Per contra, the learned counsel appearing for the complainant vehemently refutes the submissions of the learned counsel for the petitioner, contending that the matter is at the stage of framing of charges. The petitioner has challenged the charge sheet and there are instances where Section 511 IPC would clearly be attracted to the issue in the case at hand. The learned counsel would submit that the petitioner does not deny occurrence of the incident, but in fact admits the incident. Once he admits the incident, it would not become a case for quashment under Section 482 of the Criminal Procedure Code for any offences alleged. She would take this Court through the Section 164 Criminal Procedure Code statement of the victim to buttress her submission that there was a clear intention and preparation to rape. It is her further submission that there is a very thin line between preparation and attempt, and both preparation and attempt would become a disputed question of fact and, therefore, interference is not warranted., The learned High Court Government Pleader representing the State would toe the line of the learned counsel representing the second respondent/complainant and would contend that if a perusal of the Section 164 Criminal Procedure Code statement is made, it would become unmistakable that it requires evidence and trial. The contentions of the learned counsel for the petitioner should not be considered at this juncture. She has placed the entire charge sheet material for perusal of the Court., I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record, including the entire charge sheet material placed by the learned High Court Government Pleader for perusal., It is not in dispute that the complainant joined the office of the petitioner on 18‑08‑2021 to work as an intern for a stipend of Rs 6,000 per month. The happenings after joining of the complainant in the office of the petitioner till the date of the incident i.e., 25‑09‑2021 are narrated above and would not require any reiteration. The incident happened on 25‑09‑2021 and several correspondences took place thereafter up to the date of filing of the complaint on 18‑10‑2021. The crime was registered on 18‑10‑2021 based upon the complaint made by the complainant. Since the complaint is the basis, I deem it appropriate to notice the complaint. It reads as follows: 25th September 2021 as it was a Saturday, in the afternoon inside his cabin, where we were discussing about a case, he started manipulating me telling that he has high influence in Lokayuktha and Karnataka State Law University and he will offer me any job I seek for in future. Suddenly he got up from his chair and hugged me it shocked me, he said he is like my father and he will look after me. after that my day went according to the mundane routine, he came to the office in the evening. At around 6:40 when there was no one in the office except him and me, he rang the calling bell for which I had to respond by going inside and I had told him that \Sir I'm about to finish the work which was given to me and I wanted to leave as early as possible\ because Mr Dhruva Hegde had come to Mangalore the same day after a week, but I got a reply from K.S.N. Rajesh like \don't worry you have worked sufficient for today\ and asked me to sit on the chair. My quick response to him was that Sir I will leave now hence, he put forward both his hands and asked me to give both my hands to him and he pulled my hands and he kissed me on my forehead held tight and rotated me and forcefully made me sit on his lap, he pressed me against his chest and came close to my ear and whispered \Love you, want to have you\ and grabbed my face and removed my spectacles and kissed me, forcefully he tried to unbutton me and grabbed my breast pressed and buttocks. He also touched my private parts with his bare hand. I could feel his penis erect. He attempted to forcibly rape me. he was in the position of undressing himself I was traumatised by the act which he had done, I was already shattered into fragments and I could not process the things that very time. With a great difficulty I pushed his hands away and I ran out, when doing so he threatened me saying that \If I tell this to anybody then everyone will see your dead body.\ I ran and came out of his cabin, took my bag and my phone which was there for charge and I ran out of his office using stairs. When I reached downstairs, I called Mr Dhruva Hegde and told him to come to meet me at that very moment, for time being I went to a nearby automobile shop, at that very time the shop keeper was about to close the shop so then I pleaded him to wait for 5 minutes. As the people in the shop had seen my condition even they showed their concern and were asking what has happened. After a few minutes Mr Dhruva Hegde came and had conveyed him everything that had happened to me. He decided to take me to his brother‑in‑law's home which is situated in Skate City, Mangaluru. When we reached there we understood that he was not at home hence, me and Mr Dhruva Hegde sat near the entrance of their home. That time I noticed K.S.N. Rajesh was calling me continuously and there were many missed calls, he had even texted that he was requesting me to pick up the call as he wanted to ask about some notice. I told everything to Mr Dhruva Hegde and even he was shocked for all of this. Mr Dhruva Hegde told me to call him back and talk to K.S.N. Rajesh so we can record in his phone whatever he tells on the call to me. I called K.S.N. Rajesh which is the first audio recorded and then he had called me back which is the second audio and the conversation is recorded after the call with K.S.N. Rajesh, Mr Dhruva Hegde sent me both the recorded audio. He confessed repeatedly that he has attempted to rape me and apologised and requested me to close the issue. On 27th September 2021 around 10 a.m. I had visited the office and had a conversation with K.S.N. Rajesh in which he had no outcome. Later I was left with no option so I had to contact his wife Mrs Shashi, regarding the incident. Mr Dhruva Hegde and his family including his mother and brother‑in‑law have told me to keep quiet as there was threat to my life and Mr Dhruva Hegde will be for obvious reasons get involved in the matter. Mr Dhruva Hegde had also informed me that K.S.N. Rajesh has tapped my phone. Due to the threat and the fear within me, I had not done anything against K.S.N. Rajesh. On 13th October 2021, Mr Dhruva Hegde and his mother came to Mangaluru on the same day and met me. They portrayed that I will be in trouble and my future will be ruined if I go against K.S.N. Rajesh. They convinced me to meet him so, I called K.S.N. Rajesh fearing my career and my future. I went to his office and told him not to do anything to me. He said that the audio has reached the Bar Association and I had sent it to them, which was false. I said I have not sent it to the Bar Association and had signed a letter stating that I had not sent it, which has my signature and thumbprint. K.S.N. Rajesh continuously threatened me that he will use the police and file an extortion case against me and all the people involved if I proceeded with any complaint. He also threatened me that I should give an affidavit stating he has not done anything if given he will not complain against me. On 14th October 2021, I went to K.S.N. Rajesh's office telling that not to do anything and I am scared of doing anything against him which will cause trouble to me and I will be murdered. He agreed and told me to make a video together stating that we both have not done anything and all of this is false. I denied to do it as my name was already defamed for the things I have not done so, I told him on his face that the mistake was yours and I won't compromise. Later on the same day, 14th October 2021 I came to know that there is a document which has been made and Mr Dhruva Hegde has signed on it. I asked Mr Dhruva Hegde and he agreed that he has signed a document in K.S.N. Rajesh's office which is an affidavit, which states that I have done all this for money which is not true. Mr Dhruva Hegde, his mother and his brother‑in‑law were involved in signing the document and Mr Dhruva Hegde has confessed that he and his family members were manipulated by K.S.N. Rajesh and he had misguided them telling that some Durga wants to arrest and create troubles for Mr Dhruva Hegde. Mr Dhruva Hegde himself has said that he did not read the document which he was signing and was forced by his family member and K.S.N. Rajesh to sign it telling it was for his safety. Hereby, I request the Commissioner of Police of Mangalore to look into this case very carefully and bring light to this case. Every day one or the other girl faces same or worse situation than this and almost no one comes forward as they know it's a lengthy process. People go to advocates who guard the interest of public, but here in my case it is totally opposite. I have come to know that he has sexually abused and raped many students but because of his power they are afraid. K.S.N. Rajesh's rowdies and some police are sent by Rajesh who were continuously following me. I am very poor and helpless; anytime I may be murdered he has already destroyed the CCTV footage. I am seeking justice; I will produce all the materials in the course of enquiry. I am humbly praying for justice., The complaint is lurid; it narrates the story from the date the complainant came in contact with the clients of the petitioner, entered the office of the petitioner and till registration of the complaint. They are minute details of activities of the petitioner upon the complainant. It then becomes a crime in Crime No. 78 of 2021 for the afore‑quoted offences. The police began to record statements of concerned witnesses and the victim. The victim then tendered her statement under Section 164 Criminal Procedure Code. The statement is in minute detail as to what transpired from the date of entry into the office of the petitioner till the date on which the incident happened. Section 164 Criminal Procedure Code statement reads as follows: I am basically from Kolhapur, Maharashtra. I came to Mangaluru to study law in S.D.M. Law College. Currently I am in the second year of Law College. Due to certain personal problem I needed an internship cum work to earn. Therefore I asked my classmate Dhruva Hegde to help in finding an internship cum job. Dhruva Hegde asked his brother‑in‑law Shivanananda Bhat for the job. He suggested K.S.N.R. Associates. On 14‑08‑2021 I went to meet K.S.N. Rajesh where he interviewed me and said yes for the job. He mentioned that the work timings will be from morning 9.30/10.00 till 8.00 at night. When I asked him why that late, he said no one will give me an opportunity and this is the time to learn. Therefore, I agreed and started working there from 18‑08‑2021. As Dhruva's brother‑in‑law had asked me to discuss some of my family problems with K.S.N. Rajesh. After I started working there for some time it was good and K.S.N. Rajesh told me that I am like his elder daughter and he would take care of me. One day when I was in the hostel at night I got a message from K.S.N. Rajesh asking me if I had food. I replied that I was having Maggie. He sent a message asking me to send a selfie picture of mine. I replied that it is inappropriate to ask for a picture. One day in the office in the evening at about 7.45/8.00 p.m. when I was about to leave, K.S.N. Rajesh told me that he was hungry and asked me to order food from a food delivery app. When I asked him what he wanted, he asked me to order ice cream. He also said that apart from ice cream he wanted to eat something else. I asked him Masala Dosa could be ordered for which he said okay. So I ordered ice cream and Masala Dosa from Ideal Cafe. When the food was delivered at about 8.30 p.m. K.S.N. Rajesh paid for the food. He asked us to sit in the balcony of the office and have the food. The Masala Dosa was kept on a plate and he insisted that I share Masala Dosa. I was hesitant as I usually do not share food. However, as he insisted I had a couple of bites of the Masala Dosa. One day when I was in the hostel I had severe migraine attack. K.S.N. Rajesh texted saying that the migraine was due to acidity and I should stop eating non‑veg as he does not eat non‑veg. For that I refused. But, he texted saying I should stop eating non‑veg for him. Thereafter, he started commenting on my display picture of WhatsApp saying I look cute and beautiful. He started calling me his beautiful daughter in the office. He also texted me saying he is a bad person for which I asked him why he was mentioning it to me. He also texted saying \I miss you\ \I like you the most in the office\. I do not have a dad. Therefore, K.S.N. Rajesh started considering himself as my father. But, I never told him to do so. In his office cabin 2‑3 times he would draw a flower on my hand. I would not react to it. One day when my mood was off, K.S.N. Rajesh took my hand and asked me \you are not going to tell your appa?\ I was offended and told him there was nothing. For that he said now you are hiding things from me. I replied that I will be okay. K.S.N. Rajesh knew that I and Dhruva are dating. My hostel is in Lalbagh and K.S.N. Rajesh's office is in Karangalpady. I would not get a bus immediately from Karangalpady and I would have to wait half an hour for the bus. Therefore, I requested K.S.N. Rajesh that if I could leave early at about 7.00 p.m. he got offended and told me that had I mentioned before he would have given me rickshaw money. He gave me rickshaw money and I would go to the hostel in rickshaw. K.S.N. Rajesh is highly influential and had mentioned that he knows many police. He has won a rape case and has bribed many judges. When my result was about to be declared he asked me if I need good marks as he had many contacts in Karnataka State Law University. One day for a case when I had gone with K.S.N. Rajesh to Udupi we had lunch at M.T.R. there Rajesh took my photos and told that he will not share it with anyone. Later he sent the photos on my WhatsApp. In the office I was close to another intern/senior Rashmi Mallya. K.S.N. Rajesh did not like Rashmi Mallya and he would insult her on her face and body‑shamed her and has mentioned a lot of bad things about her to me saying I do not know why she is like that. Rashmi was on study leave as she had her 10th semester exams. During that time K.S.N. Rajesh told a lot of things about Rashmi and manipulated me. Four to five days prior to 25‑09‑2021 when Rashmi came back I had a small fight with her. K.S.N. Rajesh has another office on the third floor of Essel Chambers where a person named Jacqueline D Silva works. During my fight with Rashmi she mentioned that she saw K.S.N. Rajesh in a compromising position. But I did not know the meaning of compromising position and I thought it to be some sort of a bribe. K.S.N. Rajesh had manipulated me so much that I started hating Rashmi and staying away from her. Two to three days later K.S.N. Rajesh fired Rashmi and another girl. After that he became relaxed and was happy that she had gone. On 24‑09‑2021 when I was texting Rashmi she mentioned that she had seen Rajesh in a compromising position with Jacqueline D Silva. I sent the screenshots of the WhatsApp conversation to Rajesh sir. He got angry and asked me why she was spreading rumours and why was my reply like that. I told him that in order to make Rashmi confess I had replied like that. On 25‑09‑2021 in the afternoon in the chamber we were discussing about a case where a boy did not have his parents. At that time only the two of us were in the cabin and the staff were outside. All of a sudden he got up from his chair and hugged me and whispered in my ear that don't worry I am there with you, I will take care of you. But I did not hug him back. That day I had a paper cut in my finger and I could not type fast and I had to remove my bandage as it was dirty. Rajesh had gone home for lunch and came back at 6.30 p.m. on that day I, another intern Ananth and advocates Divya and Neslin were there. First Ananth left and I asked him to wait but he did not wait for me and left the office. Therefore, Divya and Neslin also left even though I asked them to wait for me. That day Dhruva had come from Honnavara after one week and as it was Saturday I wanted to leave early and meet him. Just when I was about to finish and leave I heard a calling bell from Rajesh's chamber. As there was no one in the office I went to the cabin and told him that I was about to finish the work. But he told me enough of work for today. But I told him I needed five more minutes and he can correct the work on Monday. All of a sudden Rajesh put his both hands forward and told me \come baba\ I did not understand and gave my hands to him. He pulled me towards him and kissed me on my forehead. I was shocked. Rajesh held my hands tightly and rotated and made me sit on his lap and he wrapped his hands around my waist. I did not understand what was going on. He whispered in my ears \Love you, I want to have you\. He moved his hands towards my breasts and touched them. I could feel his penis erection. He held me tightly and touched my vagina. He removed my spectacles and kept them on the table. He held my face and tried to kiss me and also unbutton the shirt that I was wearing. I said no and removed his hands from me and picked up my spectacles as I cannot see without spectacles and my eyes were watery. There are two doors to the cabin, one for the staff and another for the clients. I ran through the staff door. When I was coming out of the cabin he told me not to mention it to anyone and if I mention it everyone will see my dead body. I ran to my table, picked up my bag and the phone which was put on charge along with the charger and ran out of the office and came down through the steps. I was shivering and I went to a small shop, Vinaya Automobiles and asked them if I could sit. Two persons in the shop gave me a chair and I sat there and called Dhruva to come immediately. The two persons asked me if I was okay. But I could not even reply to them and requested them to keep the shop open till Dhruva comes. Later, Dhruva came on his bike and we went on his bike to his brother‑in‑law Shivanandana's house. But Shivanandana was not at home and therefore, we sat outside his house. Meanwhile, I had many missed calls from Rajesh. So we decided we will receive the call and record his conversation. But in my phone if I record it says this call is being recorded. Therefore, we decided to receive the call on my phone and put it on loudspeaker and record from Dhruva's phone. At first I called him and asked what he wanted. He asked me if I reached and said sorry. That call was for one minute few seconds. Later, he called me and said sorry and told me that it was not intentional. He was crying and begging me to come back to the office and see him and told me that I can leave with the rest of the office in the evening. I asked him why should I come to office for which he said he should suffer. I told him if I want him to make him suffer I can make him suffer. He said he wants to suffer in his heart.
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I asked him if he had done something similar to anyone else and he said he had never done this to anyone. I told him that I would go to his house, Sharvaree, and inform his wife about him. I told him that he had two daughters and how could he behave like that. At last I told him not to call me again and that this was a warning. The call lasted for 11 minutes 55 seconds and was recorded. In the audio he accepted that he had made a mistake with me., After Dhruva and I went to eat, Dhruva sent me the audio and I remembered Rashmi mentioning on the previous day that she hoped I would leave the office soon. I called Rashmi and told her about the incident, which made her angry. I also sent the audio clip to her, a few other people close to me, and the staff who work at Rajesh's office., On 27 September 2021 in the morning I called Rajesh's wife and tried to tell her about the incident, but there was a communication gap as she does not know English and I do not know Kannada. As I make tea regularly I had kept my induction stove in the office., On 27 September 2021 I, along with Dhruva, Rashmi and my roommate Aadhya, went to the office. Dhruva and Aadhya stayed outside while Rashmi and I went inside. In the cabin Rajesh started pointing at Rashmi and said everything happened because of her. I told him to talk to me and not to talk to Rashmi. Rashmi asked if she should step outside, to which he replied that if she went outside he would start blaming her again. He also mentioned that he tried to console me. After that I wished him all the best, left the office and called his wife to ask her to check the CCTV footage. She requested me not to tell anyone. When I told her that I had the audio clip of the conversation with Rajesh she tried to defend him., On 24 September 2021 Vineeth Poojary had received cash and kept it on Rajesh's table. They said it was Rs.14 lakh in cash. At that time Rajesh was not there. Therefore, all of us took a selfie with Vineeth's phone and I also took a photo of the cash after asking for permission. After the incident I was scared to step out as Rajesh had threatened me. The audio clip got circulated and many of my college mates, including some who were interning with Rajesh, got to know about it. I asked them not to go to that office as I was concerned about them., In the month of October, Dhruva's brother-in-law called and asked me what I had done as the audio clip was now edited and circulated everywhere and it had reached the ministry. He told me that he could not help me because it was affecting his family and his family was more important. When I asked him to send the edited audio clip he said he did not have it. I called Dhruva and mentioned the conversation to him and he said we will see what happens. Later that day Dhruva called me on WhatsApp and told me that he had information that Rajesh might try to kill me. I got scared and did not step out of the hostel., On 11 October 2021 Dhruva told me that my phone was tapped by Rajesh. On 13 October 2021 Dhruva texted me in the morning saying that he wanted to meet me and his mother was also coming to meet me. At about 10.00 A.M. they came near my hostel and I went and sat inside the car. In the car they told me that it was Rashmi who had edited the audio clip and circulated it and that she had sent it to the Bar Association. They repeatedly told me that I should meet Rajesh and sort it out and that it was not a force. I called Rajesh and asked if I could meet him. He asked me to come to the office. Dhruva and his mother dropped me at his office. I met Rajesh who said it was Rashmi who had done the entire thing. I told him that I did not send the audio clip to the Bar Association and that I was willing to give it in writing, but I did not want to mention anyone's name. Rajesh typed a letter where he mentioned Rashmi's name. I put my signature and thumb impression on it., On 14 October 2021 Rashmi called and informed me that the women association had called her and wanted to meet her and that after that they would come and meet me. In the afternoon I got a call from Rashmi in which there was a lot of chaos and I heard Rashmi tell a lady that she should talk to me, to which the lady asked why she should talk to me and the call got disconnected. After that Rashmi's phone was not reachable and her WhatsApp was not working. Later, Dhruva's mother called me and informed me that Rashmi had given an apology letter. I was confused and went to meet Rajesh in his office. He told me that Rashmi had apologised and I requested him not to spoil my career as I intended to complete my law degree and write for the judiciary. That night she texted me on Instagram saying that she was taken to Urwa police station where she saw some documents with my signature and also Dhruva's photo. I texted Dhruva asking if he had signed any documents. He said yes. I was upset that he did not tell me about it. Dhruva told me that he would talk to Rajesh., On 15 October 2021 Dhruva went and met Rajesh. I do not know what happened there. Later when Dhruva called, his brother-in-law spoke to me saying if I wanted a copy of the affidavit. When I asked him to send a copy he denied it. I spoke to Dhruva telling him to return my things and I would return his things. So I went to Dhruva's flat where he told me that the affidavit stated that Rashmi had done it for personal revenge and that I had done it for money. Dhruva told me that he had not read the affidavit. Dhruva's mother told me that the case was closed. But I was defamed and could not keep quiet. It was mentioned by Dhruva that Rajesh manipulated the situation and Sub‑Inspector Bharati would arrest them if they did not cooperate. Therefore, I filed a complaint with the Women’s Police Station. After the statement of the complainant under Section 164 of the Criminal Procedure Code, the police on the basis of the evidence collected during investigation filed a charge sheet. The summary of the charge sheet, as obtained in column No.17, reads as follows: 376(J), 511, 354(J), 354, 354, 354(r), 506, 384, 388, 389, 204, 203, 212, 376(2)(P), 376(J), 511, 354(J), 354, 354, 354(r), 506, 384, 388, 389., The charge sheet is filed for offences punishable under sections 376, 376(2)(f), 376(2)(k), 376C(a), 511, 354A, 354B, 354C, 354D, 506, 384, 388, 389, 204, 203, 212, 120B, 179, 202 r/w 149 of the Indian Penal Code. The learned Magistrate took cognizance of the offences against accused 1 to 3 on 20‑08‑2022 and issued summons by the following order: Charge sheet submitted by Assistant Police Commissioner of Mangalore South Sub‑Division on 17‑08‑2022 against the accused A2 Ananth Bhat and A3 Achhutha K.B. for offences under sections 376, 376(2)(F), 376(2)(K), 388, 389, 204, 203, 212, 120(B), 179, 202 r/w 149 of the IPC. Accused Nos. 1 to 3 were released on anticipatory bail. The charge sheet and enclosures were perused and there was sufficient ground for proceeding. Hence cognizance was taken for the offences 202 r/w 149 of the IPC. The case was registered in Register No. III and summons were issued to the accused Nos. 1 to 3 by 13‑10‑2022., The submission restricts the challenge to taking cognizance for the offences punishable under sections 376, 376(2)(f), 376(2)(k), 376C(a) and 511 of the IPC. The issue now is whether interference is called for with the order of cognizance insofar as the aforesaid offences are concerned. The learned counsel for the petitioner has restricted his challenge only to the said offences. The offences alleged are those punishable for ingredients of section 375 which become punishable under section 376 of the IPC. Section 376(2)(f) and 376(2)(k) are alleged in the case at hand. Section 376(2) reads as follows: ‘376. Punishment for rape. (1) (2) Whoever, (a) being a police officer, commits rape … (f) being a relative, guardian or teacher, or a person in a position of trust or authority towards the woman, commits rape on such woman; … (k) being in a position of control or dominance over a woman, commits rape on such woman; …’, Section 511 of the IPC deals with punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. It reads: ‘511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one‑half of the imprisonment for life or, as the case may be, one‑half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.’ The petitioner admits the occurrence of the incident but contends that it was only preparation or attempt and not commission., Before embarking upon the consideration of the case of the petitioner with respect to the interplay between section 511 and section 376 of the IPC, it is appropriate to notice the law laid down by the Apex Court in cases of alleged rape where interplay between section 511 and 376 is elucidated. The Apex Court has held that the apparel of the accused can be a factor in determining the offence. In one case, an illiterate villager with his daughter‑in‑law came for medical treatment and the appellant and the doctor had other designs to exploit the situation. The court observed that the appellant’s scanty dress placed him within the ambit of the sections with which he was charged., Later, the Apex Court in the case of MADAN LAL v. STATE OF J & K held that the difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination. An attempt to commit rape is established when the accused goes beyond the stage of preparation, for example by forcibly rubbing his erected penis on the private parts of the girl without penetration, which constitutes an attempt under section 376 read with section 511 of the IPC., In UTTARAKHAND, the court held that the statement of the complainant victim revealed that the appellant‑accused had attempted to molest her on numerous occasions. The prosecution proved that the accused applied criminal force with the intention of outraging her modesty, thereby attracting culpability under section 354 IPC and, in conjunction with section 511, establishing an attempt to commit rape., The Apex Court in Aman Kumar v. State of Haryana held that to find an accused guilty of an attempt with intent to commit rape, the court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but intended to do so at all events, notwithstanding any resistance on her part. The attempt begins when the accused commences an act with the necessary intention., Considering the facts and circumstances, the courts below have rightly convicted and sentenced the accused. The interplay between sections 511 and 376 of the IPC shows that the attempt to commit an offence begins when the accused commences the act with the necessary intention, even if the act falls short of actual penetration.
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The petitioner pulled the hands of the complainant, kissed her, held her tight, forcefully made her sit on his lap, pressed against her chest, whispered in her ear 'love you and want to have you', grabbed her face, removed her spectacles, forcibly tried to undress her, grabbed her breasts, pressed his buttocks and touched all her private parts with bare hands. During all this the victim clearly noticed an erection of the petitioner's penis., The narration is not limited to the complaint; the statement recorded under Section 164 of the Code of Criminal Procedure, 1973 is a vindication of the narration in the complaint., The question is whether the conduct constitutes preparation and attempt, which is a thin line of difference, and would require evidence as to the subsequent action after preparation and attempt. This is undoubtedly a disputed question of fact., The contention of the learned counsel for the petitioner is that the victim, at the time she was examined by the doctor, which is an extra‑judicial statement, narrates that there was no sexual intercourse. That narration would again be a disputed question of fact. The CCTV footage and the voice sample, inter alia, which are all charge‑sheet material, would be a matter of evidence with regard to preparation and attempt. Therefore, these matters would be in the territory of seriously disputed questions of fact, as the incident has three ingredients—intention, preparation, attempt—and whether commission has happened is the fourth stage, which would be a matter of evidence., The Supreme Court of India, in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973, cannot delve deep at this stage into what transpired after intention, preparation and attempt, to allow the petition and set aside the order of taking cognizance. Outraging the modesty or all other acts performed by the petitioner would undoubtedly mean intention, preparation and attempt. I decline to accept that the commission of the offence should be examined by this Court on the basis of the charge‑sheet so filed and the statements made by all the witnesses. The statement of co‑interim/CW‑2 is also taken under Section 164 of the Code of Criminal Procedure, 1973. These are all to be examined during the trial. Interference at this stage is not called for., The learned counsel for the petitioner has laid emphasis on the order taking cognizance by contending that it suffers from non‑application of mind. I decline to accept the said contention in the light of the judgment of the Supreme Court of India in the case reported as 2021 SCC OnLine SC 1140, where a three‑judge bench considered this issue and held as follows:, The counsel for the appellant contended that the order of the Special Judge taking cognizance had not sufficiently demonstrated application of mind to the material placed before him. To substantiate this contention, the appellant relied on decisions in Pepsi Foods Ltd. v. Special Judicial Magistrate, Fakhruddin Ahmad v. State of Uttaranchal, Mehmood Ul Rehman v. Khazir Mohammad Tunda, Sunil Bharti Mittal v. Central Bureau of Investigation and Ravindranatha Bajpe v. Bangalore Special Economic Zone Ltd. The respondent argued that this Court has made a distinction on application of mind by the judge for the purpose of taking cognizance based on a police report on the one hand and a private complaint under Section 200 of the Code of Criminal Procedure on the other, and that the requirement of a demonstrable application of mind in the latter case is higher., The decision of this Court in Pepsi Foods Ltd. arose out of a complaint filed against the appellants under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1964. After recording primary evidence, the Magistrate passed orders summoning the appellants. The appellants instituted proceedings before the High Court under Section 482 of the Code of Criminal Procedure for quashing the summoning order. Justice D. P. Wadhwa, speaking for a two‑judge bench, observed that one of the modes by which a court can take cognizance of an offence is on filing of a complaint containing facts which constitute such offence. A Magistrate taking cognizance on complaint shall examine, upon oath, the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and signed by the complainant, the witnesses and the Magistrate (Sections 190 and 200 of the Code)., The Court held that summoning an accused in a criminal case is a serious matter. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate must carefully scrutinize the evidence brought on record and may himself put questions to the complainant and his witnesses to elicit answers and determine whether any offence is prima facie committed., In Sunil Bharti Mittal, the case arose out of alleged irregularities in the grant of an additional spectrum in 2002. The Central Bureau of Investigation filed a charge‑sheet in the court of the Special Judge. While taking cognizance, the Special Judge issued summons not only to the accused named in the charge‑sheet but also to three individuals who were alleged to be alter egos of the telecom companies. Justice A. K. Sikri, speaking for a three‑judge bench, held that before taking cognizance of an offence, the Magistrate should have applied his mind to the case to satisfy himself that the allegations, if proved, would constitute an offence. The Magistrate is bound to consider whether the material disclosed a prima facie case., In Mehmood Ul Rehman, a complaint was filed under Section 500 of the Indian Penal Code. The Magistrate ordered a bail warrant of Rs 15,000 and directed the accused to appear before the Court. The respondent filed a petition before the High Court seeking to quash the proceedings. The High Court rejected the petition. Before this Court, it was contended that the Magistrate had not applied his mind to the complaint to form an opinion on whether the allegations would constitute an offence. Relying on Pepsi Foods Ltd., this Court observed that the Magistrate ought to have applied his mind to the allegations and must be satisfied that the facts alleged would constitute an offence. The order of the Magistrate was set aside on the ground that it did not indicate an application of mind., In Fakruddin Ahmed, a complaint was lodged before the Judicial Magistrate alleging commission of offences under Sections 240, 467, 468 and 471 of the Indian Penal Code. The Magistrate directed the police to register the case and investigate, instead of following the procedure under Section 200 or 202 of the Code of Criminal Procedure. Based on the police report, cognizance was taken by the Magistrate. A two‑judge bench observed that the Magistrate must apply his mind before taking cognizance of the offence, but no observation was made that a cognizance order based on a police report needs to be well‑reasoned. The matter was remanded to the High Court for fresh consideration., In Afroz Mohammed Hasanfatta, a complaint was filed by the manager of a bank against a private limited company alleging conspiracy to import and sell rough and polished diamonds. An FIR was registered for offences under Sections 420, 465, 467, 468, 471, 477A and 120B of the Indian Penal Code. A charge‑sheet was submitted under Section 173 of the Code of Criminal Procedure against two persons and the respondent was referred to as a suspect. A supplementary charge‑sheet was filed, and cognizance was taken by the Magistrate. The High Court set aside the order of the Chief Judicial Magistrate taking cognizance. Justice Banumathi, speaking for a two‑judge bench, dealt with whether, while taking cognizance of an offence under Section 190(1)(b) of the Code of Criminal Procedure, the Court must record reasons for its satisfaction before issuing summons. Relying on Pepsi Foods Ltd., it was held that when cognizance is based on a police report, the Magistrate is not required to record reasons for issuing process; he only needs to be satisfied that there is sufficient ground for proceeding., The Special Judge took cognizance on the basis of a report submitted under Section 173 of the Code of Criminal Procedure and not on the basis of a private complaint. Therefore, the case is squarely covered by the decision in Afroz Mohammed Hasanfatta. The Special Judge noted the FIR, the witness statements and related documents before taking cognizance. It would be far‑fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for taking cognizance or that it does not indicate an application of mind. In the facts of this case, the order taking cognizance is not erroneous., The Supreme Court of India, in Kaptan Singh v. State of Uttar Pradesh, held that when the High Court exercises powers under Section 482 of the Code of Criminal Procedure to quash criminal proceedings, it must not interfere where the issue is shrouded with seriously disputed questions of fact. The High Court, however, quashed the criminal proceedings for offences under Sections 147, 148, 149, 406, 329 and 386 of the Indian Penal Code without considering the material collected during investigation, including statements of witnesses, the complainant and the accused, and the charge‑sheet filed thereafter. The High Court also failed to appreciate that the joint notarised affidavit dated 27‑10‑2010, in which Rs 25 lakhs is alleged to have been paid and possession transferred, is seriously disputed. The first agreement to sell dated 27‑10‑2010 states a sale consideration of Rs 25 lakhs with reference to payment of Rs 10 lakhs by cheques, while the joint affidavit states a consideration of Rs 35 lakhs. These discrepancies are triable issues that must be considered at trial. The High Court’s observation that no case is made out for the offence under Section 406 of the Indian Penal Code is premature, given the disputed nature of the payment and possession. Moreover, the High Court erred in observing that the original complaint has no locus because the complainant did not place a power of attorney on record., Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if exercising appellate jurisdiction and conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 of the Code of Criminal Procedure.
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However, when it is specifically stated in the First Information Report that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial., In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of Uttar Pradesh, 2020 Supreme Court Cases Online All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 of the Criminal Procedure Code is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by the Supreme Court in the present proceedings are to be treated as confined to the proceedings under Section 482 of the Criminal Procedure Code only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed., Prior to the judgment in KAPTAN SINGH, the Apex Court in the following: It being a settled principle of law that to exercise powers under Section 482 of the Criminal Procedure Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/First Information Report/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/First Information Report/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/First Information Report/charge-sheet and other documentary evidence, if any, on record., The question which is raised for consideration is that in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 of the Criminal Procedure Code. This has often been hotly debated before this Court and various High Courts. Though in a series of decisions, this question has been answered on several occasions by this Court, yet the same still comes up for consideration and is seriously debated., It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/First Information Report/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception., In the matter under consideration, if we try to analyse the guidelines of which a reference has been made, can it be said that the allegations in the complaint/First Information Report/charge-sheet do not make out a case against the second respondent or do they disclose the ingredients of an offence alleged against the second respondent or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion that there is sufficient ground for proceeding against the second respondent., In the light of the aforesaid judgments of the Apex Court, in the considered view of this Court, it is a matter of evidence, in a full‑blown trial for the petitioner to come out clean. The concerned trial court is yet to frame charges and there is no reason to believe that the trial court would not apply its mind while framing charges. Therefore, none of the submissions made by the learned counsel for petitioner merit any acceptance., Judged from this spectrum and analysed on the aforesaid prismatic analysis, the irresistible conclusion is that there is no warrant of interference at the hands of this Court at this juncture, to intervene, interdict or obliterate those allegations of rape, preparation and attempt for an offence against the petitioner, as any interference by this Court would be rendering plaudits to the wanton lust and vicious appetite of the petitioner. If a naive student of law enters the office of an advocate as an intern and in turn gets to face these horrendous acts, it would have a chilling effect on the entire practice and profession. Therefore, it is for the accused to come out clean in a full‑blown trial., For the aforesaid reasons, finding no merit in the petition, the petition stands dismissed. It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of the petitioner under Section 482 of the Criminal Procedure Code and the same shall not bind or influence the proceedings pending against him before the concerned trial court. Consequently, Interim Application No. 1 of 2022 also stands disposed.
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Shrimati Mayawati, daughter of Prabhu Dayal, former Chief Minister and President of the Bahujan Samaj Party, aged about 58 years, resident of No. 3, Tyag Raj Marg, New Delhi. Mr. Sathish Chandra Mishra, son of the late Justice T. S. Misra, aged 61 years, National General Secretary and Member of Parliament of the Bahujan Samaj Party, resident of No. 31 Aurangzeb Road, New Delhi. Petitioners (by Shrimati Pramila Nesargi, Senior Advocate as well as Sri C. Jagadish, Advocate)., The State of Karnataka, represented by the Jewargi Police Station, Jewargi, through the Additional State Public Prosecutor, and Assistant Director, Kannada and Culture Department, Sri Kandhagalla Hanumantharaya, Ranga Mandir, Station Road, Vijayapura, are respondents. This criminal petition is filed under Section 482 of the Criminal Procedure Code praying to quash the entire proceedings in Criminal Case Number 285 of 2014, pending on the file of the Judicial Magistrate First Class, Jewargi. The petitioners – accused Nos. 1 and 2 – have called into question the validity of the proceedings in Criminal Case Number 285/2014, which has subsequently been re‑numbered as Criminal Case Number 30754/2021 and assigned to the Forty‑second Additional Chief Metropolitan Magistrate, Bengaluru., It is the contention of Shrimati Pramila Nesargi, learned Senior Counsel appearing on behalf of the petitioners, that the FIR was registered pursuant to the information made out at Annexure‑C dated 27‑04‑2013 regarding offences under Sections 353 and 188 read with Section 34 of the Indian Penal Code. It is submitted that, insofar as the offence under Section 188 of the Indian Penal Code is concerned, in light of Section 195(1)(a)(i) of the Criminal Procedure Code, the complaint must be in writing and that the reference to a complaint under Section 195 of the Criminal Procedure Code would have to be construed as a complaint under Section 200 of the Criminal Procedure Code. Accordingly, it is submitted that Annexure‑C would not fulfil the legal requirement prescribed under Section 195 of the Criminal Procedure Code. Insofar as the offence under Section 353 of the Indian Penal Code is concerned, it is pointed out that a bare reading of the information at Annexure‑C would only make out that the accused are alleged to have snatched a currency bundle from the officer and that there is no use of criminal force., It is pointed out that, insofar as the Election Commission of India is concerned, a complaint was made by the accused to the Election Commission of India and they have made out a reply dated 30‑04‑2013 at Annexure‑H. Paragraph No. 5 of the communication made to the second petitioner reads as follows: “I am further directed to say that the Commission has seen the CD of video recording of the checking mentioned in your letter. The Commission found that the officers performed their duty with utmost courtesy, politeness and impartiality. The Commission also noted that during checking of the handbag of Ms. Mayawati, a certain amount of cash was found in her possession and the officers were unable to complete the process of counting of that money. As the process was not complete, the officers had to repeat the checking for the second time at the venue of the meeting. It may also be noted that when Ms. Mayawati gave the explanation that only Rs 50,000 out of Rs 1,00,000 said to be in her possession during checking belonged to her and the remaining amount belonged to the General Secretary of the party (i.e., yourself), no seizure of the cash was done by the checking team. It may be noted here that strict checking by various teams in the manner instructed by the Commission has already resulted in the seizure of cash of Rs 13.08 crores in Karnataka so far since the election process started and this money would certainly have disturbed the level playing field and purity of the election process.”, Accordingly, it is submitted that the assertion that the search could not be completed is contrary to the record and, if that were so, the information at Annexure‑C is obviously contrary to the factual assertion as the Election Commission of India in its communication has clearly pointed out the completion of checking and that the explanation of the first petitioner was accepted., The learned High Court Government Pleader, however, opposes the grant of any relief and contends that the very act of preventing the counting of the currency notes at the first instance would make out a case insofar as Section 353 of the Indian Penal Code is concerned., The matter was heard on both sides., Insofar as the complaint made regarding the offence under Section 188 of the Indian Penal Code is concerned, clearly what is required under Section 195 of the Criminal Procedure Code is the filing of a complaint in terms of Section 200 of the Criminal Procedure Code. The information at Annexure‑C does not satisfy the test and requirement of a complaint under Section 195 of the Criminal Procedure Code and, accordingly, proceedings insofar as the offence of Section 188 of the Indian Penal Code are liable to be set aside on that sole ground. It is apt to refer to the relevant paragraph of the decision of this Court in Criminal Petition Number 3964/2021 dated 07‑06‑2021, which reads: “Clearly what is to be noted is that the information that is given should be to the Magistrate by way of a complaint under Section 2(d) of the Criminal Procedure Code and, accordingly, on this ground itself, taking cognizance by the Magistrate is irregular. It is clear that what is envisaged by the bar under Section 195 of the Criminal Procedure Code is that no court could take cognizance with respect to the offence under Section 188 of the Indian Penal Code except on a complaint in writing of the public servant concerned. The word ‘complaint’ is to be read in terms of Section 2(d) of the Criminal Procedure Code which indicates that a private complaint should be made to the Magistrate. This being the admitted position of law, the petition deserves to be disposed of.”, Insofar as Section 353 of the Indian Penal Code is concerned, it must be noted that there has to be the use of criminal force or assault. In the facts of this case, though there is an assertion that the complainant was prevented from counting the currency notes, the only assertion in the complaint is that the currency note bundle was not permitted to be counted and was snatched away from the hands of the official. That version, even if accepted, would not be sufficient to amount to criminal force as envisaged under Section 353 of the Indian Penal Code., The version of the Election Commission of India in its communication dated 30‑04‑2013, which is not a disputed document, makes clear that the process of counting was not complete during the first instance and subsequently, at the venue of the meeting, the explanation of the first petitioner regarding the amount was accepted: Rs 50,000 (Rupees Fifty Thousand Only) out of Rs 1,00,000 (Rupees One Lakh Only) was stated to be in her possession and the remaining belonged to the General Secretary of the Party. That explanation has been accepted and, accordingly, the communication of the Election Commission of India states that in light of the acceptance there was no seizure of cash by the checking team. Accordingly, it is clear that the process of subjecting the petitioners to questioning regarding the amount has been completed and the explanation has been accepted. The aspect of further questioning at the venue of the meeting does not appear in the information at Annexure‑C and, as the meeting also took place on the same day, the information at Annexure‑C appears, on its face, questionable in light of the reference made by the Election Commission of India. For the purpose of invoking Section 353 of the Indian Penal Code, there has to be use of criminal force and, even going by the version made out at Annexure‑C, it cannot be stated that the ingredient of use of criminal force has been made out., In view of the explanation of the petitioners having been accepted by the Election Commission of India, the continuance of the present proceedings would not secure the ends of justice., Accordingly, the petition is allowed. The proceedings in Criminal Case Number 285/2014 (renumbered as Criminal Case Number 30754/2021) pending on the file of the Forty‑second Additional Chief Metropolitan Magistrate, Bengaluru are set aside. As an amended cause title has been filed by the petitioners, the same is taken note of.
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This appeal is preferred by the appellant being aggrieved by the judgment dated 28 October 2013 passed by the learned Special Sessions Judge (Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Cases) cum Additional District Judge, Warangal, in Special Court Number 48 of 2009 wherein the appellant was convicted for offences punishable under Sections 417 and 306 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. For the offence under Section 306 of the Indian Penal Code, he was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs 1,000, in default of which to undergo simple imprisonment for a period of three months. For the offence under Section 417 of the Indian Penal Code, he was sentenced to undergo simple imprisonment for a period of six months. For the offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, he was sentenced to undergo imprisonment for life and to pay a fine of Rs 500, in default of which to undergo simple imprisonment for two months. All the sentences were directed to run concurrently., The facts of the case are that the deceased daughter of Witness 1 belongs to the Nayakapu caste which comes under the Scheduled Tribe category. The accused, identified as Criminal Appeal Number 975 of 2013, was a toddy tapper. For three years he used to climb toddy trees situated adjacent to the house of the de facto complainant and also used to talk with the deceased. In the year 2007, while the deceased went to attend nature calls, the accused caught hold of her and dragged her to commit rape. When she made cries, the neighbours gathered and the accused escaped from the place and a criminal case was registered against him. During the pendency of the trial, the accused requested the deceased to compromise the case as he was ready to marry her. The deceased agreed to settle the matter and compromised the case. Subsequently the accused developed illegal contacts with the deceased and deceived her by saying that he would marry her after the marriage of his sister. Later he fixed his marriage with a woman of Palampet Village. On learning this, on 10 February 2009 at 11:00 hours, the deceased, her younger brother Goskula Thirupathy and Mogilli went to the house of the accused and asked him about the marriage; the accused replied that he would not marry her and abused them. On the same day evening at about 18:00 hours, the accused came to her house and told that his marriage was fixed with another woman and he could not marry the deceased as she belongs to Nayakapu caste and asked her to consume poison and die. The deceased immediately went inside the house and consumed pesticide poison. While she was being shifted to the community health centre, she died. The police investigated the case and a charge sheet was filed for the offences punishable under Sections 417 and 306 of the Indian Penal Code and Sections 3(1)(x), 3(1)(xii) and 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, and convicted the accused as stated supra., This appeal is filed stating that though the prosecution failed to prove the alleged offences committed by the accused, the trial court erroneously convicted the appellant. The trial court ought to have seen that the punishment for the offence under Section 306 of the Indian Penal Code can be extended up to ten years and it is not a minimum of ten years. Therefore, the offence under Section 306 would not be applicable for punishing the accused for the offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, which prescribes a punishment of ten years or more. Consequently, the trial court should not have convicted the accused for the said offence as the evidence on record does not disclose that the accused abetted the victim on the ground that she belongs to a Scheduled Tribe community. The trial court should have noticed the contradictions in the prosecution evidence which create doubt about the alleged abetment of the victim by the accused in committing suicide., While the prosecution failed to prove the ingredients under Section 415 of the Indian Penal Code for punishing the accused, the alleged act of abetting the victim does not satisfy the ingredients under Section 306 of the Indian Penal Code; therefore, the trial court ought not to have convicted the accused for the offences under Sections 417 and 306 of the Indian Penal Code. As such, the appellant prays that this High Court acquit the appellant., Heard Sri P. Prabhakar Reddy, learned counsel for the appellant, and Sri T. V. Ramana Rao, learned Additional Public Prosecutor., Learned counsel for the appellant submitted that the allegation that the accused denied to marry the deceased was not established before the trial court. The marriage of the accused was fixed with another girl. Further, as admitted by Witness 1, the marriage of the deceased was also fixed with another person. Therefore, when the deceased and the accused were engaged with other persons, the question of the accused denying to marry the deceased does not arise. He further submitted that the evidence on record was not sufficient to convict the accused for the offences under Sections 417 and 306 of the Indian Penal Code, and nowhere was it illustrated that the accused denied the marriage with the deceased. Accordingly, the appellant prays that this High Court allow the appeal by acquitting the accused., Learned Additional Public Prosecutor submitted that the evidence of Witnesses 1 to 4 was sufficient to prove the guilt of the accused. He further submitted that the evidence of Witnesses 1 to 4 was consistent and remained intact. Accordingly, he prayed that this High Court dismiss the appeal as there were no infirmities in the judgment of the trial court., On going through the rival contentions and the evidence on record, the following facts are noted: The de facto complainant is the mother of the deceased (Witness 1). The maternal uncle of the deceased was examined as Witness 2. The neighbours to the house of Witness 1 were examined as Witnesses 3 and 4. Witnesses 1 to 4 were alleged direct witnesses to the incident dated 10 February 2009. Witness 5 is the panchayat witness for examination of the scene of offence. Witness 6 was one of the elders before whom the panchayat relating to the incident was raised. Witness 7 is the eye‑witness to the incident of outraging the modesty of the deceased. Witness 8 is the Tahsildar who issued the caste certificate of Witness 1. Witness 9 is the investigating officer. Witness 10 is the photographer. Witness 11 is the Civil Assistant Surgeon at the Community Health Centre, Mulug, who conducted the autopsy of the deceased. Out of the eleven witnesses, Witness 7 has not supported the prosecution case., The evidence of Witness 1 (mother of the deceased) shows that her daughter consumed poison and died in February; at that time the deceased was about twenty‑five years old and unmarried. Her evidence relates to the relationship between the deceased and the accused. She deposed about a previous criminal case filed against the accused by the deceased and about sexual intimacy that continued for two months prior to her death. She also stated that the accused supplied the pesticide poison to the deceased. Witness 2 (brother of Witness 1) deposed on similar lines, stating that he accompanied Witness 1 to the accused’s house on 10 February 2009 at about 11:00 hours and questioned the accused about his marriage being fixed with another lady; the accused refused to marry the deceased, stating that she belongs to Nayakapu caste and asked her to go anywhere. The witnesses returned home intending to lodge a complaint. On the same day at about 18:00 hours, the accused came to the house of Witness 1; by that time Witnesses 1, 2, the deceased and one T. Ranadheer Reddy were present. The accused abused the deceased, saying his marriage was fixed elsewhere, and when questioned about the fate of the deceased, he asked her to die by consuming pesticide poison, which she did., Witness 3, an eye‑witness, deposed about previous incidents and the sexual intimacy of the accused with the deceased. He stated that on the evening of the incident, at about 17:30 to 18:30 hours, he heard a commotion and, upon reaching the house of Witness 1, saw Witnesses 1 and 2 and Mogilli there; later the accused arrived and said he would not marry the deceased as his marriage was fixed with another lady and asked the deceased to die by consuming pesticide poison. Witness 4, also an eye‑witness, gave a similar account, stating that at about 18:00 hours he and Witness 3 went to the house of Witness 1, enquired about the situation, and the accused arrived and repeated the same statement that he would not marry the deceased because she belongs to Nayakapu caste and asked her to die by consuming pesticide poison., Witness 5 is the panchayat witness for examination of the scene of offence. Witness 6 deposed that there was an affair between the accused and the deceased and, about two years earlier, the deceased had informed him that the accused harassed her mentally and physically, saying he wanted to marry her; he conveyed this to her brother Chinna Rajaiah. They called the accused to their house and advised him not to interfere with the deceased. Later the deceased informed him that the accused committed rape on her and a criminal case was filed, which ended in acquittal as both parties compromised and the accused promised to marry the deceased. He later learned that the deceased committed suicide because the accused denied to marry her. Although Witness 7 was examined as an eye‑witness, he did not support the prosecution case. Witness 8 is the Tahsildar who issued the caste certificate of Witness 1. Witness 9 is the investigating officer. Witness 10 is the photographer. Witness 11 is the Civil Assistant Surgeon who conducted the autopsy and stated that the cause of death was consumption of organofluoro poison., The prosecution tried to establish the case based on the evidence of Witnesses 1 to 4, alleging that there was an affair between the deceased and the accused, that the accused outraged her modesty, and that the criminal case filed thereafter ended in acquittal after the parties compromised and the accused promised to marry the deceased., The criminal case was filed in 2007 and the alleged incident occurred in 2009, creating a gap of two years. The prosecution case is that after the acquittal, the accused and the deceased continued their relationship, whereas the evidence of Witness 6 indicates that two years prior to the incident the deceased complained that the accused was harassing her and the matter was pacified. Witness 1, in cross‑examination, admitted that there was a marriage proposal for her daughter with a person of Gunturupally Village and that wedding cards had been printed, but the proposal was cancelled. According to Witness 1, the marriage of the accused with another girl was settled three months prior to the death of the deceased. Although Witness 1 deposed that the accused supplied pesticide poison to the deceased, this was not stated in the complaint she filed or in her statement before the police. Witness 1’s evidence shows that three months prior to the incident the accused’s marriage was fixed with another girl, whereas Witness 2 stated that ten days prior to the incident the accused’s marriage was fixed with another girl. To discredit the evidence of Witness 3, the defence counsel submitted that there was a previous dispute between the accused and Witness 3. Witness 6, in his cross‑examination, deposed that because Witness 1 failed to look for any alliances for the deceased, she committed suicide, but during cross‑examination by the public prosecutor he denied his earlier deposition that the accused’s refusal to marry the deceased caused her suicide. Hence, the evidence of Witness 6 was not useful to the prosecution., Section 306 of the Indian Penal Code reads: ‘Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.’, To prove the offence under Section 306 of the Indian Penal Code, the prosecution must prove that the deceased committed suicide due to the abetment of the accused. Section 107 of the Indian Penal Code defines abetment as a person abets the doing of a thing if he (i) instigates any person to do that thing; (ii) engages with one or more other persons in any conspiracy for the doing of that thing; or (iii) by an act or illegal omission, causes the doing of that thing. In the present case, there were several proved disputes between the accused and the deceased. The evidence of Witness 1 shows that the marriage of the deceased was fixed with another person and the same was cancelled after wedding cards were printed, indicating that the compromise between the accused and the deceased was based only on the assurance given by the accused that he would marry the deceased., Whether mere uttering of the words ‘go and die’ is sufficient to prove instigation under Section 107 of the Indian Penal Code was considered by the Hon’ble Apex Court in Sanju Alias Sanjay Singh Sengar v. State of Madhya Pradesh, which observed that mere words uttered by the accused to the deceased to ‘go and die’ were not even prima facie enough to instigate the deceased to commit suicide. The Court in Mahendra Singh v. State of Madhya Pradesh held that the charge and conviction for an offence under Section 306 IPC is not sustainable merely on the allegation of harassment of the deceased, and that none of the ingredients of abetment are attracted by the statement of the deceased. In Ramesh Kumar v. State of Chhattisgarh, the Court held that a word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation., In the case on hand, although there were disputes between the accused and the deceased, the prosecution must prove that only at the instigation of the accused did the deceased commit suicide. The prosecution story shows sexual intimacy between the accused and the deceased that continued till two months prior to her death. Moreover, Witness 1, mother of the deceased, admitted in cross‑examination that they had settled the marriage of the deceased with another person and the same was cancelled after printing of wedding cards, showing that she had agreed to marry someone other than the accused; therefore, the refusal of the accused to marry could not be the reason for suicide., The prosecution mainly relied on the evidence of Witnesses 2 to 4, while the evidence of Witness 3 can be discarded as there were previous disputes between the accused and Witness 3. Witness 6 was an independent witness who admitted in cross‑examination that because Witness 1 failed to look for alliances for the deceased, she died, but later denied that the deceased died due to the abetment of the accused. Consequently, the evidence of Witness 6 cannot be relied upon fully., In State of West Bengal v. Orilal Jaiaswal and Another, the Hon’ble Apex Court cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence in the trial court for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life. The Court held that ordinary petulance, discord and differences in domestic life common to society should not be held to have induced suicide unless the accused’s conduct was of such a nature as to create a reasonable apprehension of death or serious injury., Mere uttering of the words ‘go and die’ will not constitute the offence under Section 306 of the Indian Penal Code. Even if the prosecution story is accepted that the appellant told the deceased to ‘go and die’, that alone does not satisfy the ingredients of instigation. The word ‘instigate’ denotes incitement or urging to do some drastic or inadvisable action with the presence of mens rea, which is the necessary concomitant of instigation. It is common knowledge that words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. In the present case, the prosecution has failed to prove mens rea; the evidence on record is not sufficient to prove the offences under Sections 306 and 417 of the Indian Penal Code., The trial court concluded that the accused instigated the deceased by stating ‘go and die’, and convicted him for the offences under Sections 417 and 306 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, without discussing the evidence in proper perspective. This judgment dated 28 October 2013 is not legally sustainable and suffers from irregularity. Consequently, it is liable to be interfered with to the extent of setting aside the conviction for offences punishable under Sections 417, 306 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act., In view thereof, this High Court is of the opinion that the evidence on record is not sufficient to convict the appellant as the prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt is therefore given to the appellant. The appeal is allowed. The impugned judgment dated 28 October 2013 in Special Court Number 48 of 2009 passed by the learned Special Sessions Judge (Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Cases) cum Additional District Judge, Warangal, is set aside. The bail bonds of the accused shall stand cancelled. He is set at liberty forthwith, if he is not required in any other crime or case. As a sequel, any miscellaneous petitions pending in this appeal shall stand closed. Date: 23 September 2023 (Pre‑delivery judgment of the Division Bench prepared by the Hon’ble Smt Justice K. Sujana).
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The State of Maharashtra (Appellant) versus Kuldeep Subhash Pawar, resident of Bambawade, Taluka Tasgaon, District Sangli (Respondent). Mr. N. B. Patil, Advocate appearing for the Appellant-State. Mr. Aashish Satpute, appointed as amicus curiae for the Respondent., The Respondent was acquitted by the Judicial Magistrate First Class Court, Tasgaon on 24 August 2011 in State Criminal Court No. 274 of 2009. He was charged with responsibility for the death of a bicycle driver and one bullock. The Respondent is the driver of a Tata Sumo jeep bearing registration number MH-10-AG/3440. The incident occurred on 1 November 2009 at approximately 8.30 a.m. on a public road situated on the road from Manerajuri to Kumtha village in the village of Seema 1/5, Uplavi Taluka, Tasgaon. The first informant was driving a bullock cart, while Balaso Krushna Mane, resident of Uplavi village, was riding a bicycle. The Tata Sumo driver collided with the bullock cart and the bicycle. The incident was reported to Tasgaon Police Station., Initial investigation was carried out by Prosecution Witness No. 5, Assistant Sub-Inspector Mahavir Bapu Chougale, who found negligence on the part of the Respondent. Consequently, a First Information Report was registered on 1 November 2009 for offences punishable under Sections 279, 337, 338, 304-A of the Indian Penal Code and Section 134 of the Motor Vehicles Act., During trial, five witnesses were examined: Prosecution Witness No. 1, Vasant Desai, owner of the bullock cart; Prosecution Witness No. 2, Jotiram Patil, a passerby and eye witness; Prosecution Witness No. 3, Subhash Chavan, a Police Patil who visited the spot after receiving information about the accident; Prosecution Witness No. 4, Balasaheb Patil, a spot panch; and Prosecution Witness No. 5, Mahavir Chougale, the investigating officer., It is important to note that Prosecution Witness No. 1 and Prosecution Witness No. 2 gave opposite statements regarding the direction of travel of the bullock cart. According to Prosecution Witness No. 1, the bullock cart was moving from the northern side to the southern side (Seema 2/5 direction). According to Prosecution Witness No. 2, the bullock cart was moving from the southern side to the northern side., During cross‑examination, Prosecution Witness No. 2 admitted that he had not previously told the police that he had observed the incident from a distance of 50 feet. He is a resident of the same village as the bullock cart owner, Prosecution Witness No. 1. Consequently, the version of Prosecution Witness No. 1 is given greater weight., The direction in which the Tata Sumo driver was travelling is also disputed. Prosecution Witness No. 1 states that the Tata Sumo came from the northern side, i.e., from the Sangli side. The spot panchnama records that the bullock cart was lying on the southern side of the road and facing east. This aligns with the statement of Prosecution Witness No. 1 that the bullock cart was moving from north to south. However, Prosecution Witness No. 4, the panch witness, stated that the bullock cart was found towards the northern side of the road, opposite to the description in the spot panchnama. Prosecution Witness No. 2 described the village of Sangli as being towards the western side of Seema 3/5, while Uplavi village, where the bullock cart was moving, was on the southern side. If the Tata Sumo driver was coming from the Sangli side, that would be from the western side, whereas Prosecution Witness No. 1 says he was coming from the northern side., With assistance from both sides, an attempt was made to reconcile documentary and oral evidence regarding direction, but no definitive conclusion could be reached., It is noteworthy that the investigating officer did not prepare a map or rough sketch, and the trial court did not record directions accurately in the evidence. If confusion existed, the trial court could have clarified the matter by questioning the witnesses, as permitted by law., It has also come on record that tea stalls are situated around the spot, and Advocate Shri Satpute submitted that statements of persons in those stalls were not recorded. The Police Patil is not an eye witness to the incident; his evidence is limited to observations made after the incident. Prosecution Witness No. 2 gave a direction contrary to that of Prosecution Witness No. 1, making his testimony difficult to believe., Therefore, no evidence corroborates the version of Prosecution Witness No. 1. While he stated that the Tata Sumo travelled at speed, this must be assessed in light of other available material. An act of driving is punishable only when it is rash and negligent. Rashness implies unwarranted speed, whereas negligence involves failure to take proper care and attention while driving., The consequence of the accident was the death of one bullock and the bicycle driver. For want of evidence, the trial court could not conclude that the Respondent’s driving was rash or negligent. This Court is likewise unable to reach that conclusion. Consequently, this Court has no alternative but to confirm the findings of the trial court, and the appeal is dismissed., The Office is directed to pay the necessary fees to Advocate Shri Satpute for the assistance rendered.
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Subordinate Courts COVID-19 pandemic Functioning of Subordinate Courts in full capacity in the State of Tamil Nadu and Union Territory of Puducherry. Instructions issued regarding reference Madras High Court Official Memorandum in ROC No. 1363/2020/RG/Subordinate Courts, dated 1 September 2020 and 24 September 2020. In furtherance to the Madras High Court Official Memorandum, the Honourable Administrative Committee of the Madras High Court, on assessing the prevailing situation of COVID-19 panoramic in the State of Tamil Nadu and Union Territory of Puducherry, and the present functioning of Subordinate Courts in the State of Tamil Nadu and Union Territory of Puducherry, directs that no limitations or restrictions are centrally imposed for functioning of the Subordinate Courts in full capacity (pre‑COVID‑19 pandemic stage) with effect from 8 February 2021., It is open to the Principal District Judges to decide on the mode and manner of functioning, depending on the situation prevailing in their respective district or even in a particular taluk. The Standard Operating Procedures to be followed by the Subordinate Courts in the State of Tamil Nadu and in the Union Territory of Puducherry are annexed herewith. All the Principal District Judges and District Judges in the State of Tamil Nadu and the Chief Judge, Puducherry shall ensure better functioning of Subordinate Courts without compromising on the COVID‑19 protocol., With regard to opening of Bar Associations’ rooms, chambers and canteens inside the premises of the Subordinate Courts, the same will be considered by the Madras High Court after three weeks from the Madras High Court commences physical hearing in full capacity., Before resuming physical functioning of Subordinate Courts in full capacity (pre‑COVID‑19 stage), entire court halls, chambers of Honourable Presiding Officers, entire office space and corridors, as well as advocates’ chambers, are to be thoroughly cleaned and sanitized by taking all requisite measures., The local administration is to be requested to depute a sufficient number of paramedical staff for doing thermal screening of all judicial officers, staff, advocates and litigants entering the Madras High Court campus. Sanitisation of corridors, office space, rest rooms, etc., has to be done at least twice a day, for which necessary arrangements must be made., There shall be one or two entry points for officers, staff and litigants, depending upon the local requirement. Everyone who enters the Madras High Court campus must strictly follow the advisories and directives of the Central and State Governments regarding maintaining hygiene, social distancing and avoiding overcrowding in the campus., Entry into the Madras High Court campus shall be permitted only after hand washing with liquid soap at the entry points, screening by thermal scanners and wearing of masks. Persons with symptoms of COVID‑19 during thermal screening shall be denied entry. Persons without masks shall be denied entry into the Madras High Court campus., Advocates, litigants and advocate clerks shall be permitted entry to the Madras High Court campus and court halls only in the following manner: only the advocates whose names are found in the cause list and at most one client per case; parties who are summoned by the court or required to be present to adduce evidence or witness in a case; registered advocate clerks are permitted for carrying heavy case files of the advocates to whom they are attached. Overcrowding of advocates or parties in court halls, sections, corridors and any common place is strictly prohibited., Principal District Judges and Chief Judicial Magistrates shall take necessary steps for smooth functioning of Subordinate Courts through physical hearing with an option of video conference by following the Standard Operating Procedure and guidelines issued by the Government of India and the State Government., The above Standard Operating Procedure is only indicative in nature. The Principal District Judges may modify or relax any condition or impose any restriction depending upon the local requirements, subject to guidelines issued for prevention of COVID‑19 by the State and Central Governments.
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Reportable Criminal Appeal No 561 of 2022 (Arising out of Special Leave Petition (Criminal) No 1788 of 2022) Mallada K Sri Ram Appellant(s) Versus State of Telangana & Ors Respondent(s) Dr Dhananjaya Y Chandrachud, J, Leave granted. This appeal arises from a judgment dated 25 January 2022 of a Division Bench of the High Court for the State of Telangana dismissing the writ petition seeking a writ of habeas corpus., The brother of the appellant worked as an employee with an entity named M/s Ixora Corporate Services, Banjara Hills, Hyderabad. On 13 October 2020, a complaint was lodged on behalf of the company with the Station House Officer, Banjara Hills, alleging that K Mahendar, another employee, had opened a salary account with the Federal Bank without authorization and in conspiracy with the detainee collected an amount of Rs 85 lakhs from 450 job aspirants. It was alleged that the co‑accused who was in charge of the HR Department had, in collusion with the detainee, hatched a plan to collect money from individuals by misrepresenting that they would be given a job at the company and collected money from aspirants for opening a bank account and supplying uniforms., The first FIR, FIR No 675 of 2020, was registered on 15 October 2020 at Police Station Banjara Hills against K Mahendar (A‑1) and the detainee (A‑2) for offences punishable under Sections 408, 420, 506 and 120B of the Indian Penal Code, 1860. On 17 December 2020, another FIR, FIR No 343 of 2020, was registered at Police Station Chatrinaka against the detainee for offences punishable under Sections 408, 420 and 120B IPC based on similar allegations. The detainee was arrested in the first case on 17 December 2020 and in the second case on the execution of a provisional terror warrant on 4 January 2021. In the first case, the detainee was released on bail on 8 January 2021 by an order dated 31 December 2020, subject to the condition that he appear before the Station House Officer, Banjara Hills, on Mondays between 10.30 am and 5 pm till the filing of the charge‑sheet. In the second case, the detainee was released on bail by an order dated 11 January 2021, subject to the condition that he appear before the Station House Officer, Chatrinaka, on Sundays between 2 pm and 5 pm for a period of three months. The charge‑sheet has been submitted in the first case., An order of detention was passed against the detainee on 19 May 2021 under Section 3(2) of the Telangana Prevention of Dangerous Activities, Bootleggers, Dacoits, Drug‑Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White‑Collar or Financial Offenders Act, 1986. The order of detention was challenged before the High Court of Telangana in a petition under Article 226 of the Constitution. The Division Bench of the High Court dismissed the petition by its impugned judgment and order dated 25 January 2022., Mr A. Sirajudeen, Senior Counsel appearing for the appellant, submits that there is ex facie non‑application of mind by the detaining authority while passing the order of detention. He points out that the detainee had been granted bail almost five months prior to the order of detention, with conditions requiring regular reporting to the police station until the charge‑sheet was filed or for a stipulated period, which had already expired by the time the detention order was passed. He further argues that the order of detention is based on stale material, as the acts alleged in the FIRs occurred seven and five months earlier, and that ordinary criminal law is sufficient to deal with the alleged violations., Mr Mohith Rao, counsel for the respondents, submits that the acts attributed to the detainee form part of an organized white‑collar crime scheme in which job aspirants were induced to part with money on the promise of future employment, and therefore the High Court was correct in holding that the order of detention should not be interfered with., At the outset, it is necessary to set out the relevant provisions of the Telangana Prevention of Dangerous Activities Act, 1986. Section 2 provides definitions, including that acting in any manner prejudicial to the maintenance of public order means when a person engaged in any of the enumerated offences is making preparations that are likely to affect adversely the maintenance of public order. Section 2(x) defines a white‑collar or financial offender as a person who commits or abets offences punishable under the Telangana Protection of Depositors of Financial Establishment Act, 1999 or under Sections 406 to 409, 417 to 420 or Chapter XVIII of the Indian Penal Code, 1860. Section 3 empowers the Government to make detention orders against such persons to prevent them from acting in a manner prejudicial to public order, with an initial period not exceeding three months, extendable by further periods of up to three months. Section 13 stipulates that the maximum period of detention, once confirmed, shall be twelve months., The order of detention dated 19 May 2021 notes that the detainee is a white‑collar offender under Section 2(x) whose cheating of gullible job aspirants has caused large‑scale fear and panic among unemployed youth, thereby acting in a manner prejudicial to public order and disturbing peace, tranquillity and social harmony. The order also cites apprehension that the detainee may violate bail conditions and could commit similar offences, posing a threat to public order unless prevented by detention., The detainee was released on bail on 8 January 2021 by the Additional Chief Metropolitan Magistrate, Hyderabad, subject to reporting to the Station House Officer on a stipulated day each week until the charge‑sheet was filed. In the second case, bail was conditioned on appearing once every week on Sunday for three months from 11 January 2021. Consequently, the bail conditions were fulfilled by April 2021. The order of detention dated 19 May 2021 failed to take these material aspects into account and therefore suffers from non‑application of mind., The first FIR was registered on 15 October 2020 and the second on 17 December 2020. Bail was granted on 8 January 2021. The detention order was passed on 19 May 2021 and executed on 26 June 2021, i.e., nearly seven months after the first FIR and five months after the second FIR. The order is evidently based on stale material and shows non‑application of mind, as the conditions imposed while granting bail were duly fulfilled and there was no further violation. The counter‑affidavit filed before the High Court expressed only an apprehension that the acts for which the FIRs were registered might be repeated in the future, without a live and proximate link to justify detention after such a lapse., Supreme Court of India notes that the distinction between a disturbance to law and order and a disturbance to public order has been settled by a Constitution Bench in Ram Manohar Lohia v. State of Bihar. The Court held that not every disorder amounts to a disturbance of public order; only those affecting the community at large qualify. Public order, if disturbed, must lead to public disorder. An act may affect law and order without affecting public order, and the power to detain under preventive detention statutes is intended for threats to public order, not merely law and order., Supreme Court of India observed in Banka Sneha Sheela v. State of Telangana that while an apprehension of cheating gullible persons may justify cancellation of bail, it does not meet the standards for preventive detention unless there is a demonstrable threat to the maintenance of public order. The Court pointed out that the detention order was based solely on the fact that the detainee had obtained anticipatory bail in multiple FIRs, a matter that can be addressed through ordinary criminal procedure, not preventive detention., Supreme Court of India held in Sama Aruna v. State of Telangana that reliance on stale material for a detention order under the Telangana Act, 1986 amounts to punishment without trial. The Court emphasized that a preventive detention order must be based on a reasonable prognosis of future behaviour grounded in a live and proximate link to past conduct, not on events that occurred many years earlier., Supreme Court of India notes that in the last five years it has quashed over five detention orders under the Telangana Act for incorrectly applying the standard for maintenance of public order and relying on stale material. At least ten detention orders have been set aside by the High Court of Telangana in the past year, indicating a callous exercise of preventive detention powers. The respondents are directed to review pending detention orders before Advisory Boards, High Courts and this Court and evaluate their fairness against lawful standards., We accordingly allow the appeal and set aside the impugned judgment of the High Court dated 25 January 2022. The order of detention passed against the detainee on 19 May 2021 is hereby quashed and set aside. Any pending applications, if any, stand disposed of., Petition for Special Leave to Appeal (Criminal) No 1788 of 2022 (Arising out of the impugned final judgment and order dated 25‑01‑2022 in Writ Petition No 17120/2021 passed by the High Court for the State of Telangana at Hyderabad) dated 04‑04‑2022. The petition was called on for hearing. For the petitioner: Mr A. Sirajudeen, Senior Advocate, etc. For the respondents: Mr P. Mohith Rao, Advocate, etc. Supreme Court of India made the following: Leave granted. In terms of the signed reportable judgment, the appeal is allowed. The order of detention passed against the detainee on 19 May 2021 is quashed and set aside.
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Case No.: Bail Application 1623/2021. Advocate for the Petitioner: Mr. K N Choudhury. Advocate for the Respondent: Additional Public Prosecutor, Assam. Hearing held on 13 August 2021 through virtual mode. Heard Mr. K N Choudhury, learned Senior counsel appearing for the accused petitioner, as well as Mr D Das, learned Additional Public Prosecutor, Assam appearing for the State respondent. Also heard Ms S Sarma, learned counsel for the informant., By this petition under Section 439 of the Criminal Procedure Code, the accused-petitioner, namely Utsav Kadam, has prayed for grant of bail in connection with Session Case No. 36/2021 (arising out of North Guwahati Police Station Case No. 53/2021) pending before the Court of the learned Additional Sessions Judge, Kamrup (Rural), Amingaon, charge-sheeted under Sections 376, 328, 307 and 120B of the Indian Penal Code. The scanned copy of the record of Session Case No. 36/2021 (corresponding to North Guwahati Police Station Case No. 53/2021) along with the case diary, as called for, is placed before the Sessions Court., Mr K N Choudhury, learned Senior counsel appearing for the accused petitioner, contends that after completion of investigation, the police submitted a Part Charge-sheet under Sections 376, 328, 307 and 120B of the Indian Penal Code and a Supplementary final charge-sheet against the accused, who is a young youth aged about 21 years and is a brilliant student of B.Tech pre-final year of the Indian Institute of Technology, Guwahati, in chemical engineering. He further contends that the accused has been in judicial custody for about 120 days in connection with the case, which is entirely based on assumption of commission of the offence of rape without any credible evidence. He also states that as the investigation has already been completed and there is no chance of him jumping the course of justice, being a student of the Indian Institute of Technology, Guwahati, further continuation of his detention for the purpose of trial may not be warranted and would cause further damage to his academic pursuit., Strongly opposing the bail application, Mr D Das, learned Additional Public Prosecutor, contends that the allegations made in detail by the victim girl, who is a second‑year B.Tech Chemical Engineering student of the Indian Institute of Technology, Guwahati, in her First Information Report dated 07 April 2021 and in the statements recorded under Sections 161 and 164 of the Criminal Procedure Code, and further, the charge-sheet prima facie establish a clear case in favour of the victim girl. He also contends that if liberty of bail is granted to the accused, the trial of the case is certain to be hampered, which may occasion gross injustice to the victim., Appearing on behalf of the informant/victim girl, Ms S Sarma, learned counsel, vehemently opposes granting bail to the accused in such a serious offence, which is against society. Ms Sarma cites the ratio of the judgments relating to the factors to be considered while granting bail rendered by the Honourable Supreme Court in Mahipal Vs. Rajesh Kumar alias Polia and Anr., reported in (2020) 2 SCC 118; Masroor Vs. State of Uttar Pradesh and Anr., reported in (2009) 14 SCC 286; Anil Kumar Yadav Vs. State (NCT of Delhi) and Anr., reported in (2018) 12 SCC 129; Sangitaben Shaileshbhai Datanta Vs. State of Gujarat and Anr., reported in (2019) 14 SCC 522; Prasanta Kumar Sarkar Vs. Ashis Chatterjee and Anr., reported in (2010) 14 SCC 496; Aman Kumar and Anr. Vs. State of Haryana, reported in (2004) 4 SCC 379; Narayanamma (Kum) Vs. State of Karnataka and Ors., reported in (1994) 5 SCC 728; Narender Kumar Vs. State (NCT of Delhi), reported in (2012) 7 SCC 171; State of Maharashtra and Anr. Vs. Madhukar Narayan Mardikar, reported in (1991) 1 SCC 57; State of Punjab Vs. Gurmit Singh and Ors., reported in (1996) 2 SCC 384; State of U.P. through CBI Vs. Amarmani Tripathi, reported in (2005) 8 SCC 21; Anwari Begum Vs. Sher Mohammad and Anr., reported in (2005) 7 SCC 326, emphasizing that in the backdrop of facts and evidence collected, the accused does not deserve to be released on bail in this charge‑sheeted case., The First Information Report reveals the allegations, inter alia, that on 28 March 2021 at around 9 p.m., the accused, a student of the Indian Institute of Technology, Guwahati, lured the informant/victim female student of the same institution to Aksara School premises, in the pretext of discussing her responsibility as the Joint Secretary of the Finance and Economic Club of the students of the Indian Institute of Technology, Guwahati, and after making her unconscious by forcibly administering alcohol, raped her. The victim regained consciousness at around 5 a.m. the next morning at Guwahati Medical College and Hospital, where she underwent treatment and forensic examination. She was discharged from Guwahati Medical College and Hospital on 29 March 2021 and then shifted to the Hospital at IIT Guwahati where she underwent treatment till 03 April 2021., I have given anxious consideration to the submissions made by the learned counsel of both sides and the citations referred to by the learned counsel appearing for the informant/victim as well as the relevant case record along with the case diary. It is pertinent to mention that it is judicially well settled that while dealing with a bail application, the Sessions Court is not called upon to discuss the merits or demerits of the evidence against the accused, but some reasons for prima facie concluding while bail is being granted need to be indicated in brief. On hearing the learned counsel for both sides with reference to the relevant documents such as the First Information Report, medical report and statements under Sections 161 and 164 of the Criminal Procedure Code, the contents of the charge‑sheet, the Fact Finding Committee Report etc., there is a clear prima facie case as alleged against the accused petitioner. However, as the investigation in the case is completed and both the informant/victim girl and the accused are the State's future assets being talented students pursuing technical courses at the Indian Institute of Technology, Guwahati, who are young in the age group of 19 to 21 years only and further, they are hailing from two different states, continuation of detention of the accused in the interest of trial of the case, if charges are framed, may not be necessary. A perusal of the list of witnesses cited in the charge‑sheet shows no possibility of the accused tampering with evidence or influencing them directly or indirectly if released on bail., For the reasons set forth above, it is directed that the accused, named above, shall be released on bail of Rupees Thirty Thousand (Rs. 30,000) with two sureties of the like amount to the satisfaction of the learned Sessions Judge, Kamrup at Amingaon, subject to the following conditions: (i) That the accused/petitioner shall continue to appear before the learned trial Court on all dates to be fixed from time to time till the case is disposed of; (ii) That the accused/petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Police Officer or the Court; and (iii) That the accused/petitioner shall not leave the territorial jurisdiction of the Court of the learned Sessions Judge, Kamrup at Amingaon without prior written permission of the learned Sessions Judge, Kamrup at Amingaon. Any violation of the above conditions will warrant cancellation of the bail order after due process of law., With the above directions, the bail application stands disposed of.
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Writ Petition (Criminal) No. 154 of 2020 Vinod Dua vs. Union of India & Others. This petition under Article 32 of the Constitution of India prays for the following principal reliefs: (a) Quash First Information Report No. 0053 dated 06.05.2020 registered at Police Station Kumarsain, District Shimla, Himachal Pradesh. (b) Direct that henceforth First Information Reports against persons belonging to the media with at least ten years standing shall not be registered unless cleared by a committee to be constituted by every State Government, the composition of which shall comprise the Chief Justice of the High Court or a Judge designated by him, the Leader of the Opposition and the Home Minister of the State., First Information Report No. 0053 dated 06.05.2020 was registered pursuant to a complaint made by respondent No. 3 herein. The complaint alleged that on 30 March 2020, Mr. Vinod Dua, in his programme 'The Vinod Dua Show' on YouTube, made unfounded and bizarre allegations. At 5 minutes and 9 seconds of the video, he stated that Prime Minister Narendra Modi had used deaths and terror attacks to garner votes. At 5 minutes and 45 seconds, he claimed that the government did not have enough testing facilities and made false statements about the availability of Personal Protective Equipment and that ventilators and sanitizer exports were stopped only on 24 March 2020. The video link is: s://atch?vvijFDtgvv8. The complaint contended that these allegations were false, that the statements incited violence amongst citizens, disturbed public tranquility, created panic, and could lead to non‑compliance with the lockdown., The FIR dated 06.05.2020 referred to the two segments of the talk show uploaded on 30.03.2020 and alleged that the actions of the petitioner amounted to offences punishable under sections 124A, 268, 501 and 505 of the Indian Penal Code, 1860. The transcript of the relevant episode includes a discussion on the coronavirus pandemic, the government's preparedness, the national lockdown, and various statements about testing facilities, personal protective equipment, ventilator and sanitizer exports, and the migration of labourers. The petitioner also criticised the government's response and alleged that the media were toting the line of the government., A notice for appearance dated 11.06.2020 was issued by the Station House Officer of Police Station Kumarsain, District Shimla, Himachal Pradesh, under section 160 of the Code of Criminal Procedure, directing Mr. Vinod Dua, journalist, HW News Network, to appear for interrogation on or before 13 June 2020 at 10 a.m. The petitioner responded on 12.06.2020 stating that, as per Himachal Pradesh COVID‑19 guidelines dated 11.05.2020, any person coming from a red zone must undergo institutional quarantine for fourteen days. He resides in New Delhi, a red zone, and is 66 years old with multiple health conditions, making travel life‑threatening. He offered to cooperate through email or online mechanisms., The Supreme Court of India, in an order dated 14.06.2020, directed that pending further orders, the petitioner shall not be arrested; he may extend full cooperation through video conferencing or online mode; and the Himachal Pradesh Police may conduct investigation, including interrogation at his residence, after giving prior notice of twenty‑four hours and complying with social distancing norms prescribed during the COVID‑19 pandemic. The investigating officer shall remain personally present if the open court hearing is resumed or be available for video conferencing., The petitioner raised the following grounds: (A) The video content constitutes pure critical analysis of the functioning of the Government and cannot be said to be offences under sections 124A, 268, 501 and 505 of the Indian Penal Code. (B) The decisive ingredient for establishing the offence of sedition under section 124A Indian Penal Code is an act that brings the Government established by law into hatred or contempt and incites violence or public disorder, which is absent in the present case. (C) The petitioner seeks guidelines from this Supreme Court of India regarding lodging of First Information Reports against media persons of a particular standing, citing the judgments in Jacob Mathew v. State of Punjab (2005) 6 SCC 1 and Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1., The affidavit in reply filed on behalf of the State referred to sections 52 and 54 of the Disaster Management Act, 2005. Section 52 provides punishment for false claim: whoever knowingly makes a claim known or believed to be false for obtaining any relief, assistance, repair, reconstruction or other benefits consequent to a disaster shall be punishable with imprisonment up to two years and also with fine. Section 54 provides punishment for false warning: whoever makes or circulates a false alarm or warning as to a disaster or its severity, leading to panic, shall be punishable with imprisonment up to one year or with fine., The investigating agency reported that after finding the complaint disclosed a cognizable offence, the FIR was registered. The complainant was called to the police station on 07.05.2020 but did not appear; he appeared on 08.05.2020 and produced a DVD containing the telecast dated 30.03.2020, which was seized. On 11.05.2020, the investigating officer visited the Cyber Crime Police Station and sent a notice under section 91 of the Code of Criminal Procedure to Google and YouTube requesting information regarding the URL of the channel and the post., Respondent No. 3 submitted that the episode of 'The Vinod Dua Show' telecast on YouTube (Episode No. 255) made false allegations regarding the preparedness for the COVID‑19 pandemic, violating sections 124A, 268, 501 and 505 of the Indian Penal Code. He argued that the content had a tendency to create disturbance of public peace against the Government established by law and that the offences were clearly made out. He also referred to other episodes uploaded on 02.03.2020, 31.03.2020, 01.04.2020 and 01.06.2020 to demonstrate a pattern of false statements., Senior counsel Mr. Vikas Singh, appearing for the petitioner, submitted that the statements in the FIR that the Prime Minister used threats and terror acts to garner votes were factually incorrect. He argued that the basic allegations should be examined in light of the law laid down in Kedar Nath Singh v. State of Bihar (1962) 2 SCR 769, and that section 124A Indian Penal Code would not be attracted. He contended that as a journalist, the petitioner was entitled to critical analysis of the Government's functioning, and that the ingredients constituting offences under sections 501 and 505 Indian Penal Code were not established. Consequently, the criminal proceedings were an abuse of process and violative of fundamental rights guaranteed under the Constitution of India and should be quashed., The Solicitor General of India, Mr. Tushar Mehta, submitted that the petition under Article 32 seeking quashing of the FIR may not be entertained and the petitioner should resort to remedies available under the Code of Criminal Procedure. He stated that the allegations in the FIR must be presumed true at this stage and the matter should be allowed to be investigated. He argued that the petitioner’s statements could cause panic, citing the statement about possible food riots, and that such action would be punishable under sections 52 and 54 of the Disaster Management Act. He noted that the episode was uploaded on 30.03.2020 when migrant workers were beginning to move towards their hometowns, jeopardising health and safety., Additional Solicitor General S.V. Raju, appearing for the Union of India, submitted that the matter also falls under section 188 read with section 511 of the Indian Penal Code, as the statements constituted incitement to disobey lockdown orders dated 31.03.2020 passed by the Supreme Court of India. He referred to section 195 of the Code of Criminal Procedure regarding cognizance. He cited the Press Council of India (2010 Edition) Norms of Journalistic Conduct, particularly paragraph 39, which requires facts and data relating to epidemics to be checked thoroughly from authentic sources and published without sensationalism or unverified facts. He held that the petitioner’s conduct was wanting in this respect., The petitioner’s awards and recognitions were highlighted: Padma Shri for Excellence in Journalism awarded by the President of India; B.D. Goenka Award for Excellence in Journalism instituted by Late Shri Ram Nath Goenka and adjudicated by a jury comprising Justice Sujata Manohar, Justice Bakhtawar Lentin and Jurist Nani Palkhiwala; Haldighati Award for Excellence in Journalism by the Maharana Mewar Foundation; RedInk Lifetime Achievement Award by the Mumbai Press Club; and an honorary Doctor of Letters conferred by ITM University, Gwalior., The petitioner relied on the judgment in Jacob Mathew v. State of Punjab (2005) 6 SCC 1, affirmed by the Constitution Bench in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1, to argue that a preliminary inquiry could be validly insisted upon in cases involving journalists, similar to the protection afforded to medical professionals. He contended that explanations 2 and 3 under section 124A Indian Penal Code and the exception under section 505 Indian Penal Code exempt media persons acting in good faith from the offences., The Ministry of Home Affairs issued a public order on 24.03.2020, invoking the Disaster Management Act, 2005, stating that in view of the lockdown measures, there were possibilities of rumor‑mongering, including those relating to shortage of food and other essential services and commodities.
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In this context, it is imperative that all State Governments and Union Territory Administrations take necessary steps to suitably publicise through all available means that food, medical and civil supplies, and other essential services will be maintained and that adequate supplies are available in the country. It is also requested that the provisions of the Guidelines issued for containment of the COVID‑19 epidemic, annexed to Ministry of Home Affairs Order No. 40‑3/2020‑D dated 24‑03‑2020, be suitably disseminated amongst the public. All measures may be taken to allay apprehensions and maintain peace and tranquillity., On 26‑03‑2020 the Prime Minister announced the Pradhan Mantri Garib Kalyan Anna Yojana under which five kilograms of rice or wheat (according to regional dietary preferences) per person and one kilogram of dal would be provided to each family holding a ration card. This successful scheme covers eighty crore people and has now been extended till November 2020. It is recognised inter alia by the World Health Organization as the largest food‑security programme in the world., Two days before the impugned telecast by the petitioner, the Ministry of Home Affairs issued Consolidated Guidelines on 28‑03‑2020. According to the guidelines, the offices of the State and Union Territory Governments, their autonomous bodies and corporations shall remain closed, except for agencies engaged in procurement of agricultural products, including Minimum Support Price operations, and mandis operated by the Agricultural Produce Market Committee or as notified by the State Government. Commercial and private establishments shall be closed, except shops—including ration shops under the Public Distribution System—dealing with food, groceries, fruits and vegetables, dairy, meat, fish, animal fodder, fertilizers, seeds and pesticides; district authorities may encourage and facilitate home delivery to minimise movement. All transport services—air, rail and roadways—will remain suspended, except for transportation of essential goods, cross‑land border movement of essential goods including petroleum products, LPG, food products and medical supplies, and intra‑ and inter‑state movement of harvesting and sowing‑related machines such as combined harvesters and other agricultural or horticultural implements., The orders dated 24‑03‑2020 and the Consolidated Guidelines of 28‑03‑2020 are both orders duly promulgated by public servants, and disobedience to them by any person renders that person liable to punishment under Section 188 of the Indian Penal Code. In Alakh Alok Srivastava vs. Union of India, the Supreme Court of India, Coram: Hon'ble Chief Justice and Hon'ble Justice Nageswara Rao, held that disobedience to an order promulgated by a public servant would result in punishment under Section 188 of the Indian Penal Code and that an advisory which is in the nature of an order made by a public authority attracts the same provision., In spreading manifestly false information and rumour‑mongering regarding shortages of food, medical and other essential services, the petitioner has contravened the said orders of 24‑03‑2020 and 28‑03‑2020. Neither in the petition nor in his written submission has the petitioner denied that he had knowledge of the advisory of 24‑03‑2020, the consolidated guidelines issued by the Ministry of Home Affairs on 28‑03‑2020, or the Pradhan Mantri Garib Kalyan Anna Yojana announced on 26‑03‑2020., The petitioner telecast on 30‑03‑2020, as well as at least three subsequent telecasts from April to June 2020, dealt with the prevailing COVID situation and the Government's response to the developing pandemic. While dealing with such a sensitive subject on more than one occasion, it was incumbent upon the petitioner, as a responsible journalist and by virtue of the Press Council norms, to keep himself abreast of Government orders and guidelines pertaining to the pandemic. His telecast and written submission indicate that he had express knowledge of certain Government notifications issued prior to the telecast of 30‑03‑2020., At the outset, we must consider whether the instant challenge raised through a petition under Article 32 of the Constitution and the prayers made in the petition can be entertained when the investigation into the alleged crime has not yet resulted in a report under Section 173 of the Code of Criminal Procedure., It is the contention of the respondents that the petitioner be relegated to the remedies under the Code rather than entertain the instant petition under Article 32 of the Constitution. Since the first prayer seeks quashing of the FIR, reliance is placed on the decision of this Court in Arnab Ranjan Goswami vs. Union of India and Others, where relief was granted against multiple FIRs arising from the same television show, but this Court refused to exercise jurisdiction under Article 32 for the purpose of quashing the basic FIR registered at Mumbai. The Court observed that any reasonable restriction on fundamental rights must satisfy the proportionality standard, and subjecting an individual to numerous proceedings in different jurisdictions on the basis of the same cause of action is not the least restrictive and effective method of achieving the legitimate State aim., The issue concerning the registration of numerous FIRs and complaints covering different States is distinct from the investigation arising from FIR No. 164 of 2020 at N.M. Joshi Marg Police Station in Mumbai. The petitioner, in the exercise of his right under Article 19(1)(a) of the Constitution, is not immune from an investigation into that FIR, which has been transferred from Police Station Sadar, District Nagpur City to N.M. Joshi Marg Police Station in Mumbai. A balance must be drawn between the exercise of a fundamental right and the investigation for an offence under the Code of Criminal Procedure. All other FIRs in respect of the same incident constitute a clear abuse of process and must be quashed., We hold that it would be inappropriate for the Supreme Court of India to exercise its jurisdiction under Article 32 for the purpose of quashing FIR No. 164 of 2020 being investigated at N.M. Joshi Marg Police Station in Mumbai. The petitioner must be relegated to the remedies available under the Code of Criminal Procedure and the High Court. The petition does not present exceptional grounds to bypass the procedure under the Code, and there is no reason to entertain it under Article 32 for the relief of quashing the FIR., The further contention is that there are no exceptional grounds for entertaining the petition under Article 32 nor any reason to bypass the procedure under the Code. Reliance is placed on the decision of this Court in Amish Devgan vs. Union of India and Others, which in turn referred to the decisions in State of Himachal Pradesh vs. Pirthi Chand and Another, State of Uttar Pradesh vs. O.P. Sharma, and Arnab Ranjan Goswami., We respectfully agree with the aforesaid ratio. Ordinarily we would have relegated the petitioner and asked him to approach the concerned High Court for appropriate relief, but in the present case detailed arguments on maintainability and merits have been addressed by both sides, and therefore we do not deem it appropriate to permit the petitioner to open another round of litigation., There is a line of cases in which this Court, while exercising jurisdiction under Article 32, has quashed the concerned FIRs, including Vijay Shekhar and Another vs. Union of India and Others; Rini Johar and Another vs. State of Madhya Pradesh and Others; Monica Kumar and Another vs. State of Uttar Pradesh and Others; Priya Prakash Varrier and Others vs. State of Telangana and Another; and Laxmibai Chandaragi B. and Another vs. State of Karnataka and Others., In Priya Prakash Varrier, the nature of relief claimed was set out in paragraph 1 of the decision, where the Court relied upon the dictum of the Constitution Bench in Ramji Lal Modi vs. State of Uttar Pradesh that for an offence to fall within Section 295‑A of the Indian Penal Code, the crime must be committed with deliberate and malicious intention of outraging the religious feelings of a class. Finding such element completely absent, the relief was granted. The Court observed that Section 295‑A penalises only the aggravated form of insult to religion perpetrated with deliberate and malicious intention, which is a reasonable restriction in the interests of public order under Article 19(2)., In Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, the Court considered the justification for the registration of an FIR under Section 295‑A and quashed the FIR for an offence under that provision., In view of the aforesaid, we allow the writ petition and quash FIR No. 34 of 2018. We also direct that no FIR under Section 154 or any complaint under Section 200 of the Code of Criminal Procedure should be entertained against the petitioners because of the picturisation of the song. No order as to costs is made., In the celebrated case of Romesh Thappar v. State of Madras, a Constitution Bench of the Supreme Court of India dealt with the preliminary objection that the petitioner should first approach the High Court under Article 226. The Court held that Article 32 provides a guaranteed remedial right for the enforcement of fundamental rights and that the Supreme Court, as protector and guarantor of those rights, cannot refuse to entertain applications seeking protection against infringements of such rights., The Constitution Bench in Daryao and Others v. State of Uttar Pradesh reiterated that the fundamental right guaranteed by Article 32(1) is a very important safeguard for the protection of citizens' fundamental rights, and that the Supreme Court has the solemn task of upholding those rights., In Jagisha Arora vs. State of Uttar Pradesh and Another, the Supreme Court of India entertained a petition under Article 32 against an order of remand passed by the jurisdictional magistrate, despite the contention that the order should be challenged under the Code of Criminal Procedure. The Court, exercising power under Article 142, directed the immediate release on bail of the petitioner’s husband, noting that the order was excessive., In Union of India vs. Paul Manickam and Another, the Court highlighted that many unscrupulous petitioners approach the Supreme Court under Article 32 directly without first approaching the appropriate High Court. It is appropriate that the High Court having jurisdiction over the order of detention be approached first, unless satisfactory reasons are shown for bypassing it., We have therefore considered the instant case in the light of the principles emanating from all the aforementioned decisions. Apart from the fact that the right claimed by the petitioner is under Article 19(1)(a) of the Constitution, the second prayer made by the petitioner can effectively be considered only in a writ petition. Relegating the petitioner to file a petition under Article 226 may not be appropriate; the issue must ideally be settled by this Court, and we proceed to deal with the merits of both prayers., After stating that in his talk show uploaded on 30‑03‑2020, the petitioner asserted that the Prime Minister used deaths and terror attacks to garner votes and that the Prime Minister garnered votes through acts of terrorism, the FIR stated: \This directly amounts to inciting violence amongst the citizens and will definitely disturb public tranquillity.\
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This is an act of instigating violence against the Government and the Prime Minister. It was also stated, the petitioner creates panic amongst the public and disturbs public peace by trying to spread false information, such as the Government does not have enough testing facilities which is absolutely false. According to the First Information Report, by making such false statements, Mr. Vinod Dua spread fear amongst the people. This video will only create a situation of unrest amongst the public which will result in panic and people not obeying the lockdown to come out and hoard essentials which is absolutely unnecessary. The rumours were spread with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquillity., On facts, it has been established that the statements attributed to the petitioner that the Prime Minister had used deaths and terror attacks to garner votes or that the Prime Minister had garnered votes through acts of terrorism were not made in the Talk Show. The true translation of the original episode in Hindi has been placed on record. No such assertions find place in the true translation nor were any objections raised that the translated version was in any way incorrect. The petitioner did say that the air strikes by India on Balakot and attacks on Pathankot and Pulwama were used as political events to garner votes but no allegations were made against the Prime Minister as was stated in the First Information Report. It is true that some portions of the Talk Show assert that there were not enough testing facilities; that there was no information as to the quantum of PPE kits, suits, N95 masks and three‑ply masks that were available in the country; that the respiratory devices and sanitizers were being exported till 24th March 2020 instead of keeping them for use in the country; that the supply chain was disrupted due to blockage of roads; and that migrant workers were a huge issue. It was also asserted that with supply chain being closed, some people feared food riots, which had not happened in the country. These statements were the subject of considerable debate by the learned counsel and the principal question is whether these statements were merely in the nature of critical appraisal of the performance of the Government or were designed to create unrest amongst the public., The scope of Section 124A of the Indian Penal Code was considered by a Constitution Bench of the Supreme Court of India in Kedar Nath Singh v. State of Bihar. The conviction of Kedar Nath Singh under Sections 124A and 505(b) of the Indian Penal Code was affirmed by the High Court; and the view taken by the High Court was paraphrased as follows: In the course of his judgment, the learned Judge observed that the subject‑matter of the charge against the appellant was nothing but a vilification of the Government; that it was full of incitements to revolution and that the speech taken as a whole was certainly seditious. It is not a speech criticising any particular policy of the Government or criticising any of its measures. He held that the offences both under Sections 124A and 505(b) of the Indian Penal Code had been made out., This Court dealt with the decisions in the Bangobasi case (Queen Empress v. Jogendra Chunder Bose) and Queen Empress v. Bal Gangadhar Tilak as follows: The first case in India that arose under the section is the Bangobasi case (Queen Empress v. Jogendra Chunder Bose) which was tried by a jury before Sir Comer Petheram, Chief Justice. While charging the jury, the learned Chief Justice explained the law in these terms: Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man's sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr. Jackson cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill‑will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling., The next case is the celebrated case of Queen Empress v. Bal Gangadhar Tilak which came before the Bombay High Court. The case was tried by a jury before Justice Strachey. The learned Judge, in the course of his charge to the jury, explained the law in these terms: The offence as defined by the first clause is exciting or attempting to excite feelings of disaffection to the Government. Disaffection means simply the absence of affection. It means hatred, enmity, dislike, hostility, contempt and every form of ill‑will to the Government. Disloyalty is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government. The amount or intensity of the disaffection is immaterial except perhaps in dealing with the question of punishment: if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. It is immaterial whether any feelings of disaffection have been excited or not by the publication in question. The charge is that each prisoner has actually excited feelings of disaffection to the Government. If you are satisfied that he has done so, you will find him guilty. But even if the charge is not made out, the offence consists in exciting or attempting to excite certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would fall within Section 124A, and probably within other sections of the Penal Code. Even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section. Some distinguished persons have thought that there can be no offence under the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce any course of action such as rebellion or forcible resistance, the test of guilt., The Court then considered the further proceedings taken up after Bal Gangadhar Tilak was found guilty. The jury, by a majority of six to three, found Shri Bal Gangadhar Tilak guilty. Subsequently, he applied under clause 41 of the Letters Patent for leave to appeal to the Privy Council. The application was heard by a Full Bench consisting of Farran, Chief Justice, Candy and Strachey, Judges. It was contended before the High Court at the leave stage, inter alia, that the sanction given by the Government was not sufficient in law because it had not set out the particulars of the offending articles, and that the Judge misdirected the jury as to the meaning of the word disaffection insofar as he said that it might be equivalent to absence of affection. Regarding the second point, the Full Bench expressed that the major ground was that the section cannot be said to have been contravened unless there is a direct incitement to stir up disorder or rebellion. That appears to go beyond the words of the section. The minor point was that Justice Strachey, in summing up, stated that disaffection meant the absence of affection. Although that phrase might have misled the jury if taken alone, in context it was linked to the law laid down by Sir Comer Petheram in Calcutta in the Bangobasi case, where the Chief Justice used the words contrary to affection. Therefore the Full Bench could not certify that this was a fit case for appeal. It was not alleged that there had been a miscarriage of justice. After these observations, the Full Bench refused the application for leave., The case was then taken to the Privy Council by way of application for special leave to appeal to the Judicial Committee. Before the Lordships of the Privy Council, counsel assisted by Mayne, W.C., Bannerjee and others contended that there was a misdirection as to the meaning of Section 124A of the Penal Code, that the offence had been defined in terms too wide to the effect that disaffection meant simply absence of affection and that it comprehended every possible form of bad feeling to the Government. Reference was made to the observations of Petheram, Chief Justice, in Queen Empress v. Jogendra Chunder Bose. It was also contended that the appellant's comments had not exceeded what in England would be considered within the functions of a public journalist, and that the misdirection complained of was of the greatest importance not merely to the affected person but to the whole of the Indian press and to all subjects of Her Majesty; and that it injuriously affected the liberty of the press and the right to free speech in public meetings. Despite the strong appeal, the Lord Chancellor, delivering the opinion of the Judicial Committee, dismissed the application, observing that the whole of the summing up did not warrant dissent, and that, in view of the Rules observed in granting leave to appeal in criminal cases, the case did not raise questions deserving further consideration by the Privy Council (see Gangadhar Tilak v. Queen Empress)., Thereafter, the decision of the Federal Court in Niharendu Dutt Majumdar v. King Emperor was dealt with and it was noted that the statement of law made by the Federal Court was not accepted by the Privy Council. While dealing with a case arising under Rule 34(6)(e) of the Defence of India Rules under the Defence of India Act, 1939, Sir Maurice Gwyer, Chief Justice, speaking for the Federal Court, observed that the language of Section 124A of the Indian Penal Code, which was in pari materia with that of the Rule, had been adopted from English law, and referred with approval to the observations of Fitzgerald, J., in the case quoted above. He stated that the first and most fundamental duty of every Government is the preservation of order, since order is a condition precedent to civilisation and the advance of human happiness. This duty may sometimes be performed in a way that makes the remedy worse than the disease, but it does not cease to be an obligation. The offence of sedition is the answer of the State to those who, for the purpose of attacking or subverting it, seek to disturb its tranquillity, create public disturbance and promote disorder, or incite others to do so. Words, deeds or writings constitute sedition if they have this intention or tendency, and they may also constitute sedition if they seek to bring the Government into contempt. The offence is not made to minister to the wounded vanity of the Government, but because where Government and law cease to be obeyed, anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence. The acts or words complained of must either incite disorder or must be such as to satisfy reasonable men that that is their intention or tendency. This statement of law was not approved by the Judicial Committee of the Privy Council in the case of King Emperor v. Sadashiv Narayan Bhalerao, which observed that there was no statutory definition of sedition in England and the meaning had to be gathered from many decisions., The conflict between the decision of the Federal Court and that of the Privy Council was thereafter noticed by the Supreme Court of India as follows: Thus, there is a direct conflict between the Federal Court decision in Niharendu case and the Privy Council decisions from India and the Gold Coast. Either view can be taken and supported on good reasons. The Federal Court decision considered the pre‑existing common law of England in respect of sedition. It does not appear that the rulings of the Privy Council had been brought to the notice of the Federal Court judges., The scope of Section 124A of the Indian Penal Code was considered thus: The section was amended by the Indian Penal Code Amendment Act (IV of 1898). As a result of the amendment, the single explanation to the section was replaced by three separate explanations as they stand now. The section, as it now stands, is the result of several amendments of 1937, 1948 and 1950, as a result of constitutional changes by the Government of India Act, 1935, the Independence Act of 1947 and the Constitution of India, 1950. Section 124A, as it has emerged after successive amendments, reads as follows: Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with transportation for life or any shorter term to which fine may be added or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1: The expression disaffection includes disloyalty and all feelings of enmity. Explanation 2: Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section. Explanation 3: Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section., This offence, generally known as the offence of sedition, occurs in Chapter VI of the Indian Penal Code, headed Offences against the State. This species of offence against the State was not an invention of the British Government in India, but has been known in England for centuries. Every State, whatever its form of Government, must have the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feeling of disloyalty as has the tendency to lead to disruption of the State or to public disorder. In England, the crime has been described by Stephen in his Commentaries on the Laws of England, 21st Edition, volume IV, as conduct which, on the one hand, falls short of treason, and on the other does not involve the use of force or violence. The law must reconcile the right of private criticism with the necessity of securing the safety and stability of the State. Sedition may be defined as conduct which has, either as its object or as its natural consequence, the unlawful display of dissatisfaction with the Government or with the existing order of society. The seditious conduct may be by words, by deed, or by writing. Five specific heads of sedition may be enumerated: (1) to excite disaffection against the King, Government, or Constitution, or against Parliament or the administration of justice; (2) to promote by unlawful means any alteration in Church or State; (3) to incite a disturbance of the peace; (4) to raise discontent among the King's subjects; (5) to excite class hatred. Criticism on political matters is not in itself sedition; the test is the manner in which it is made. Candid and honest discussion is permitted. The law interferes when the discussion passes the bounds of fair criticism, especially when the natural consequence of the conduct is to promote public disorder. This statement of law is derived mainly from the address to the Jury by Fitzgerald, J., in Reg v. Alexander Martin Sullivan. In his address, the learned Judge observed that sedition is a crime against society, nearly allied to treason, and frequently precedes treason. Sedition embraces all practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State and lead ignorant persons to endeavour to subvert the Government and the laws of the empire. The objects of sedition are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; the tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm, and generally all endeavours to promote public disorder. The law has not changed over the centuries, as noted by Coleridge, J., in his summing up in Rex v. Aldred, that whoever by language, either written or spoken, incites or encourages others to use physical force or violence in a public matter connected with the State, is guilty of publishing a seditious libel., Finally, while considering the applicability of Section 124A of the Indian Penal Code, especially in the context of the right guaranteed under Article 19(1)(a) of the Constitution, this Court concluded: It has not been questioned that the fundamental right guaranteed by Article 19(1)(a) – freedom of speech and expression – is not an absolute right. It is common ground that the right is subject to reasonable restrictions under clause (2), which includes (a) security of the State, (b) friendly relations with foreign States, (c) public order, (d) decency or morality, etc. With reference to the constitutionality of Section 124A or Section 505 of the Indian Penal Code, as to how far they are consistent with the requirements of clause (2) of Article 19, particularly with respect to security of the State and public order, the section penalises any spoken or written words or signs or visible representations which have the effect of bringing, or attempting to bring, into hatred or contempt, or excite or attempt to excite disaffection towards the Government established by law. The expression ‘Government established by law’ must be distinguished from the persons temporarily engaged in administering it. The Government established by law is the visible symbol of the State. Its subversion would jeopardise the existence of the State. Hence, sedition, as the offence in Section 124A, comes under Chapter VI relating to offences against the State. Any act within the meaning of Section 124A which has the effect of subverting the Government by bringing it into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words which have implicit in them the idea of subverting Government by violent means, which are comprehensively included in the term revolution, have been made penal by the section. However, the section makes clear that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. Disloyalty to the Government established by law is not the same as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, without exciting feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence. It has not been contended that if a speech or a writing excites people to violence or has the tendency to create public disorder, it would not come within the definition of sedition. What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials might also come within the ambit of the penal section. In our opinion, such words would be outside the scope of the section. In this connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order, is the basic consideration upon which legislation punishing offences against the State is undertaken. Such legislation, on the one hand, fully protects and guarantees the freedom of speech and expression, which is the sine qua non of a democratic form of Government established by our Constitution.
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Supreme Court of India, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Supreme Court of India has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen's fundamental right guaranteed under Article 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order., We have, therefore, to determine how far the Sections 124A and 505 of the Indian Penal Code could be said to be within the justifiable limits of legislation. If it is held, in consonance with the views expressed by the Federal Court in the case of Niharendu Dutt Majumdar v. King‑Emperor that the gist of the offence of sedition is incitement to violence or the tendency or the intention to create public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State, in other words bringing the law into line with the law of sedition in England, as was the intention of the legislators when they introduced Section 124A into the Indian Penal Code in 1870 as aforesaid, the law will be within the permissible limits laid down in clause (2) of Article 19 of the Constitution. If on the other hand we give a literal meaning to the words of the section, divorced from all the antecedent background in which the law of sedition has grown, as laid down in the several decisions of the Judicial Committee of the Privy Council, it will be true to say that the section is not only within but also very much beyond the limits laid down in clause (2) aforesaid., In view of the conflicting decisions of the Federal Court and of the Privy Council, referred to above, we have to determine whether and how far the provisions of Sections 124A and 505 of the Indian Penal Code have to be struck down as unconstitutional. If we accept the interpretation of the Federal Court as to the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression. There can be no doubt that apart from the provisions of clause (2) of Article 19, Sections 124A and 505 are clearly violative of Article 19(1)(a) of the Constitution. But then we have to see how far the saving clause, namely, clause (2) of Article 19 protects the sections aforesaid. Now, as already pointed out, in terms of the amended clause (2), the expression \in the interest of public order\ is of great amplitude and is much more comprehensive than the expression for the maintenance of order, as observed by the Supreme Court of India in the case of Virendra v. State of Punjab. Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity., If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Article 19(1)(a) read with clause (2). It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order., It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress, as in Bengal Immunity Company Limited v. State of Bihar and R.M.D. Chamarbaugwala v. Union of India. Viewed in that light, we have no hesitation in construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence., We may also consider the legal position, assuming that the main Section 124A is capable of being construed in the literal sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above. On that assumption, is it not open to the Supreme Court of India to construe the section in such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intended to apply it? In our opinion, there are decisions of this Court which amply justify our taking that view of the legal position. The Supreme Court of India, in the case of R.M.D. Chamarbaugwala v. Union of India, examined in detail the several decisions of this Court, as also of the courts in America and Australia. After examining those decisions, this Court concluded that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another interpretation of the words in question. In that case, the Court had to choose between a definition of the expression \Prize Competitions\ as limited to those competitions which were of a gambling character and those which were not. The Court chose the former interpretation which made the rest of the provisions of the Prize Competitions Act, 1955, with particular reference to Sections 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case in hand insofar as we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace., It may be noted here that the appeal of Kedar Nath Singh was dismissed by the Supreme Court of India, affirming the view taken by the Courts below that the speech, taken as a whole, was seditious. This Court, thus, did not follow the decisions of the Privy Council in Bal Gangadhar Tilak v. Queen Empress and in King‑Emperor v. Sadashiv Narayan Bhalerao but held that the operation of Section 124A of the Indian Penal Code must be limited only to such activities as come within the ambit of the observations of the Federal Court., The accused, Sadashiv Narayan Bhalerao, had distributed certain pamphlets on 26 January 1943 in respect of which he was tried for having committed an offence punishable under Rule 38(5) read with Rule 34 of the Defence of India Rules. The relevant statutory provisions as quoted in the decision of the Privy Council were: “34.(6) ‘prejudicial act’ means any act which is intended or is likely to bring into hatred or contempt, or to excite disaffection towards, His Majesty or the Crown Representative or the Government established by law in British India or in any other part of His Majesty's dominions; (g) to cause fear or alarm to the public or to any section of the public; 34.(7) ‘prejudicial report’ means any report, statement or visible representation, whether true or false, which, or the publishing of which, is, or is an incitement to the commission of, a prejudicial act as defined in this rule; 38.(i) No person shall, without lawful authority or excuse, (c) make, print, publish or distribute any document containing, or spread by any other means whatsoever, any prejudicial report; (5) If any person contravenes any of the provisions of this rule, he shall be punishable with imprisonment for a term which may extend to five years or with fine or with both.”, The trial Magistrate had acquitted the accused. The appeal by the Crown having been dismissed, the matter was taken up before the Privy Council. Their Lordships are unable to accept the test laid down by the learned Chief Justice, as applicable in India. They agree, for the purposes of the present appeal, that there is no material distinction between Rule 34, sub‑rule 6, sub‑para (e), and Section 124A, Indian Penal Code, though it might be suggested that the words “an act which is intended or likely to bring” in the Rule are wider than the words “brings or attempts to bring” in the Code. They further agree with the learned Chief Justice that the omission in the Rule of the three explanations in the Code should not lead to any difference in construction. The word “sedition” does not occur either in Section 124A or in the Rule; it is only found as a marginal note to Section 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. There can be no justification for restricting the contents of the section by the marginal note. In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the Chief Justice, but these decisions are not relevant when there is a statutory definition of that which is termed sedition, as we have in the present case. In Wallace‑Johnson v. The King under sub‑section 8 of Section 326 of the Criminal Code of the Gold Coast, seditious intention was defined as an intention to bring into hatred or contempt or to excite disaffection against the Government of the Gold Coast as by law established. It was held by this Board that the words were clear and unambiguous, and that incitement to violence was not a necessary ingredient of the crime of sedition as thereby defined. In conclusion, their Lordships will only add that the amendments of Section 124A in 1898, the year after Tilak’s case, by the inclusion of hatred or contempt and the addition of the second and third explanations, did not affect or alter the construction of the section laid down in Tilak’s case, and, in their opinion, if the Federal Court, in Niharendu’s case, had given their attention to Tilak’s case, they should have recognized it as an authority on the construction of Section 124A by which they were bound. Their Lordships are accordingly of opinion that the appeal should be allowed and that the judgments and orders of the courts below should be set aside, and that it should be declared that it is not an essential ingredient of a prejudicial act as defined in sub‑para (e) of Rule 34, sub‑rule 6, of the Defence of India Rules that it should be an act which is intended or is likely to incite to public disorder., The submission made on behalf of Bal Gangadhar Tilak before the Privy Council was paraphrased in the report as follows: Asquith, Q.C. (Mayne, G. H. Blair, and W. C. Bonnerjee with him), for the petitioner, contended that this was a case in which an appeal should be admitted. The misdirection as to the meaning of Article 124A of the Penal Code raised a question of great and general importance within the meaning of Regina v. Bertrand. The Judge’s direction was objected to in that it defined the offence created by Section 124A in terms too wide, to the effect that disaffection meant simply absence of affection, that it meant a feeling (not translated into overt act) of hatred, enmity, dislike, hostility, contempt, and any form of ill‑will to the Government; that disloyalty was perhaps the best term, and that it comprehended every possible form of bad feeling to the Government; that a man must not make or try to make others feel enmity of any kind against the Government; that if a man expresses condemnation of the measures legislative or executive of the Government he was within his right, but that if he went further and held up the Government itself to the hatred and contempt of his readers by the imputation of motives or by denouncing its foreign origin or character, that then he was guilty under the Section. Reference was made to the definition of the word disaffection by Petheram C.J. in Queen Empress v. Jogendra Chunder Bose and Others. It was contended that Tilak’s comments had not exceeded what in England would be considered within the functions of a public journalist. It was further contended that the misdirection complained of was of the greatest importance, not merely to the petitioner, but to the whole of the Indian press, and also to all the Indian subjects of the Crown. It affected injuriously the liberty of the press, the right to free speech and public meeting, and the right to petition for redress of grievances., In this respect, the address made by Bal Gangadhar Tilak to the Jury, during the course of his trial, may also be noted. Some of the passages from the address were: “To excite feelings of disaffection means that by your act you must heighten feelings of disaffection when they exist or create them when they do not. If you do not do anything to excite feelings, if you merely express, if you merely report, if you only express sentiments which exist at the time, surely your act does not come under Section 124A. Nay, more, you may create a feeling of disapprobation. I can say with impunity something is bad; it ought to be remedied. I have to write; I have a right to do that and if I find fault it is only natural that some ill‑feeling is created… That is the meaning of Explanation 2 to the Section; it refers to comments expressing disapprobation of the measures of the Government. When I say that Government is going wrong, evidently, I say something which the authorities may not like. That is not sedition; if that were so, there could be no progress at all… Then there is another expression to which I wish to draw your attention; and it is Government established by law in British India. Government here does not mean the Executive or the Judiciary but it means Government in the abstract. The word Government is defined in the Indian Penal Code and includes any officer, even a polite constable. It does not mean that if I say a policeman is not doing his duty then I am guilty of sedition. Go up higher. If certain officials have not been doing their duty, I have every right to say that these officials should be discharged; there should be stricter supervision and that particular departments should be altered. So long as the word Government is qualified by the words ‘established by law’, how can it have the meaning given to it by a definition of the word Government in a particular part of the Penal Code? The qualifying phrase makes it a quite different thing. It is Government established by law. We shall have to come afterwards to the question whether bureaucracy is Government or not? Whether the British Government is solely dependent upon the bureaucracy? Can it not exist without it? The bureaucracy may say so, it may be very flattering to them to say that the services of certain officers are indispensable to them but is it the meaning conveyed by the expression ‘Government established by law in British India’? Does it mean a form of administration and is it consistent with that meaning? So far as ideals are concerned they do not come under the Penal Code. I may say that a certain system of administration is better suited to the country and may try to spread that opinion. You may not agree with me but that is not the point. I have to express my opinion and so long as I do not create any disaffection I am allowed to express it freely. There can otherwise be no progress; progress would be impossible unless you allow intelligent gentlemen the right to express their opinion, to influence the public and get the majority of the public on their side. The question is, do you really intend as guardians of the liberty of the Press to allow as much liberty here in India as is enjoyed by the people of England? That is the point that you will have to very carefully consider. I wish to show you that mine is an article written in controversy as a reply to an opponent. It was penned to defend the interests of my community. You may not agree with me in my views. Different communities have different views. And every community must have opportunity to express its own views. I have not come here to ask you any grace. I am prepared to stand by the consequences of my act. There is no question about it. I am not going to tell you that I wrote the article in a fit of madness. I am not a lunatic. I have written it believing it my duty to write in the interest of the public in this way, believing that that was the view of the community. I wanted to express it, believing that the interests of the community would not be otherwise safeguarded. Believe me when I say that it was both in the interest of the people and Government and this view should be placed before them. If you honestly go to the question like that it will be your duty to give a verdict of not guilty, whatever may be your opinion about me, even if you dislike me as much as you can. In a homogeneous country like England, there are parties like Conservatives, Liberals, Radicals and Nationalists; each man takes his own view of public events. Take, for instance, the Boer war; there were people who disapproved of it, though they were a very small minority. The majority of the nation determined upon going to war and the war did take place. Those who represented the view of the minority used arguments in favour of the Boers, they were called the pro‑Boer party, the others used arguments against the Boers. So there was public opinion discussed on both sides and from both points of view. That is the beauty of a free press, which allows discussion in this way to the people of the country upon a particular subject.”, Having considered the decisions of the Privy Council in Bal Gangadhar Tilak and in King‑Emperor v. Sadashiv Narayan Bhalerao we must now deal with the decision of the Federal Court in Niharendu Dutt Majumdar v. The King‑Emperor. A passage from the decision of the Federal Court was quoted in Kedar Nath Singh v. State of Bihar but the immediately preceding passage from said decision of the Federal Court is also noteworthy and was to the following effect: “The time is long past when the mere criticism of Governments was sufficient to constitute sedition, for it is recognized that the right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness. Criticism of an existing system of Government is not excluded, nor even the expression of a desire for a different system altogether. The language of Section 124A of the Penal Code, if read literally, even with the explanations attached to it, would suffice to make a surprising number of persons in this country guilty of sedition; but no one supposes that it is to be read in this literal sense. The language itself has been adopted from English law, but it is to be remembered that in England the good sense of jurymen can always correct extravagant interpretations sought to be given by the executive Government or even by Judges themselves, and if in this country that check is absent, or practically absent, it becomes all the more necessary for the Courts, when a case of this kind comes before them, to put themselves as far as possible in the place of a jury, and to take a broad view, without refining overmuch in applying the general principles which underlie the law of sedition to the particular facts and circumstances brought to their notice. What then are these general principles? We are content to adopt the words of a learned Judge, which are to be found in every book dealing with this branch of the criminal law: ‘Sedition embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State and lead ignorant persons to subvert the Government. The objects of sedition generally are to induce discontent and insurrection, to stir up opposition to the Government, and to bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or disaffection, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or Government, the laws or the constitution of the realm and generally all endeavours to promote public disorder.’”, These passages elucidate what was accepted by the Supreme Court of India in preference to the decisions of the Privy Council in Bal Gangadhar Tilak and in King‑Emperor v. Sadashiv Narayan Bhalerao. The statements of law deducible from the decision in Kedar Nath Singh are as follows: (a) the expression “the Government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. Government established by law is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. (b) any acts within the meaning of Section 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. (c) comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. (d) a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. (e) the provisions of the Sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. (f) it is only when the words, written or spoken, etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. (g) we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace. As the statement of law at point (e) above indicates, it applies to cases under Sections 124A and 505 of the Indian Penal Code. According to this Court only such activities which would be intended or have a tendency to create disorder or disturbance of public peace by resort to violence are rendered penal., Some of the decisions cited by the learned counsel, touching upon the content and the extent of the right of the press, may also be adverted to at this stage.
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In the case of Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. Union of India & Ors., the Supreme Court of India observed: The freedom of press, as one of the members of the Constituent Assembly said, is one of the items around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitutions prevail. The said freedom is attained at considerable sacrifice and suffering and ultimately it has come to be incorporated in the various written constitutions. James Madison, when he offered the Bill of Rights to Congress in 1789, is reported as having said: “The right of freedom of speech is secured, the liberty of the press is expressly declared to be beyond the reach of this Government.” Even where there are no written constitutions, there are well‑established constitutional conventions or judicial pronouncements securing the said freedom for the people. The basic documents of the United Nations and of some other international bodies give prominence to the said right., The leaders of the Indian independence movement attached special significance to the freedom of speech and expression, which included freedom of the press. During their struggle they were moved by the American Bill of Rights containing the First Amendment to the Constitution of the United States of America, which guaranteed the freedom of the press. Pandit Jawaharlal Nehru, in his historic resolution containing the aims and objects of the Constitution to be enacted by the Constituent Assembly, said that the Constitution should guarantee and secure to all the people of India, among others, freedom of thought and expression. He also stated elsewhere that he would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press., The Constituent Assembly and its various committees considered freedom of speech and expression, which included freedom of the press, as a precious right. The Preamble to the Constitution says that it is intended to secure to all citizens liberty of thought, expression and belief. It is significant that any reasonable restriction on the freedom of speech and expression must be enumerated in clause (2) of Article 19. In Romesh Thappar v. State of Madras and Brij Bhushan case, the Supreme Court of India firmly expressed its view that there could be no restrictions on the freedom of speech and expression other than those mentioned in Article 19(2), thereby making it clear that there could be no interference with that freedom in the name of public interest., In today's free world, freedom of the press is the heart of social and political intercourse. The press has assumed the role of the public educator, making formal and non‑formal education possible on a large scale, particularly in the developing world where television and other modern communication are not yet available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions, without which a democratic electorate cannot make responsible judgments. Newspapers, being purveyors of news and views having a bearing on public administration, often carry material that would not be palatable to governments and other authorities. The authors of such articles must be critical of government actions in order to expose weaknesses, and such criticism can become an irritant or even a threat to power., Thomas I. Emerson, in his article entitled “Toward a General Theory of the First Amendment” (1963) 72 Yale Law Journal 877 at p. 906, while dealing with the role of judicial institutions in a democratic society and in particular of the Supreme Court of the United States in upholding freedom of speech and expression, wrote: “The objection that our judicial institutions lack the political power and prestige to perform an active role in protecting freedom of expression against the will of the majority raises more difficult questions. Certainly judicial institutions must reflect the traditions, ideals and assumptions of the social order in which they operate… The problem for the Supreme Court is one of finding the proper degree of responsiveness and leadership… Given its prestige, it would appear that the power of the Court to protect freedom of expression is unlikely to be substantially curtailed unless the whole structure of our democratic institutions is threatened.”, The same principle applies to the Indian courts with equal force. In Romesh Thappar case, Brij Bhushan case, Express Newspapers (Private) Ltd. v. Union of India, Sakal Papers (P) Ltd. v. Union of India and Bennett Coleman case, the Supreme Court of India has very strongly pronounced in favour of the freedom of the press. In Romesh Thappar case, the Court said at p. 602: “The freedom lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse, but it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those yielding the proper fruits.”, In Bennett Coleman case, Chief Justice A.N. Ray, on behalf of the majority, said at p. 796: “The faith of a citizen is that political wisdom and virtue will sustain themselves in the free market of ideas so long as the channels of communication are left open. The faith in the popular Government rests on the old dictum ‘let the people have the truth and the freedom to discuss it and all will go well.’ The liberty of the press remains an Ark of the Covenant in every democracy. The newspapers give ideas. The newspapers give the people the freedom to find out what ideas are correct.”, In the same case, Justice Mathew observed that the constitutional guarantee of freedom of speech is not so much for the benefit of the press as it is for the benefit of the public. The freedom of speech includes within its compass the right of all citizens to read and be informed. In Time Inc. v. Hill, the United States Supreme Court said: “The constitutional guarantee of freedom of speech and press are not for the benefit of the press so much as for the benefit of all the people.” In Griswold v. Connecticut, the Court held that the right of freedom of speech and press includes not only the right to utter or to print, but the right to read., In S. Rangarajan v. P. Jagjivan Ram & Ors., the Court held: Democracy is a government by the people via open discussion. The democratic form of government demands its citizens’ active and intelligent participation in the affairs of the community. Public discussion with people’s participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government. The democracy can neither work nor prosper unless people go out to share their views. Public discussion on issues relating to administration has positive value., Justice Brandies, in Whitney v. California, propounded a free‑speech theory that the greatest menace to freedom is an inert people; that public discussion is a political duty; that it is hazardous to discourage thought, hope and imagination; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones., 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. There must be a compromise between the interest of freedom of expression and special interests, but the two interests cannot be simply balanced as if they are of equal weight. Our commitment to freedom of expression demands that it cannot be suppressed unless the situation created by allowing the expression is 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, inseparably linked with the contemplated action like a spark in a power keg., The Constitution Bench of the Supreme Court of India in The Superintendent, Central Prison, Fatehgarh and another v. Dr. Ram Manohar Lohia dealt with the expression ‘public order’ appearing in Article 19(2). The Court held that ‘public order’ has a very wide connotation, implying the orderly state of society in which citizens can peacefully pursue their normal activities. Although the expression is not defined in the Constitution, it occurs in List II of the Seventh Schedule and was inserted by the Constitution (First Amendment) Act, 1951 in clause (2) of Article 19. The Court explained that the expression ‘public order’ includes offences that aim at undermining the security of the State or overthrowing it, and that only such offences can justify curtailment of the right to freedom of speech and expression., In Romesh Thappar v. State of Madras, the Government of Madras, exercising powers under Section 9(1‑A) of the Madras Maintenance of Public Order Act, 1949, issued an order banning the entry and circulation of the journal ‘Cross Roads’. The petitioner contended that the order contravened his fundamental right to freedom of speech and expression. The Court observed that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or its overthrow, such law cannot fall within the reservation under clause (2) of Article 19, even if the restrictions are generally described as being in the interests of public order., The Court in Brij Bhushan v. State of Delhi followed the earlier decision and held that ‘public order’ can be divided into two categories: (a) major offences affecting the security of the State, and (b) minor offences involving breach of purely local significance. Justice Fazl Ali, in his dissent, gave ‘public order’ a wider meaning, equating it with public peace and safety., After the First Amendment, the Supreme Court of India explained the scope of Romesh Thappar in State of Bihar v. Shailabala Devi, which concerned the constitutional validity of Section 4(1)(a) of the Indian Press (Emergency Powers) Act, 1931. The provision dealt with words, signs or visible representations that incite or encourage the commission of murder or any cognizable offence involving violence. Justice Mahajan observed that even without the amendment, such a provision would be permissible as it aimed to prevent incitement to murder., The United States Supreme Court, in Cantewell v. Connecticut, observed that the offence ‘breach of the peace’ embraces a variety of conduct that destroys or menaces public order and tranquillity, and that incitement to riot is not protected by the principle of freedom of speech when there is a clear and present danger. Similar principles are reflected in English legislation such as the Public Order Act, 1936 and the Theatres Act, 1843, which criminalise threatening, abusive or insulting words or behaviour intended to provoke a breach of the peace., In India, Article 19(2) splits the wide concept of public order into distinct heads, permitting reasonable restrictions on freedom of speech and expression in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation or incitement to an offence. Although these grounds may overlap, they are ordinarily intended to exclude each other, and public order is demarcated from the other grounds, essentially synonymous with public peace, safety and tranquillity., Having dealt with the applicability of Section 124A of the Indian Penal Code and the rights of a citizen and of the press, the next stage is to consider whether the petitioner is correct in submitting that no offence as alleged has been made out. The principles for quashing an FIR or criminal proceedings, post the decision of the Supreme Court of India in State of Haryana and Others v. Bhajan Lal and Others (1992), are well settled., In Manzar Sayeed Khan v. State of Maharashtra and Another, it was held that the requisite intention to promote feelings of enmity or hatred between different classes of people must be judged primarily by the language of the book and the circumstances in which it was written, and that the effect of the words must be judged by the standards of reasonable, strong‑minded, firm and courageous persons. Section 153‑A of the Indian Penal Code covers acts that promote disharmony or feelings of enmity between different religious, racial, linguistic or regional groups, and the prosecution must prove mens rea., In Ramesh v. Union of India, the Court held that the TV serial ‘Tamas’ did not depict communal tension and violence, and therefore the provisions of Section 153‑A IPC would not apply. The Court affirmed that the effect of words must be judged by the standards of a reasonable, strong‑minded, firm and courageous person, not by weak or vacillating minds., In Patricia Mukhim v. State of Meghalaya and Others, the Court examined a Facebook post dated 04.07.2020 and found that the post highlighted discrimination against non‑tribals and called for action against criminal elements, without any intention to promote class or community hatred. Consequently, the basic ingredients of offences under Sections 153A and 505(1)(c) of the Indian Penal Code were not made out, and the FIR was liable to be quashed., The respondents alleged additional offences beyond those stated in the FIR. They relied on statements made during a talk show, including: (i) the lack of sufficient testing facilities; (ii) uncertainty about the quantity of PPE suits, N95 masks and three‑ply masks; (iii) export of ventilators, respiratory devices and sanitizers to other countries and to India until 24 March 2020 instead of retaining them for domestic use; (iv) disruption of supply chains due to road blockages; (v) fear of food riots; and (vi) the return of people from Mumbai as a signal of the impact of the complete lockdown., It is common knowledge that countries worldwide found themselves lacking infrastructure and facilities to cope with the effects of the COVID‑19 pandemic. Considering the size of the population of India, testing facilities and the availability of PPE suits, N‑95 masks and three‑ply masks were not exactly adequate in the initial stages of the surge. Therefore, the petitioner’s comments on testing facilities and PPE supplies constitute an appraisal of the situation rather than an incitement to any offence.
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It was not even the case of the respondents that these two statements were factually incorrect. Writ Petition (Criminal) No. 154 of 2020 Vinod Dua vs. Union of India & Ors. With regard to the third statement, the contention of the respondents was that the ban on export was imposed on 19 March 2020 and the said statement was therefore not quite correct. It was also submitted that the petitioner produced no evidence of actual exports before the ban was imposed on 19 March 2020 and that there were no exports immediately proceeding the imposition of the ban., The effect of the nation‑wide lockdown which came into effect from midnight on 24 March 2020 to 25 March 2020, according to the petitioner, resulted in disruption of supply chains due to blockage of roads. The respondents submitted that the Consolidated Guidelines issued on 28 March 2020 (which was stated to be an order under Section 188 of the Indian Penal Code) directed adequate steps to ensure that there was no disruption in supply of essential goods. The fourth statement acknowledged that the transportation of essential goods was being allowed and, in that sense, it was a more or less correct depiction of the state of affairs then prevailing., The emphasis was put to a great extent on the fifth and sixth statements and it was strongly contended that those statements not only gave factually incorrect information but amounted to incitement of the general public and that because of such incorrect information the movement of migrant workers had begun. On the other hand, reliance was placed by the petitioner on the interview of the former Chief Statistician reported on 28 March 2020 that if the food requirements of migrant workers were not fulfilled amid the country‑wide lockdown, food riots could be a real possibility. It was submitted that by the time the talk show was uploaded, the movement of migrant workers had already started and was at its peak., It may be relevant to note that Writ Petition (Civil) No. 468 of 2020 (Alakh Alok Srivastava v. Union of India) and connected petition filed on 29 March 2020 by two advocates sought to highlight the plight of migrant workers. These matters came up on 31 March 2020 before the Supreme Court of India when it was observed: “In the instant writ petitions, we are concerned about the migrant labourers who have started leaving their places of work for their home villages/towns located at distant places. For example, thousands of migrant labourers left Delhi to reach their homes in the states of Uttar Pradesh and Bihar, by walking on the highways. We are informed that the labourers who are unemployed due to lockdown were apprehensive about their survival. Panic was created by some fake news that the lockdown would last for more than three months.”, During the course of hearing, the Solicitor General of India made a statement that the information received by the Control Room at 2.30 A.M. showed that 21,064 relief camps have been set up by various State Governments/Union Territories where the migrant labourers have been shifted and they are being provided with basic amenities like food, medicines, drinking water, etc. According to the status report, 666,291 persons have been provided shelters and 2,288,279 persons have been provided food. The Solicitor General also referred to the status report to submit that the exodus of migrant labourers was triggered due to panic created by some fake or misleading news and social media., While informing the Supreme Court of India about the steps taken by the Government of India to ensure that the migrant labourers are being shifted to nearby shelters or relief camps from places where they were found walking and basic amenities being provided to them, the Union of India sought a direction to the State Governments and the Union Territories to implement the directions issued by the Central Government. A further direction was sought to prevent fake and inaccurate reporting, whether intended or not, by electronic, print or social media which could cause panic in society. The migration of a large number of labourers working in the cities was triggered by panic created by fake news that the lockdown would continue for more than three months. Such panic‑driven migration has caused untold suffering to those who believed and acted on such news; in fact, some have lost their lives in the process. It is therefore not possible to overlook this menace of fake news by any medium., Section 54 of the Disaster Management Act, 2005 provides for punishment to a person who makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. Such a person shall be punished with imprisonment which may extend to one year or with fine. Disobedience to an order promulgated by a public servant would result in punishment under Section 188 of the Indian Penal Code. An advisory which is in the nature of an order made by a public authority attracts Section 188 of the Indian Penal Code. We trust and expect that all concerned, viz., State Governments, public authorities and citizens of this country, will faithfully comply with the directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety. In particular, we expect the media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated., A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media to refer to and publish the official version about the developments., The developments referred to in the aforementioned order show that the movement of migrant workers back to their hometowns or villages had posed an alarming situation. The writ petitions brought out those issues, in response to which the concern shown by the Government and the steps undertaken by the authorities were placed on record. The Supreme Court of India suggested that a daily bulletin by the Government of India be made active so that correct and precise information was made available to the general public and the exodus of migrant workers could thus be checked. However, the order also shows the magnitude of the problem which required about 666,291 persons to be provided shelter and 2,288,279 persons to be provided food., What was prevailing on 30 March 2020 was therefore clear: migrant workers in huge numbers were moving towards their hometowns or villages. In the circumstances, there would naturally be some apprehension about the shelter and food to be provided to them en‑route. The former Chief Statistician had expressed a possibility with the intent to invite the attention of the authorities. If the petitioner in his talk show uploaded on 30 March 2020, that is even before the matter was taken up by the Supreme Court of India, made certain assertions in his fifth and sixth statements, he would be within his rights as a journalist to touch upon issues of great concern so that adequate attention could be bestowed to the prevailing problems. It cannot be said that the petitioner was spreading any false information or rumours., It is not the case of the respondents that the migrant workers started moving towards their hometowns or villages purely as a result of the statements made by the petitioner. Such movement had begun long before. In the circumstances, these statements can neither be taken to be an attempt to incite migrant workers to start moving towards their hometowns or villages nor can they be taken as an incitement for causing any food riots. The situation was definitely alarming around 30 March 2020 and as a journalist if the petitioner showed some concern, it could not be said that he committed offences as alleged., The principles culled out in paragraph 33 hereinabove from the decision of the Supreme Court of India in Kedar Nath Singh show that a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is only when the words or expressions have a pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the Indian Penal Code must step in. In our view, the statements by the petitioner, if read in the light of the principles emanating from the decision in Kedar Nath Singh and against the backdrop of the circumstances when they were made, can at best be termed as expression of disapprobation of actions of the Government and its functionaries so that the prevailing situation could be addressed quickly and efficiently. They were certainly not made with the intent to incite people or show tendency to create disorder or disturbance of public peace by resort to violence. The petitioner was within the permissible limits laid down in the decision of the Supreme Court of India in Kedar Nath Singh. It may be that certain factual details in the third statement regarding the date when the ban came into effect were not completely correct. However, considering the drift of the entire talk show and all the statements put together it cannot be said that the petitioner crossed the limits set out in the decision of this Court in Kedar Nath Singh., We are, therefore, of the firm view that the prosecution of the petitioner for the offences punishable under Sections 124A and 505(1)(b) of the Indian Penal Code would be unjust. Those offences, going by the allegations in the First Information Report and other attending circumstances, are not made out at all and any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution., The other offending provision referred to in the First Information Report is Section 501 of the Indian Penal Code which deals with printing or engraving a matter which is defamatory to any person. As a matter of fact, cognizance with respect to an offence punishable under Chapter XXI of the Indian Penal Code (Section 501 is part of said Chapter) can be taken by a court only upon a complaint made by the person aggrieved. Without going into such technicalities, in our view, there is nothing defamatory in the statements made by the petitioner. Further, the statements of the petitioner would be covered by the second and third exceptions to Section 499 of the Indian Penal Code. In some of the cases decided by this Court, for example, in Jawaharlal Darda and Others v. Manoharrao Ganpatrao Kapsikar and Another, Rajendra Kumar Sitaram Pande and Others v. Uttam and Another, Vivek Goenka and Others v. Y.R. Patil, and S. Khushboo v. Kanniammal and Another, relying on exceptions to Section 499 of the Indian Penal Code, the criminal proceeding initiated against the accused were quashed. Thus, the instant proceedings, in so far as Section 501 of the Indian Penal Code is concerned, also deserve to be quashed., The other provision referred to in the First Information Report was Section 268 of the Indian Penal Code which is nothing but the definition of public nuisance and is not a penal provision in itself which prescribes any punishment. It was also not the case of the respondent that any penal provision involving element of public nuisance was attracted in the instant case., Thus, all the offences set out in the First Information Report, in our considered view, are not made out at all., We now turn to the case with regard to the offences which were not spelled out in the First Information Report. It was contended by the respondents that in addition to the offences specifically set out in the First Information Report, the petitioner would also be guilty of the offences punishable under Sections 52 and 54 of the Disaster Management Act and Section 188 of the Indian Penal Code. According to the respondents, the statements made by the petitioner during the talk show amounted to circulating a false alarm and would therefore be covered by Section 54 of the Disaster Management Act; and that the petitioner would also be guilty of having violated communications dated 24 March 2020 and 28 March 2020 and thereby committed offences under Section 188 of the Indian Penal Code., The response of Mr. Vikas Singh, learned Senior Advocate for the petitioner was that by virtue of Section 60 of the Disaster Management Act, the offences punishable under the provisions of the Disaster Management Act could be taken cognizance of only upon a complaint being made by certain designated officials or functionaries. Similarly, in respect of offence under Section 188 of the Indian Penal Code, by virtue of Section 195 of the Code of Criminal Procedure, cognizance could be taken only upon a complaint in writing made by the concerned public servant whose orders were allegedly violated or by someone who was administratively superior to such public servant. These statutory requirements having not been satisfied, the submission that the offences punishable under the Disaster Management Act and under Section 188 of the Indian Penal Code were made out was required to be rejected. Reliance was placed by him on the decisions of this Court in Daulat Ram v. State of Punjab and in C. Muniappan and Others v. State of Tamil Nadu as well as cases referred to in C. Muniappan. The other facet of the submission was that even on merits, the statements made by the petitioner in his talk show did not satisfy the requirements of both said statutory provisions and therefore the petitioner was entitled to the relief prayed for., In reply, Mr. S. V. Raju, learned Additional Solicitor General submitted that the injunctions spelled out in Section 60 of the Disaster Management Act and Section 195 of the Code would come into play only at the stage of cognizance by the court and as such there would not be any bar to the invocation of these provisions at a stage anterior to the stage of cognizance., We need not go into the technical issue whether the initiation of the proceedings in respect of the offences punishable under the Disaster Management Act and/or under Section 188 of the Indian Penal Code could only be after an appropriate complaint in writing as submitted by the petitioner, as in our considered view, none of the said offences as submitted by the respondents get attracted in the instant matter., Section 188 of the Indian Penal Code deals with disobedience to an order duly promulgated by a public servant. If a person, though directed inter alia to abstain from a certain act, disobeys a direction issued by a public servant lawfully empowered to promulgate such direction or order, Section 188 of the Indian Penal Code may get attracted. The communications dated 24 March 2020 and 28 March 2020 which have been quoted earlier were pressed into service and it was submitted that said communications which everyone was bound and obliged to follow were violated by the petitioner. We have gone through these communications and in our view, there was nothing therein which was violated as a result of the talk show uploaded by the petitioner. An attempt was then made to rely on the order dated 31 March 2020 to submit that this Court had issued certain directions and expected the media to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic was not disseminated. First, the direction was issued on 31 March 2020 i.e. after the episode was uploaded on 30 March 2020 and secondly, we have not found any infirmity or illegality in the statements made by the petitioner on the basis of which it could be possibly said that he was attempting to disseminate any news capable of causing panic. Consequently, the provisions of Section 188 of the Indian Penal Code would not get attracted at all., Section 52 of the Disaster Management Act deals with the lodging of a false claim by a person for obtaining any relief, assistance, etc., which provision has nothing to do with the present factual situation. Section 54 deals with cases where a person makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. We have already held that the statements made by the petitioner were within the limits prescribed by the decision of this Court in Kedar Nath Singh and that the statements were without any intent to incite people for creating public disorder. It was not even suggested that as a result of statements made by the petitioner any situation of panic had resulted in any part of the country., In the circumstances, without going into the technicalities whether the initiation of the proceedings could only be through a complaint filed in conformity with Section 60 of the Disaster Management Act or Section 195 of the Code, in our view, the provisions of the Disaster Management Act or Section 188 of the Indian Penal Code are not attracted at all., Consequently, we accept the first prayer made by the petitioner in this writ petition and quash FIR No. 0053 dated 6 May 2020 registered at Police Station Kumarsain, District Shimla, Himachal Pradesh and any proceedings arising therefrom. We must however clarify that the issues concerning ownership of HW News which had aired the talk show or the nature and effect of violation, if any, of the Norms of Journalistic Conduct framed by the Press Council of India, have not been gone into by us as they do not strictly are of any concern for determining the first prayer made in the writ petition., We now come to the second prayer made in the writ petition, in support of which reliance was placed by the petitioner on the decisions of this Court in Jacob Mathew and Lalita Kumari. In Jacob Mathew, a bench of three judges of this Court issued certain guidelines with respect to the prosecution of medical professionals. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304‑A of the Indian Penal Code. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards., We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against., Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation. A doctor accused of rashness or negligence may not be arrested in a routine manner unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor would not make himself available to face the prosecution unless arrested; the arrest may be withheld., Before issuing the aforesaid guidelines, this Court considered the illustrations mentioned below Sections 88, 92 and 93 of the Indian Penal Code and some relevant decisions, whereafter conclusions were summed up as under: (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: duty, breach and resulting damage. (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it should have been used. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word gross has not been used in Section 304‑A of the Indian Penal Code, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be gross. The expression rash or negligent act as occurring in Section 304‑A of the Indian Penal Code has to be read as qualified by the word grossly. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent., Bolam’s case referred to in conclusion (4) was dealt with in paragraph 20 of the decision as follows: “The water of Bolam test has ever since flowed and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well‑condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie test in the following words: (Con From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field.”
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He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet. (Charlesworth & Percy, ibid., paragraph 57.) What the decision makes clear is that before a medical professional is prosecuted for negligence in criminal law, some threshold requirements ought to be satisfied, otherwise an unwarranted prosecution may not only result in great prejudice to the concerned medical professional but would also not instill a sense of confidence in the medical professionals for discharging their duties., Considering Section 88 of the Indian Penal Code falling in 68 (1988) 18 Consolidated Law Reports 1, Writ Petition (Criminal) No. 154 of 2020 Vinod Dua versus Union of India and Others, Chapter titled General Exceptions and various illustrations as stated above, adequate protection was found necessary to be extended to medical professionals, whereafter the aforesaid guidelines were issued by the Supreme Court of India., The Constitution Bench of the Supreme Court of India in Lalita Kumari (supra) was called upon to consider, inter alia, the effect of Section 154 of the Indian Penal Code. One of the questions dealt with by the Constitution Bench was whether the police would be required to make any preliminary inquiry before registration of an FIR. Taking note of the decision of the Supreme Court of India in Jacob Mathew (supra), the Supreme Court of India in Lalita Kumari observed:, Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint., In the context of medical negligence cases, in Jacob Mathew, it was held by the Supreme Court of India as under (Supreme Court Cases page 35, paragraphs 51‑52): 51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressuring the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation. A doctor accused of rashness or negligence may not be arrested in a routine manner simply because a charge has been levelled against him. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer is satisfied that the doctor would not make himself available to face the prosecution unless arrested, the arrest may be withheld., In the context of offences relating to corruption, the Supreme Court of India in P. Sirajuddin versus State of Madras expressed the need for a preliminary inquiry before proceeding against public servants. Similarly, in CBI versus Tapan Kumar Singh, the Supreme Court of India has validated a preliminary inquiry prior to registering an FIR only on the ground that at the time the first information is received, the same does not disclose a cognizable offence., Therefore, in view of various counterclaims regarding registration or non‑registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations such as whether the information is falsely given, genuine or credible are not relevant at the stage of registration of FIR; these issues are to be verified during the investigation. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR., In view of the aforesaid discussion, the Supreme Court of India holds: As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) matrimonial disputes/family disputes (b) commercial offences (c) medical negligence cases (d) corruption cases (e) cases where there is abnormal delay or laches in initiating criminal prosecution, for example, over three months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry., The relevant observations in P. Sirajuddin, etc. versus State of Madras, etc. were: In our view the procedure adopted against the appellant before the laying of the first information report, though not in terms forbidden by law, was so unprecedented and outrageous as to shock one's sense of justice and fair play. No doubt when allegations about dishonesty of a person of the appellant's rank were brought to the notice of the Chief Minister it was his duty to direct an enquiry into the matter. The Chief Minister pursued the right course. The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of a person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister. The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view. Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information report is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, especially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti‑Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge‑sheet is for someone in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge‑sheet is submitted and a full‑scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be restored to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report., The enquiring officer pursued the investigation with such zeal and vigour that he even enquired into and took down statements as persons who were supposed to have provided the appellant with articles of food worth trifling sums of money long before the launching of the enquiry. The whole course of investigation as disclosed in the affidavits is suggestive of some pre‑determination of the guilt of the appellant. The enquiring officer was a high‑ranking police officer and it is surprising that simply because he was technically not exercising power under Chapter 14 of the Code of Criminal Procedure, a formal first information report had not been lodged, he overlooked or deliberately overstepped the limits of investigation contained in the said chapter. He recorded self‑incriminating statements of a number of persons and not only secured their signatures thereto obviously with the idea of pinning them down, but went to the length of providing certificates of immunity to at least two of them from the evil effects of their own misdeeds as recorded. It was said that the certificates were given after the statements had been signed. It is difficult to believe that the statements could have been made before the grant of oral assurances regarding the issue of written certificates. There can be very little doubt that the persons who were given such immunity had made the statements incriminating themselves and the appellant under inducement, threat or promise as mentioned in Section 24 of the Indian Evidence Act. The statement in paragraph 17 certainly spoke of requirement of a preliminary inquiry before a first information report is lodged against a public servant., Mr. Vikas Singh, learned Senior Advocate for the petitioner, strongly relied upon paragraph 120.6 of Lalita Kumari to submit that the category of cases in which preliminary inquiry could possibly be insisted upon were detailed by the Supreme Court of India but it was clearly stated that such categorisation was only illustrative and not exhaustive of all conditions which may warrant preliminary enquiry. It was submitted that there was strong similarity between the medical profession and journalists and the latter were also entitled to certain safeguards and protection; that journalists would also discharge the function of educating and altering the public in general and as such they, as a class, would also require similar protection. On the other hand, Mr. S.V. Raju, learned Additional Solicitor General, relied upon two recent decisions in Union of India versus State of Maharashtra and others and in Social Action Forum for Manav Adhikar and another versus Union of India, Ministry of Law and Justice and others, where directions similar to those issued in the case of Jacob Mathew were not accepted., In Rajesh Sharma and others versus State of Uttar Pradesh and another, a Bench of two Judges of the Supreme Court of India (to which one of us, Justice Lalit, was a party) issued the following directions in cases where the offence alleged was punishable under Section 498‑A of the Indian Penal Code: 19.1 In every district one or more Family Welfare Committees be constituted by the District Legal Services Authority preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority. 19.2 The Committees may be constituted out of paralegal volunteers, social workers, retired persons, spouses of working officers or other citizens who may be found suitable and willing. 19.3 The Committee members will not be called as witnesses. 19.4 Every complaint under Section 498‑A received by the police or the Magistrate be referred to and looked into by such Committee. Such Committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication. 19.5 Report of such Committee be given to the authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint. 19.6 The Committee may give its brief report about the factual aspects and its opinion in the matter. 19.7 Till report of the Committee is received, no arrest should normally be effected. 19.8 The report may then be considered by the investigating officer or the Magistrate on its own merit. 19.9 Members of the Committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time. 19.10 The members of the Committee may be given such honorarium as may be considered viable. 19.11 It will be open to the District and Sessions Judge to utilise the cost fund wherever considered necessary and proper. 19.12 Complaints under Section 498‑A and other connected offences may be investigated only by a designated investigating officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today. 19.13 In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior judicial officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord. 19.14 If a bail application is filed with at least one clear day's notice to the Public Prosecutor or complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife or minor children can otherwise be protected. 19.15 In respect of persons ordinarily residing outside India, impounding of passports or issuance of a red corner notice should not be routine. 19.16 It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the court to whom all such cases are entrusted. 19.17 Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by videoconferencing without adversely affecting progress of the trial. 19.18 These directions will not apply to offences involving tangible physical injuries or death., Direction 19.4 contemplated referral of every complaint under Section 498‑A to a Committee and it was only after the report of the Committee that arrest, if at all, could be effected. In terms of direction 19.12 it was directed that all complaints under Section 498‑A be investigated only by a Designated Investigating Officer of the area. While issuing these directions, the Supreme Court of India had relied upon the decision in Arnesh Kumar versus State of Bihar as well as the decision in Lalita Kumari., The correctness of the decision in Rajesh Sharma was questioned before a Bench of three Judges in Social Action Forum for Manav Adhikar and another versus Union of India, Ministry of Law and Justice and others. The Supreme Court of India in paragraph 33 of its judgment referred to paragraph 120.6 of the decision in Lalita Kumari and thereafter made the following observations: On a perusal of the aforesaid paragraphs, we find that the Court has taken recourse to fair procedure and workability of a provision so that there will be no unfairness and unreasonableness in implementation and for the said purpose, it has taken recourse to the path of interpretation. The core issue is whether the Court in Rajesh Sharma could, by the method of interpretation, have issued such directions. On a perusal of the directions, we find that the Court has directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, as we find, are beyond the Code and the same does not really flow from any provision of the Code. There can be no denial that there has to be just, fair and reasonable working of a provision. The legislature in its wisdom has made the offence under Section 498‑A Indian Penal Code cognizable and non‑bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. The directions issued in Arnesh Kumar are in consonance with the provisions contained in Section 41 of the Code of Criminal Procedure and Section 41‑A of the Code of Criminal Procedure. Similarly, the guidelines stated in Joginder Kumar versus State of Uttar Pradesh, and D.K. Basu versus State of West Bengal, are within the framework of the Code and the power of superintendence of the authorities in the hierarchical system of the investigating agency. The purpose has been to see that the investigating agency does not abuse the power and arrest people at its whim and fancy., In Rajesh Sharma, there is introduction of a third agency which has nothing to do with the Code and that apart, the Committees have been empowered to suggest a report failing which no arrest can be made. The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compoundable can be quashed by the High Court under Section 482 of the Code of Criminal Procedure. When settlement takes place, both parties can file a petition under Section 482 and the High Court, considering the bona fide of the petition, may quash the same. The power rests with the High Court. In this regard, we may reproduce a passage from a three‑Judge Bench in Gian Singh versus State of Punjab: Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. The cases where power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences such as murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to offences under special statutes like the Prevention of Corruption Act or offences committed by public servants while working in that capacity cannot provide a basis for quashing criminal proceedings involving such offences. But criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or offences arising out of matrimony relating to dowry, etc., or family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and continuation of the criminal case would put the accused to great oppression and prejudice., Though Rajesh Sharma takes note of Gian Singh, yet it seems to have applied it in a different manner. The seminal issue is whether these directions could have been issued by the process of interpretation. The Supreme Court of India, in furtherance of a fundamental right, has issued directions in the absence of law in certain cases, namely, Lakshmi Kant Pandey versus Union of India, Vishaka versus State of Rajasthan and Common Cause versus Union of India, and some others. In the obtaining factual matrix, there are statutory provisions and judgments in the field and, therefore, the directions pertaining to constitution of a committee and conferment of power on the said committee are erroneous. However, the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail, would stand on a different footing. They are protective in nature and do not sound a discordant note with the Code. When an application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498‑A Indian Penal Code. That cannot be considered at that stage. Therefore, we do not find anything erroneous in Directions 19.14 and 19.15. So far as Directions 19.16 and 19.17 are concerned, an application has to be filed either under Section 205 of the Code of Criminal Procedure or Section 317 of the Code of Criminal Procedure depending upon the stage at which the exemption is sought., In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar, D.K. Basu, Lalita Kumari and Arnesh Kumar. It will also be appropriate to direct the Director General of Police of each State to ensure that the investigating officers who are in charge of investigation of cases of offences under Section 498‑A Indian Penal Code should be imparted rigorous training with regard to the principles stated by the Supreme Court of India relating to arrest. The directions contained in paragraphs 19.1 to 19.11 as a whole are not in accord with the statutory framework and the direction issued in paragraph 19.12 shall be read in conjunction with the direction given hereinabove. Direction 19.13 is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh, shall dispose of the same. As far as Directions 19.14, 19.15, 19.16 and 19.17 are concerned, they shall be governed by what we have stated in paragraph 39. With the aforesaid modifications in the directions issued in Rajesh Sharma, the writ petitions and criminal appeal stand disposed of. There shall be no order as to costs., A Bench of two Judges of the Supreme Court of India (to which one of us, Justice Lalit, was a party) in its decision in Dr. Subhash Kashinath Mahajan versus State of Maharashtra issued the following directions in connection with prosecutions instituted in relation to offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: 79.1 Proceedings in the present case are clear abuse of process of court and are quashed. 79.2 There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken by the Gujarat High Court in Pankaj D. Suthar versus State of Gujarat and N.T. Desai versus State of Gujarat, and clarify the judgments of this Court in State of Madhya Pradesh versus Ram Kishna Balothia and Manju Devi versus Onkarjit Singh Ahluwalia. 79.3 In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non‑public servant after approval by the Senior Superintendent of Police which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention. 79.4 To avoid false implication of an innocent, a preliminary enquiry may be conducted by the Deputy Superintendent of Police concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. 79.5 Any violation of Directions 79.3 and 79.4 will be actionable by way of disciplinary action as well as contempt. 79.6 The above directions are prospective.
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The direction that an arrest of a public servant could be effected only after approval of the appointing authority and that of a non‑public servant could be effected only after approval by the Special Superintendent of Police; that the reasons for arrest could be scrutinised by the Magistrate for permitting further detention; and that a preliminary enquiry be conducted by the Deputy Superintendent of Police concerned to find out whether the allegations making out a case under the provisions of the Atrocities Act were frivolous or motivated., Union of India, being aggrieved, filed a review petition questioning the correctness of the directions issued in Dr. Subhash Kashinath Mahajan. A bench of three Judges of the Supreme Court of India considered the matter in Union of India v. State of Maharashtra and others. Various decisions were noticed by the Supreme Court of India and it was concluded: In re : Sanction of the appointing authority., Concerning public servants, the provisions contained in Section 197 of the Code of Criminal Procedure provide protection by prohibiting cognizance of the offence without the sanction of the appointing authority and the provision cannot be applied at the stage of the arrest. That would run against the spirit of Section 197 of the Code of Criminal Procedure. Section 41 of the Code of Criminal Procedure authorises every police officer to carry out an arrest in case of a cognizable offence and the very definition of a cognizable offence in terms of Section 2(c) of the Code of Criminal Procedure is one for which a police officer may arrest without warrant., If any person apprehends that he may be arrested, harassed and implicated falsely, he can approach the Supreme Court of India for quashing the FIR under Section 482 of the Code of Criminal Procedure as observed in State of Orissa v. Debendra Nath Padhi., While issuing the guidelines, approval of the appointing authority has been made imperative for the arrest of a public servant under the provisions of the Act in case he is an accused of having committed an offence under the 1989 Act. Permission of the appointing authority to arrest a public servant is not at all statutorily envisaged; it encroaches on a field which is reserved for the legislature. The direction amounts to a mandate having legislative colour which is a field not earmarked for the Supreme Court of India., The direction is discriminatory and would cause several legal complications. On what basis would the appointing authority grant permission to arrest a public servant? When the investigation is not complete, how can it determine whether the public servant is to be arrested or not? It would be appropriate for the appointing authority to look into the case diary in a case where its sanction for prosecution may not be required in an offence which has not happened in the discharge of official duty. Approaching the appointing authority for approval of arrest of a public servant in every case under the 1989 Act is likely to consume sufficient time. The appointing authority is not supposed to know the ground realities of the offence that has been committed, and arrest sometimes becomes necessary forthwith to ensure further progress of the investigation itself. Often the investigation cannot be completed without the arrest. There may not be any material before the appointing authority for deciding the question of approval. To decide whether a public servant should be arrested or not is not a function of the appointing authority; it is wholly extra‑statutory. In case the appointing authority holds that a public servant is not to be arrested and declines approval, there is no provision for grant of anticipatory bail. It would tantamount to taking away functions of the court. To decide whether an accused is entitled to bail under Section 438 of the Code of Criminal Procedure in case no prima facie case is made out or under Section 439 of the Code of Criminal Procedure is the function of the court. The direction of the appointing authority not to arrest may create conflict with the provisions of the 1989 Act and is without statutory basis., By the guidelines issued, the anomalous situation may crop up in several cases. If the appointing authority forms a view that, as there is no prima facie case, the incumbent is not to be arrested, several complications may arise. For the arrest of an offender, who may be a public servant, it is not the provision of the general law of the Code of Criminal Procedure that permission of the appointing authority is necessary. No such statutory protection is provided to a public servant in the matter of arrest under the Indian Penal Code and the Code of Criminal Procedure; therefore it would be discriminatory to impose such a rider in the cases under the 1989 Act. Only in the case of discharge of official duties, where some offence appears to have been committed, sanction to prosecute may be required and not otherwise. If the act is outside the purview of the official discharge of duty, no such sanction is required., The appointing authority cannot sit over an FIR in case of a cognizable, non‑bailable offence and investigation made by the police officer; this function cannot be conferred upon the appointing authority as it is not envisaged either in the Code of Criminal Procedure or the 1989 Act. Thus, this rider cannot be imposed in respect of the cases under the 1989 Act. While the provisions of the Act are sometimes misused, exercise of power of approval of arrest by the appointing authority is wholly impermissible, impractical and encroaches upon the field reserved for the legislature and is repugnant to the provisions of general law as no such rider is envisaged under the general law., Assuming it is permissible to obtain the permission of the appointing authority to arrest the accused would further worsen the position of the Scheduled Castes and Scheduled Tribes. If they are not to be given special protection, they should not be further put in a disadvantageous position. The implementation of the condition may discourage them from approaching the police and would cast a shadow of doubt on all members of the Scheduled Castes and Scheduled Tribes, which cannot be said to be constitutionally envisaged. Other cases can misuse the provisions of law; also, it cannot be said that misuse of law takes place by the provisions of the 1989 Act. If the direction is permitted to prevail, writ petitions may have to be filed to direct the appointing authority to consider whether the accused can be arrested or not and to record the reasons for permitting or denying the arrest. It is not the function of the appointing authority to intermeddle with a criminal investigation. If at the threshold approval of the appointing authority is made necessary for arrest, the very purpose of the Act is likely to be frustrated. Various complications may arise. Investigation cannot be completed within the specified time, nor can trial be completed as envisaged. The delay under the 1989 Act would add to the further plight of the downtrodden class., In re : Approval of arrest by the Special Superintendent of Police in the case of a non‑public servant. Inter alia for the reasons mentioned earlier, we are of the considered opinion that requiring the approval of the Special Superintendent of Police before an arrest is not warranted in such a case as that would be discriminatory and against the protective discrimination envisaged under the Act. Apart from that, no such guidelines can prevail, which are legislative. When there is no provision for anticipatory bail, arrest has to be made. Without doubting the bona fides of any officer, it cannot be left at the sweet discretion of the incumbent however high. The approval would mean that it can also be ordered that the person is not to be arrested; then how can the investigation be completed when the arrest of an incumbent is necessary? For an arrest of the accused such a condition of approval of the Special Superintendent of Police could not have been made a sine qua non; it may delay the matter in the cases under the 1989 Act., In re : Requiring the Magistrate to scrutinise the reasons for permitting further detention. As per the guidelines issued by the Supreme Court of India, the public servant can be arrested after approval by the appointing authority and that of a non‑public servant after the approval of the Special Superintendent of Police. The reasons so recorded have to be considered by the Magistrate for permitting further detention. In case approval has not been granted, this exercise has not been undertaken. When the offence is registered under the 1989 Act, the law should take its course; no additional fetters are called for on arrest whether in case of a public servant or non‑public servant. Even otherwise, as we have not approved the approval of arrest by the appointing authority or the Special Superintendent of Police, the direction to record reasons and scrutiny by the Magistrate consequently stands nullified., The direction has also been issued that the Deputy Superintendent of Police should conduct a preliminary inquiry to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. In case a cognizable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made as held in Lalita Kumari by a Constitution Bench. There is no such provision in the Code of Criminal Procedure for preliminary inquiry or under the Scheduled Castes and Scheduled Tribes Act; as such the direction is impermissible. Moreover, it is ordered to be conducted by a person of the rank of Deputy Superintendent of Police. The number of Deputy Superintendents of Police required for such an exercise of preliminary inquiry is not available. The direction would mean that even if a complaint makes out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. If a preliminary inquiry concludes that allegations are false or motivated, the FIR is not to be registered; in such a case how is a final report to be filed in the court? Direction 79.4 cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis‑à‑vis complaints lodged by members of upper caste. Therefore it should not be necessary to hold a preliminary inquiry for registering an offence under the Atrocities Act, 1989., We do not doubt that the directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution of India and are also impermissible within the parameters laid down by the Supreme Court of India for exercise of powers under Article 142 of the Constitution of India. Resultantly, we are of the considered opinion that Directions 79.3 and 79.4 issued by the Supreme Court of India deserve to be recalled and consequently we hold that Direction 79.5 also vanishes. The review petitions are allowed to the extent mentioned above., Paragraph 68 of this decision clearly held that the direction to hold a preliminary inquiry issued in Dr. Subhash Kashinath Mahajan was not consistent with the statutory framework, while paragraph 70 held that the directions issued by the two‑Judge Bench amounted to encroachment upon the field reserved for the legislature. The submissions regarding the second prayer in the writ petition are required to be considered in the backdrop of these decisions., In Jacob Mathew, the guidelines were issued after noticing Section 88 of the Indian Penal Code falling in Chapter titled General Exceptions as well as illustrations below Sections 88, 92 and 93 of the Indian Penal Code. The direction that a private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness and negligence on the part of the accused doctor was founded on reasons including the status of a medical professional acknowledged by Section 88 and the illustrations, as well as the fact that the investigating officers and the private complainant would not be supposed to have knowledge about medical science to determine whether the act of the accused professional amounted to a rash and negligent act within the domain of criminal law. It is true that the decision in P. Sirajuddin observed that there ought to be a preliminary inquiry before a first information report is registered against a public servant of any status. But today, with the establishment of vigilance cells in every governmental department or organisation, the preliminary inquiries are not strictly traceable to the direction issued by the Supreme Court of India. As a matter of fact, the accepted norm, be it in the form of CBI Manual or similar instruments, is to insist on a preliminary inquiry. One can also say that the protection to a public servant is the underlying principle under certain provisions like Section 197 of the Code of Criminal Procedure and as such there is some foundation in statutory provisions. On the other hand, directions (19.1 to 19.11) issued in Rajesh Sharma were not found to be in accord with the statutory framework and therefore did not meet with the approval of the decision of the larger bench of the Supreme Court of India. Similarly, the directions issued in Dr. Subhash Kashinath Mahajan regarding holding of a preliminary inquiry were not found consistent with the statutory framework. The second prayer made in the writ petition is asking for the constitution of a Committee completely outside the scope of the statutory framework. Similar such exercise of directing constitution of a Committee was found inconsistent with the statutory framework in the decisions discussed above. We are conscious that the directions issued in Jacob Mathew received approval by a Constitution Bench in Lalita Kumari, but those guidelines stand on parameters which are completely distinguishable from the subsequent decisions of the three‑Judge Bench of the Supreme Court of India in Union of India v. State of Maharashtra and others and in Social Action Forum for Manav Adhikar and Another v. Union of India, Ministry of Law and Justice and Others. Any relief granted in terms of the second prayer would certainly, in our view, amount to encroachment upon the field reserved for the legislature. We have, therefore, no hesitation in rejecting the prayer and dismissing the writ petition to that extent., It must however be clarified that every journalist will be entitled to protection in terms of Kedar Nath Singh, as every prosecution under Sections 124A and 505 of the Indian Penal Code must be in strict conformity with the scope and ambit of said sections as explained in, and completely in tune with, the law laid down in Kedar Nath Singh., In conclusion: i. We quash FIR No. 0053 dated 6.5.2020, registered at Police Station Kumarsain, District Shimla, Himachal Pradesh, against the petitioner; ii. but reject the prayer that no FIR be registered against a person belonging to media with at least ten years of standing unless cleared by the Committee as suggested. The writ petition is allowed to the aforesaid extent.
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Reportable Curative Petition (C) No. 44 of 2023, Review Petition (C) No. 704 of 2021, Civil Appeal No. 1599 of 2020 and Arbitration Petition No. 25 of 2023 were filed by Dr. Dhananjaya Y. Chandrachud, Chief Justice of India. The consequences of the failure to stamp an instrument under Section 35 of the Stamp Act render a document inadmissible but not void. The Arbitration Act will have primacy with respect to arbitration agreements because it is a special law, whereas the Indian Contract Act and the Stamp Act are general statutes. Parliament was aware of the Stamp Act when it enacted the Arbitration Act. Harmonious construction of the three statutes requires giving effect to the purpose of the Arbitration Act in addition to the Stamp Act., This Court has been called upon to resolve an issue which arose in the context of three statutes: the Arbitration and Conciliation Act, 1996, the Indian Stamp Act, 1899, and the Indian Contract Act, 1872. The Stamp Act imposes duty on instruments; an instrument which is unstamped or insufficiently stamped is inadmissible in evidence and cannot be acted upon in terms of its provisions. Arbitration agreements are often embedded in underlying instruments or substantive contracts. When an application is made for the appointment of an arbitrator, an objection is raised on the ground that the arbitration agreement is inadmissible because it is in an instrument which is unstamped or inadequately stamped. The primary issue is whether such arbitration agreements would be non-existent, unenforceable, or invalid if the underlying contract is not stamped., In N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., a Bench of three Judges of this Court was called upon in a Special Leave Petition to determine the enforceability of an arbitration agreement contained in an unstamped work order. The Bench, speaking through Justice Indu Malhotra, held that an arbitration agreement, being separate and distinct from the underlying commercial contract, would not be rendered invalid, unenforceable, or non-existent. The Court held that the non-payment of stamp duty would not invalidate even the underlying contract because it is a curable defect. In doing so, this Court adopted a view at variance with SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd. and Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd., In SMS Tea Estates (supra), a two‑Judge Bench of this Court held that an arbitration agreement in an unstamped contract could not be acted upon. A two‑Judge Bench in Garware Wall Ropes (supra) relied on SMS Tea Estates (supra) to hold that an arbitration agreement in an unstamped commercial contract would not exist as a matter of law and could not be acted upon until the underlying contract was duly stamped. The Court observed that an arbitration clause becomes a contract only if it is enforceable by law, and under the Stamp Act an agreement does not become a contract unless it is duly stamped. Consequently, the arbitration clause would not exist when it is not enforceable by law., The judgment in Hyundai Engineering case (United India Insurance Co. Ltd. v. Hyundai Engineering & Construction Co. Ltd.) is important because it considered an arbitration clause that would be activated only if an insurer admits or accepts liability. Since the insurer repudiated the claim, the arbitration clause, although present in the policy, would not exist in law. By analogy, the arbitration clause contained in the subcontract of the present case would not exist as a matter of law until the subcontract is duly stamped. The argument that Section 11(6‑A) deals with existence, as opposed to Sections 8, 16 and 45 which deal with validity, is answered by this Court's understanding of the expression \existence\ in the Hyundai Engineering case., A three‑Judge Bench of this Court in Vidya Drolia v. Durga Trading Corporation cited paragraph 29 of Garware Wall Ropes (supra) with approval for the proposition that an arbitration agreement exists only when it is valid and legal. The Court examined whether the word \existence\ in Section 11 merely refers to contract formation and excludes the question of enforcement. It held that existence of an arbitration agreement presupposes a valid agreement which would be enforced by the court by relegating the parties to arbitration. An agreement evidenced in writing has no meaning unless the parties can be compelled to adhere to its terms. Therefore, an arbitration agreement exists only when it meets the statutory requirements of both the Arbitration Act and the Contract Act and is enforceable in law., In N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. (the second reference, hereinafter N.N. Global 2), the Constitution Bench answered the reference by a majority of 3:2. The majority judgment, authored by Justice K.M. Joseph and Justice Aniruddha Bose with a concurring judgment by Justice C.T. Ravikumar, upheld the view taken by this Court in SMS Tea Estates (supra) and Garware Wall Ropes (supra). It held that (a) an unstamped instrument containing an arbitration agreement is void under Section 2(g) of the Contract Act; (b) an unstamped instrument, not being a contract and not enforceable in law, cannot exist in law and the arbitration agreement can be acted upon only after it is duly stamped; (c) the existence of an arbitration agreement contemplated under Section 11(6‑A) of the Arbitration Act is not merely facial existence but also existence in law; (d) the Court acting under Section 11 of the Arbitration Act cannot disregard the mandate of Sections 33 and 35 of the Stamp Act requiring it to examine and impound an unstamped or insufficiently stamped instrument; and (e) the certified copy of an arbitration agreement must clearly indicate the stamp duty paid. The minority judgment, authored by Justice Ajay Rastogi, held that the scope of the referral court under Section 11 is limited to the examination of the existence of an arbitration agreement and that stamping issues should be left to the arbitral tribunal under Section 16 of the Arbitration Act., Subsequent procedural history includes the following: On 20 July 2021, a review petition in Bhaskar Raju (supra) was dismissed on the ground of delay as well as on merits. On 7 December 2022, a curative petition was filed seeking reconsideration of Bhaskar Raju (supra). The Constitution Bench in N.N. Global 2 delivered its verdict on 25 April 2023. On 8 May 2023, a three‑Judge Bench issued notice in a petition for the appointment of an arbitrator in Seka Dobric v. SA Eonsoftech Private Limited. On 18 July 2023, a five‑Judge Bench issued notice in the curative petition in Bhaskar Raju (supra) and listed the matter for hearing on 24 August 2023. On 14 August 2023, the Bench in Seka Dobric observed that one of the objections pertained to non‑stamping of the arbitration agreement and directed the arbitration petition to be listed along with the curative petition. On 26 September 2023, a Bench of five Judges took up the arbitration petition together with the curative petition and, considering the larger ramifications of the view of the majority in N.N. Global 2, referred the proceedings to a seven‑Judge Bench. The seven‑Judge Bench listed the matter on 11 October 2023 and changed the cause title to: In Re: Interplay between the arbitration agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899., The petitioners broadly contend that N.N. Global 2 does not lay down the correct position of law. Mr. Arvind Datar, learned senior counsel, submitted that (a) Section 11(6‑A) of the Arbitration Act confines the referral court's power to the examination of the existence of an arbitration agreement and does not extend to the adequacy of stamping under Section 33 of the Stamp Act; (b) the majority in N.N. Global 2 has effectively nullified Section 11(6‑A); (c) mandating courts at the referral stage to follow the prescriptions of Section 33 would exceed the remit of examination; (d) the arbitral tribunal has competence to rule on its own jurisdiction, including stamping; (e) the non‑obstante clause in Section 5 of the Arbitration Act limits judicial intervention and must be read harmoniously with the Stamp Act; and (f) the requirement of stamping does not render an instrument void, only inadmissible until the defect is cured. Mr. Nikhil Sakhardande argued that the deficiency in stamping is a curable defect, that non‑payment of stamp duty cannot affect the validity of an arbitration agreement, and that mandating courts at the Section 8 or Section 11 stage to examine stamping would defeat the legislative purpose of minimal judicial interference. Mr. Darius J. Khambata emphasized the doctrine of separability, stating that an arbitration agreement is a self‑contained agreement distinct from the underlying contract and that non‑stamping does not invalidate it; he also noted that the majority disregarded the principle of competence‑competence by requiring the referral court to examine stamping. Mr. Gourab Banerjee submitted that the object of the Stamp Act is to protect public revenue, not to invalidate commercial instruments, and that investigating stamping at the referral stage is contrary to the plain language of Section 11(6‑A). Mr. Jayant Mehta argued that non‑compliance with the Stamp Act is curable, that the majority view creates difficulty in seeking interim measures under Section 9 of the Arbitration Act, and that a fiscal statute does not bar the entertainability of a lis unless expressly prescribed., The respondents largely contend that N.N. Global 2 is correct and aligns with the consistent position adopted by this Court in SMS Tea Estates (supra) and Garware Wall Ropes (supra). Mr. Shyam Divan submitted that the curative petition is not maintainable because none of the pleaded grounds meet the requirements set out in Rupa Ashok Hurra v. Ashok Hurra, and therefore the reference to a seven‑Judge Bench is without jurisdiction; he also argued that Section 11(6‑A) requires a prima facie examination of both existence and validity of an arbitration agreement and that Section 33 of the Stamp Act imposes a mandatory requirement on courts to impound an unstamped instrument. Mr. Nikhil Nayyar contended that the expression \examination\ in Section 11(6‑A) contemplates examination of the validity of an arbitration agreement, including sufficiency of stamping, and that Section 11(6‑A) was not intended to overcome the effect of SMS Tea Estates. Mr. Nakul Dewan emphasized that the principle of separability in Section 16 implies that an arbitration agreement can be treated as distinct only for determining its validity or enforceability, and that the court exercising powers under Section 11 is not designated to receive evidence for substantive adjudication; therefore, unstamped instruments should not derail the appointment of an arbitrator at the referral stage., We address the preliminary issue of maintainability. Notice was issued in the curative petition on 18 July 2023. Subsequently, in Seka Dobric, a three‑Judge Bench directed the Section 11 application to be listed along with the curative petition. On 26 September 2023, the five‑Judge Bench differed with the view taken in N.N. Global 2 and referred the issue to a seven‑Judge Bench. Thus, both the curative petition and a Section 11 petition are listed before this Court. Judicial discipline requires that a Bench of lower strength be bound by the decision of a larger Bench, although there are exceptions. The Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan held that curative petitions fall within the expression \other proceeding\ under Order VI Rule 2 of the Supreme Court Rules, 2013, and therefore the reference to a seven‑Judge Bench is proper. The reference raises important points of law that require immediate consideration., The two exceptions to the rules on judicial discipline, as laid down in Central Board of Dawoodi Bohra Community, are: (i) the Chief Justice may direct any particular matter to a Bench of any strength; and (ii) if a matter has already come up before a larger Bench and that Bench feels that a view of a lesser Bench needs correction, it may proceed to hear the case without a specific reference. These exceptions are to be invoked cautiously in situations involving wide ramifications for the law.
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State of Uttar Pradesh. Justice V. R. Krishna Iyer, speaking for the Constitution Bench, observed that the legislative policy in the country must accept as final the pronouncements of this Court by a Constitution Bench unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in light of the later thought that it is wiser to be ultimately right than to be consistently wrong. We are of the opinion that the reference by the five‑Judge Bench raises a question of seminal importance with regard to the interpretation and application of the arbitration law in India, which in turn has implications for business and commerce in the country. Accordingly, we will answer the reference without delving into the facts of the individual cases. The issue of maintainability of the curative petition is left open and could be raised by the respondent before an appropriate Bench., The Indian Stamp Act, 1899 – Overview. As the title suggests, the Stamp Act is legislation which consolidates the laws relating to the payment of stamp duty on the execution of certain instruments in the manner specified in the statute. Section 2(14) defines instrument as follows: (14) instrument includes (a) every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded; (b) a document, electronic or otherwise, created for a transaction in a stock exchange or depository by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded; and (c) any other document mentioned in Schedule I, but does not include such instruments as may be specified by the Government by notification in the Official Gazette., The term instrument is defined broadly in an inclusive sense and includes electronic documents. Schedule I to the Stamp Act contains descriptions of various instruments along with the stamp duty payable on each of them. Stamp duty is liable to be paid under Section 3, which provides: Section 3 – Instrument chargeable with duty. Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty respectively: (a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in India on or after the first day of July 1899; (b) every bill of exchange payable otherwise than on demand, or promissory note drawn or made out of India on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiated, in India; and (c) every instrument (other than a bill of exchange or promissory note) mentioned in that Schedule, which, not having been previously executed by any person, is executed out of India on or after that day, relates to any property situate, or to any matter or thing done or to be done, in India and is received in India., No duty shall be chargeable in respect of (1) any instrument executed by, on behalf of, or in favour of the Government where the Government would otherwise be liable to pay the duty; (2) any instrument for the sale, transfer or other disposition of any ship or vessel, or any part, interest, share or property of any ship or vessel registered under the Merchant Shipping Act, 1894, or under the India Registration of Ships Act, 1841, as amended; (3) any instrument executed by, on behalf of, or in favour of the Developer, Unit or in connection with the carrying out of purposes of a Special Economic Zone. For the purposes of this clause, the expressions Developer, Special Economic Zone and Unit shall have the meanings assigned to them in clauses (g), (za) and (zc) of Section 2 of the Special Economic Zones Act, 2005., Section 3 provides that the three categories of instruments in clauses (a), (b) and (c) shall be chargeable with duty of the amount indicated in Schedule I. The proviso to Section 3 indicates three other categories in respect of which no duty shall be chargeable. Under Section 5 of the Stamp Act, the duty chargeable on any instrument which comprises or relates to several distinct matters is the aggregate amount of the duties that separate instruments (each comprising or relating to one of the many matters) would be chargeable under the same statute. Section 6 governs situations where the same instrument falls within two or more of the descriptions in Schedule I. If the duties chargeable under the different descriptions are different, the instrument shall be chargeable with the highest of them, subject to the provisions of Section 5. Section 6 cannot be relied on to avoid payment of stamp duty if an instrument relates to several distinct matters each covered by a distinct entry in Schedule I. Section 6 is applicable only when an instrument relates to a single matter covered by two or more descriptions in Schedule I, or when a single matter in an instrument relating to several distinct matters is covered by two or more descriptions in that schedule., Sections 13 and 14 indicate the mode of stamping. Under Section 13, every instrument written upon paper stamped with an impressed stamp shall be written in such a manner that the stamp may appear on the face of the instrument and cannot be used for or applied to any other instrument. Section 14 stipulates that no second instrument chargeable with duty shall be written upon a piece of stamped paper on which an instrument chargeable with duty has already been written. Section 15 is significant because it indicates the effect of non‑compliance with Sections 13 and 14: instruments written in contravention of Section 13 or Section 14 shall be deemed to be unstamped., Chapter II of the Stamp Act provides for various other contingencies, including policies of sea‑insurance, bonds, debentures, securities, transactions in stock exchanges and depositories, and instruments executed outside India. Chapter II also provides for the valuation of stamp duty, including conversion of amounts expressed in foreign currencies, valuation of stock and marketable securities, effect of statement of rate of exchange or average price, instruments reserving interest, instruments connected with mortgages of marketable securities, transfer and consideration of debt, valuation in case of annuity, and stamp where value of subject‑matter is indeterminate., Section 29 indicates who the stamp duty is to be borne by in the absence of an agreement to the contrary, and Section 30 stipulates that a receipt must be given in certain cases. A person may also apply to the Collector for his opinion as to the duty, if any, payable on a particular instrument under Section 31. The instrument given to the Collector for his opinion may be executed or previously stamped, but there is no requirement that it must be either executed or previously stamped. If an instrument brought to the Collector under Section 31 is, in his opinion, chargeable with duty and already fully stamped, or the duty has already been paid, the Collector shall certify by endorsement that the full duty has been paid. If the Collector is of the opinion that the instrument is not chargeable with duty, he shall certify that it is not so chargeable., Any instrument upon which an endorsement has been made under Section 32 shall be deemed to be duly stamped or not chargeable with duty, as the case may be. The proviso to Section 32 lists three categories of instruments which the Collector is not authorised to endorse under the same section., Chapter IV details the procedure to be followed by various authorities if instruments liable to be stamped are not duly stamped. Chapter V provides for allowances for stamps (such as spoiled or misused stamps) in certain cases and Chapter VI provides for reference of cases arising under the enactment to authorities including the High Courts as well as for the revision of certain decisions of courts regarding the sufficiency of stamps. Chapter VII indicates the penalties for non‑compliance with its provisions and Chapter VIII contains certain supplementary provisions in relation to the statute., Section 17 provides that all instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution. Section 62 inter alia penalises a failure to comply with Section 17. Despite the mandate, many instruments are not stamped or are insufficiently stamped. Parties may attempt to avoid payment of stamp duty and refrain from stamping. Instruments may also be improperly stamped because: (a) duty may have been paid under an incorrect description in Schedule I; (b) duty paid may be of sufficient amount but of improper description; (c) provisions of Section 5 governing instruments relating to several distinct matters may not have been complied with; (d) the instrument may be written in contravention of Sections 13 and 14 and thereby deemed unstamped under Section 15., The legislature recognised that compliance may not be possible for the reasons listed above, and therefore enacted the provisions in Chapter IV. Section 33 provides that every person who has authority to receive evidence (either by law or by consent of parties) shall impound an instrument which, in his opinion, is chargeable with duty but appears not to be duly stamped. The power may be exercised when an instrument is produced before the authority or encountered in the performance of functions. Persons in charge of public office except police officers are similarly empowered. The provision reads: (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except a police officer, before whom any instrument chargeable, in his opinion, with duty is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed. Provided that (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit to do so, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument may be delegated to such officer as the Court appoints., Section 35 is of particular significance to the issue before the Supreme Court of India. It renders instruments which are not duly stamped inadmissible in evidence. Section 35 reads: No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Provided that (a) any such instrument shall be admitted in evidence on payment of the duty with which it is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act., In terms of Section 35, an instrument which is not duly stamped is inadmissible in evidence for any purpose and shall not be acted upon, registered, or authenticated. Clause (a) of the proviso to Section 35 stipulates that the bar is removed upon payment of duty and the penalty, if any. The party or parties may pay the duty chargeable to the person who has the authority to receive evidence by law or by consent of parties. Section 35 gives teeth to the Stamp Act by ensuring that stamp duty is paid before rights and obligations arising from an agreement are enforced., Section 38(1) indicates how an instrument which is impounded is to be dealt with: (1) Where the person impounding an instrument under Section 33 has authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf. (2) In every other case, the person so impounding an instrument shall send it in original to the Collector., The Collector is conferred with the power to impound an instrument under Section 33. If any other person or authority impounds an instrument, it must be forwarded to the Collector under clause (2) of Section 38. Once the Collector receives an instrument, he has the power to stamp it under Section 40, if it is not a bill of exchange, a promissory note, or an instrument that is chargeable with a duty that exceeds ten paise. The Collector may: (a) certify by endorsement that the instrument is duly stamped; (b) certify by endorsement that the instrument is not chargeable with duty; (c) require the payment of the proper duty or the amount required to make up the proper duty, if the instrument is chargeable with duty and is not duly stamped. The Collector may also levy a penalty as provided by Section 40. If the instrument has been sent to the Collector under Section 38, it must be returned to the impounding officer after it is dealt with as described above., In terms of Section 42 of the Stamp Act, an instrument is admissible in evidence once the payment of duty and any penalty is complete. Either the person admitting the instrument in evidence or the Collector, as the case may be, shall certify by endorsement that the proper duty has been paid., The procedure contemplated by the Stamp Act facilitates the collection of revenue. It permits instruments to be impounded not only by persons in charge of a public office or those empowered by law to receive evidence but also by any person empowered to receive evidence by consent of parties. The statute then sets out the procedure to be followed upon impounding a document, ensuring that stamp duty is paid. After payment of the appropriate amount under the appropriate description in Schedule I and any penalty, the Stamp Act provides for certification of such payment by an endorsement by the appropriate authority. Once an instrument has been endorsed, it may be admitted into evidence, registered, acted upon or authenticated as if it had been duly stamped., The admissibility of an instrument in evidence is distinct from its validity or enforceability in law. Section 2(g) of the Contract Act provides that an agreement not enforceable by law is void. The admissibility of a particular document or oral testimony refers to whether it can be introduced into evidence. P. Ramanatha Aiyar's The Law Lexicon defines admissible as \proper to be received, capable and worthy of being admitted.\ As applied to evidence, the term means that the court is bound to receive it. Many statutes have rules on the admissibility of documents, with the Indian Evidence Act, 1872 being one of them., An agreement can be void without its nature as a void agreement having an impact on whether it may be introduced in evidence. Similarly, an agreement can be valid but inadmissible in evidence. For example, an agreement restraining a party from undertaking a particular trade would be void under Section 27 of the Contract Act but its inadmissibility in evidence is a separate issue. The court will not enforce the agreement because it is void, but the agreement is nonetheless admissible in evidence., When an agreement is void, we are speaking of its enforceability in a court of law. When it is inadmissible, we are referring to whether the court may consider or rely upon it while adjudicating the case. This is the essence of the difference between voidness and admissibility., Section 27 of the Contract Act provides that every agreement by which any person is restrained from exercising a lawful profession, trade or business of any kind is void, subject to the saving that a person who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within specified local limits, provided such limits appear reasonable to the court., The majority judgment in N.N. Global 2 summed up its holding: An agreement which is unstamped or insufficiently stamped is not enforceable as long as it remains in that condition. Such an instrument would be void as being not enforceable. The observation conflates the distinction between enforceability and admissibility., Section 35 of the Stamp Act is unambiguous. It stipulates that no instrument chargeable with duty shall be admitted in evidence. The term \admitted in evidence\ refers to admissibility. Sub‑section (2) of Section 42 states that an instrument for which stamp duty is paid and which is endorsed as such will be admissible in evidence. The effect of not paying duty or paying an inadequate amount renders an instrument inadmissible and not void. Non‑stamping or improper stamping does not render the instrument invalid. The Stamp Act does not render such an instrument void; the non‑payment of stamp duty is a curable defect, and the Act provides the manner in which the defect may be cured., In Thiruvengadam Pillai v. Navaneethammal, this Court noted that the trial court and the High Court had doubted the authenticity of an agreement for the sale of immovable property because it was written on two stamp papers purchased on different dates. The Court held that this by itself would not invalidate the agreement. The Court observed that the Stamp Act is a fiscal enactment intended to secure revenue for the State and that a document cannot be termed invalid merely because it is written on two stamp papers purchased on different dates. Even assuming that use of such stamp papers is an irregularity, the court can deem the document not properly stamped but cannot hold it invalid. An agreement executed on plain paper can be admitted in evidence by paying duty and penalty under Sections 35 or 37 of the Stamp Act, 1899, and the same applies to an agreement executed on two stamp papers., The position of law has been consistent. In Gulzari Lal Marwari v. Ram Gopal, the Calcutta High Court held that the effect of Section 35 is to make an unstamped document inadmissible in evidence and unable to be acted upon by persons having authority to receive evidence or by any public officer. It does not affect the validity of the document. No section of the Indian Stamp Act renders a document invalid., In N.N. Global 2, this Court held that the failure to stamp an arbitration agreement is not a curable defect. Relying on the provisions of the Contract Act and Section 11(6‑A) of the Arbitration Act, it held that an unstamped arbitration agreement is void. The Court stated: It may not be apposite to merely describe an unstamped arbitration agreement as a curable defect. As long as it remains an unstamped instrument, it cannot be taken notice of for any purpose under Section 35 of the Stamp Act. It remains unenforceable and void., Section 2(j) of the Contract Act provides that a contract which ceases to be enforceable by law becomes void when it ceases to be enforceable. Section 2(j) is not attracted when an instrument is rendered inadmissible under Section 35 of the Stamp Act. The effect of the latter is not to render an unstamped agreement unenforceable; if it were unenforceable, it would be void. As discussed, an unstamped or inadequately stamped agreement is not void., Section 11(6‑A) of the Arbitration Act provides that the Supreme Court or, as the case may be, the High Court, while considering any application under sub‑section (4), (5) or (6), shall, notwithstanding any judgment, decree or order of any court, confine its examination to the existence of an arbitration agreement., In Vidya Drolia, this Court held that the term \agreement\ is not defined in the Arbitration Act, albeit it is defined in Section 10 of the Contract Act, 1872 as contracts made by free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void.
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Section 10 of the Contract Act also stipulates that the aforesaid requirements shall not affect any law in force in India (and not expressly repealed) by which a contract is required to be made in writing, in the presence of witnesses or any law relating to registration of documents. Thus, an arbitration agreement should satisfy the mandate of Section 10 of the Contract Act, in addition to satisfying other requirements stipulated in Section 7 of the Arbitration Act. The above observations are correct insofar as the arbitration agreement must satisfy the requirements of the Contract Act. However, the authority empowered to adjudicate whether the requirements of the Contract Act are satisfied is the arbitral tribunal, under Section 16 of the Arbitration Act. This is addressed in greater detail in the following segments., The purpose of the Stamp Act is to raise revenue for the government; it is a mandatory fiscal statute. In Hindustan Steel Ltd. v. Dilip Construction Co., the Supreme Court of India dealt with the import of Sections 35, 36 and 39 of the Stamp Act. One of the parties relied on the difference in the phraseology between Sections 35 and 36 to argue that an instrument which was insufficiently stamped or not stamped could be admitted in evidence upon payment of duty and a penalty, but that it could not be acted upon once admitted. It was argued that Section 35 operates as a bar in two respects, namely, the admission of an instrument into evidence as well as acting upon that instrument, whereas Section 36 removed the bar only with respect to admissibility of the instrument into evidence. The Supreme Court of India rejected this argument and held that the provisions of the Stamp Act clearly provide that an instrument could be admitted into evidence as well as acted upon once the appropriate duty has been paid and the instrument is endorsed., The Court observed that Section 36 provides that an instrument once admitted in evidence shall not be called into question at any stage of the same suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument on the ground that it shall not be acted upon because it is not duly stamped; rather, there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the terms of Section 42(2), which enact, in unmistakable terms, that every instrument endorsed by the Collector under Section 42(1) shall be admissible in evidence and may be acted upon as if it has been duly stamped. In so holding, the Supreme Court of India made a significant observation about the purpose of the Stamp Act and the manner in which it is to be interpreted by courts: the Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments; it is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue, and once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument., E. The Arbitration and Conciliation Act 1996. Arbitration is a method of alternative dispute resolution where parties agree to refer their disputes to a neutral third party known as an arbitrator. The aim of arbitration is to provide speedy, efficient, and binding resolution of disputes that have arisen between the parties in regard to their substantive obligations. The thrust of arbitration law is succinctly encapsulated in Redfern and Hunter: it is to be expeditious where the law is slow, cheap where the law is costly, simple where the law is technical, a peacemaker instead of a stirrer‑up of strife., Before the enactment of the Arbitration Act, the law on arbitration was contained in the Arbitration Act 1940, the Arbitration (Protocol and Convention) Act 1937, and the Foreign Awards (Recognition and Enforcement) Act 1961. In 1978, the Law Commission of India suggested substantial amendments to the 1940 Act to make it more responsive to contemporary legal and economic requirements. Meanwhile, the United Nations Commission on International Trade Law adopted the Model Law in 1985 to foster the development of a unified legal framework for the fair and efficient settlement of disputes arising in international commercial arbitration. The General Assembly of the United Nations recommended to all states to give due consideration to the Model Law in view of the desirability of achieving uniformity of the law of arbitral procedure and the specific needs of international commercial arbitration practice., The Arbitration Act was enacted to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards, as well as to define the law relating to conciliation and matters connected therewith or incidental thereto. In the process, the Arbitration Act repealed the 1940 Act, the Arbitration (Protocol and Convention) Act 1937, and the Foreign Awards (Recognition and Enforcement) Act 1961. It also brought domestic as well as international commercial arbitration in consonance with the Model Law, the New York Convention, and the Geneva Convention. The Arbitration Act is divided into four parts: Part I deals with domestic and international arbitration that takes place in India; Part II deals with the enforcement of foreign arbitral awards under the New York Convention and the Geneva Convention; Part III deals with conciliation; and Part IV contains supplementary provisions. In the present reference, we are largely concerned with Part I of the Arbitration Act. The important principles which animate the law on arbitration, as indeed the Arbitration Act, are discussed in the following segment. These principles act as important aids to interpret the Arbitration Act., i. Arbitral autonomy. In medieval England, recourse to arbitration was commonplace among merchants and traders. During the seventeenth and eighteenth centuries, settlement of commercial disputes by arbitration was encouraged by both Chancery and the courts. In light of the widespread use of arbitration, coupled with a rapid decline in court litigation, the English courts began to actively discourage arbitration as a dispute resolution mechanism. Judicial scepticism towards arbitration proceedings mainly stemmed from the attitude of judges that every activity that occurred within a jurisdiction should be within the purview of state law and courts., As cross‑border commerce and transactions proliferated, companies and businesses sought different ways to resolve their commercial disputes. The formality, customs, and legal traditions of national courts were at variance with the intention of the parties to achieve a speedy and efficient resolution of their disputes. The internationalisation of trade and commerce in the middle of the nineteenth century necessitated the regulation and institutionalisation of arbitration. In the process, arbitration was also detached from national legal systems, with the growth of arbitral institutions such as the London Chamber of Arbitration and the International Chamber of Commerce. This new regime of arbitration law paved the way for greater recognition of the mutual intention of parties and the authority of arbitral tribunals to resolve disputes without being bogged down by the intricacies of national legal systems. Accordingly, national laws were changed to reflect the principle of judicial non‑interference in arbitration proceedings. The demands of commerce and business efficiency meant that control by national courts became subordinate to the intention of the parties and the authority of the arbitral tribunal., The principle of arbitral autonomy is an integral element of the ever‑evolving domain of arbitration law. Arbitral autonomy means that the parties to an arbitration agreement can exercise their contractual freedom to bestow the arbitral tribunal with the authority to decide disputes that may arise between them. The basis of arbitral autonomy is to give effect to the true intention of parties to distance themselves from the risk of domestic judicial parochialism. The principle of judicial non‑interference reflects the autonomy of arbitral tribunals. Arbitral tribunals are autonomous in the sense that they are constituted to give effect to the mutual intention of the parties to settle their disputes through a neutral and expert authority of their choice. Moreover, the competence of an arbitral tribunal to rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, also indicates that the arbitral tribunal enjoys sufficient autonomy from the national courts., Section 9 of the Code of Civil Procedure 1908 provides that the courts shall have jurisdiction to try all suits of a civil nature except suits of which cognizance is either expressly or impliedly barred. Section 28 of the Contract Act states that agreements that restrict a party to a contract absolutely from enforcing their rights under or in respect of any contract by way of usual legal proceedings are void. However, the provision expressly saves contracts by which two or more persons agree to refer any dispute which may arise between them to arbitration. By choosing to settle their disputes through arbitration, parties surrender their right to litigate before the national courts in favour of the arbitral tribunal. By surrendering their right to litigate in national courts, parties also surrender their right to be bound by national procedural laws in favour of expedition, informality, and efficiency of the arbitral process. The arbitral tribunal is not subject to the procedural laws of a country. For instance, Section 19 of the Arbitration Act expressly provides that the arbitral tribunal shall not be bound by the Code of Civil Procedure 1908 or the Indian Evidence Act 1872. Moreover, it stipulates that an arbitral tribunal may conduct the proceedings in any manner it deems appropriate if the parties fail to agree on the procedure to be followed by the tribunal. Although arbitral tribunals have autonomy in the procedural and substantive sense, they are not completely independent of the law of the country in which the arbitral tribunal has its juridical seat., The principle of judicial non‑interference in arbitral proceedings is fundamental to both domestic as well as international commercial arbitration. The principle entails that the arbitral proceedings are carried out pursuant to the agreement of the parties or under the direction of the tribunal without unnecessary interference by the national courts. This principle serves to proscribe judicial interference in arbitral proceedings, which would undermine the objective of the parties in agreeing to arbitrate their disputes, their desire for less formal and more flexible procedures, and their desire for neutral and expert arbitral procedures. The principle of judicial non‑interference in arbitral proceedings respects the autonomy of the parties to determine the arbitral procedures. This principle has also been incorporated in international instruments, including the New York Convention and the Model Law. Article 5 of the Model Law deals with the extent of court intervention. It states that in matters governed by this Law, no court shall intervene except where so provided in this Law. The drafters of the Model Law deemed it important to incorporate this article to provide certainty to the parties and the arbitrators about the instances in which court supervision or assistance was to be expected. By including the introductory words 'in matters governed by this Law', the scope of the provision was limited only to matters which were governed by or regulated in the Model Law. The purpose was to ensure that no judicial authority assigns to itself the power that has been expressly and exclusively bestowed upon the arbitral tribunal. For instance, Article 16 of the Model Law confers upon the arbitral tribunal an exclusive power to rule on its jurisdiction including dealing with objections pertaining to the existence and validity of an arbitration agreement. The Model Law does not regulate or govern all matters related to international commercial arbitration as well as the arbitral process. Similarly, Article 5 does not bar national courts from intervening in matters not governed by the Model Law. The United Nations Working Group itself identified certain situations not dealt with under the Model Law where national courts could intervene, such as capacity of parties to conclude an arbitration agreement, impact of state immunity, competence of the arbitral tribunal to adapt contracts, enforcement by courts of interim measures of protection ordered by the arbitral tribunal, fixing of fees or request for deposit including security for fees or costs, and time‑limit for enforcement of awards., Section 5 of the Arbitration Act is based on Article 5 of the Model Law. However, Section 5 also incorporates a non‑obstante clause setting out the scope of judicial intervention. It reads: 'Extent of judicial intervention – Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.' Two aspects become clear from a comparison of Section 5 with Article 5 of the Model Law: first, Section 5 begins with a non‑obstante clause unlike Article 5; second, it limits the scope of judicial intervention to the extent so provided in Part I. One of the main objectives of the Arbitration Act is to minimise the supervisory role of courts in the arbitral process. Party autonomy and settlement of disputes by an arbitral tribunal are the hallmarks of arbitration law. Section 5 gives effect to the true intention of the parties to have their disputes resolved through arbitration in a quick, efficient, and effective manner by minimising judicial interference in the arbitral proceedings. Parliament enacted Section 5 to minimise the supervisory role of courts to the bare minimum, and only to the extent so provided under Part I of the Arbitration Act. In doing so, the legislature did not altogether exclude the role of courts or judicial authorities in arbitral proceedings, but limited it to circumstances where the support of judicial authorities is required for the successful implementation and enforcement of the arbitral process. The Arbitration Act envisages the role of courts to support the arbitration process by providing necessary aid and assistance when required by law in certain situations., The non‑obstante clause begins with the expression 'notwithstanding anything contained in any other law for the time being in force'. It is Parliament's addition to Article 5 of the Model Law. It is of wide amplitude and sets forth the legislative intent of limiting judicial intervention during the arbitral process. In the context of Section 5, this means that the provisions contained in Part I of the Arbitration Act ought to be given full effect and operation irrespective of any other law for the time being in force. It is now an established proposition of law that the legislature uses non‑obstante clauses to remove all obstructions which might arise out of the provisions of any other law, which stand in the way of the operation of the legislation which incorporates the non‑obstante clause. A non‑obstante clause is appended in a provision to give such provision overriding effect over other provisions of the law. Justice Sabyasachi Mukharji explained that a clause beginning with the expression 'notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract' is more often than not appended to a section with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision of the act or the contract mentioned in the non‑obstante clause., Although a non‑obstante clause must be allowed to operate with full vigour, its effect is limited to the extent intended by the legislature. In ICICI Bank Ltd v. SIDCO Leathers Ltd, a two‑Judge Bench of the Supreme Court of India held that a non‑obstante clause must be interpreted by confining it to the legislative policy. Thus, even if a non‑obstante clause has wide amplitude, the extent of its impact has to be measured in view of the legislative intention and legislative policy. In view of this settled legal position, the issue that arises for our consideration is the scope of the non‑obstante clause contained in Section 5 of the Arbitration Act., In Morgan Securities & Credit (P) Ltd. v. Modi Rubber Ltd., the issue before the two‑Judge Bench was whether the provisions of the Arbitration Act would prevail over the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985. While noting the non‑obstante clause contained in Section 5 of the Arbitration Act, the Supreme Court of India held that the non‑obstante clause has limited application aiming at the extent of judicial intervention. It was held that the Arbitration Act would not prevail over the Sick Industrial Companies Act since the latter enactment seeks to achieve a higher goal. In other words, the scope of the non‑obstante clause is limited to prohibiting the intervention of judicial authorities, unless it has been expressly provided for under Part I of the Arbitration Act., Similar to Article 5 of the Model Law, Section 5 uses the expression 'in matters governed by this Part'. The use of this expression circumscribes the scope of judicial intervention to matters expressly governed by Part I of the Arbitration Act. The matters governed by Part I inter alia include: Section 8 which mandates judicial authorities to refer parties to arbitration when prima facie there is a valid arbitration agreement; Section 9 which allows courts to issue interim measures on an application made by a party to an arbitration agreement; Section 11 which empowers the Supreme Court or the High Courts to appoint arbitrators on an application made by parties to an arbitration agreement; Section 27 which allows the arbitral tribunal to request the court for assistance in taking evidence; and Section 34 which empowers the court to set aside an arbitral award on the basis of the limited grounds mentioned therein., Section 5 has two facets, positive and negative. The positive facet vests judicial authorities with jurisdiction over arbitral proceedings in matters expressly allowed in or dealt with under Part I of the Arbitration Act. The flip side is that judicial authorities are prohibited from intervening in arbitral proceedings in situations where the arbitral tribunal has been bestowed with exclusive jurisdiction. This is the negative facet of Section 5. The non‑obstante clause limits the extent of judicial intervention in respect of matters expressly provided under the Arbitration Act. In Bhaven Construction v. Sardar Sarovar Narmada Nigam Ltd, a Bench of three Judges of the Supreme Court of India observed that the non‑obstante clause is provided to uphold the intention of the legislature as provided in the Preamble to adopt the United Nations Model Law and Rules, to reduce excessive judicial interference which is not contemplated under the Arbitration Act., One of the main objectives behind the enactment of the Arbitration Act was to minimise the supervisory role of courts in the arbitral process by confining it only to the circumstances stipulated by the legislature. For instance, Section 16 of the Arbitration Act provides that the arbitral tribunal may rule on its own jurisdiction, including ruling on any objection with respect to the existence or validity of the arbitration agreement. The effect of Section 16, bearing in view the principle of minimum judicial interference, is that judicial authorities cannot intervene in matters dealing with the jurisdiction of the arbitral tribunal. Although Sections 8 and 11 allow courts to refer parties to arbitration or appoint arbitrators, Section 5 limits the courts from dealing with substantive objections pertaining to the existence and validity of arbitration agreements at the referral or appointment stage. A referral court at the Section 8 or Section 11 stage can only enter into a prima facie determination. The legislative mandate of prima facie determination ensures that the referral courts do not trammel the arbitral tribunal's authority to rule on its own jurisdiction., The Arbitration Act is a self‑contained code. In Girnar Traders v. State of Maharashtra, a Constitution Bench of the Supreme Court of India observed that a self‑contained code is a complete legislation with regard to the purpose for which it is enacted. Such a self‑contained code provides for a complete machinery to deal with the purpose sought to be achieved by that law and its dependence on other legislations is either absent or minimal. A two‑Judge Bench of the Supreme Court of India, in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd, explained that the Arbitration Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the United Nations Model Law, must be held to be a self‑contained code. Once it is held that the Arbitration Act is a self‑contained and exhaustive code, it must also be held, using the lucid expression of Justice Tulzapurkar, that it carries with it a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done. In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self‑contained code the applicability of the general law procedure would be impliedly excluded., The Arbitration Act is a self‑contained code inter alia with respect to matters dealing with appointment of arbitrators, commencement of arbitration, making of an award and challenges to the arbitral award, as well as execution of such awards. When a self‑contained code sets out a procedure, the applicability of a general legal procedure would be impliedly excluded. Being a self‑contained and exhaustive code on arbitration law, the Arbitration Act carries the imperative that what is permissible under the law ought to be performed only in the manner indicated, and not otherwise. Accordingly, matters governed by the Arbitration Act such as the arbitration agreement, appointment of arbitrators and competence of the arbitral tribunal to rule on its jurisdiction have to be assessed in the manner specified under the law. The corollary is that it is not permissible to do what is not mentioned under the Arbitration Act. Therefore, provisions of other statutes cannot interfere with the working of the Arbitration Act, unless specified otherwise., The Stamp Act and the Indian Arbitration Act, 1899 came into force on the same day, that is, 1 July 1899. The Arbitration Act, 1899, which was enacted more than a century ago, did not have minimum judicial interference as its avowed object. However, the law on arbitration has undergone a sea change over the course of a century. The Arbitration Act represents the principles of modern arbitration, which seeks to give effect to the mutual intention of the parties to resolve their disputes by a neutral third‑party arbitral tribunal, whose decision is final and binding on all the parties. Arbitration law allows the parties to design arbitral procedures, which ensures efficiency and expediency of the arbitration process. One of the reasons that business and commercial entities prefer arbitration is because it obviates cumbersome judicial processes, which can often prove expensive, complex, and interminable. Most legal jurisdictions have also recognised and adopted legal approaches that favour arbitration at both the domestic and international level. In the process, national courts have given effect to principles such as the separability presumption and jurisdictional competence of the arbitral tribunal. Modern arbitration law does not completely restrict the role of national courts in the arbitration process, but gives priority to the arbitral tribunal to decide on disputes and issues pertaining to arbitration agreements as well as the substantive rights of the parties. The Arbitration Act reflects these aspects of modern arbitration law. It is the duty of the Supreme Court of India to interpret the Arbitration Act in a manner which gives life to the principles of modern arbitration in India., F. The law on the arbitration agreement.
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An arbitration agreement is the foundation of arbitration as it records the consent of the parties to submit their disputes to arbitration. In Bihar State Mineral Development Corporation v. Encon Builders, the Supreme Court of India enlisted the essential elements of an arbitration agreement as follows: there must be a present or future difference in connection with some contemplated affair; there must be the intention of the parties to settle such disputes by a private tribunal; the parties must agree in writing to be bound by the decision of such tribunal; and the parties must be ad idem. Section 2(b) of the Arbitration Act defines an arbitration agreement to mean an agreement referred to in Section 7., Section 7 defines an arbitration agreement to mean an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. It provides that an arbitration agreement could be in the form of an arbitration clause in a contract or in the form of a separate agreement. Further, Section 7 mandates that an arbitration agreement shall be in writing. According to Section 7(4), an arbitration agreement is in writing if it is contained in a document signed by the parties; an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. Section 7(5) provides that a reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract., The concept of separability or severability of an arbitration agreement from the underlying contract is a legal fiction which acknowledges the separate nature of an arbitration agreement. The separate nature of the arbitration agreement from the underlying contract is one of the cornerstones of arbitration law. As Redfern and Hunter explain, an arbitration agreement is juridically independent from the underlying contract in which it is contained. The concept of separability reflects the presumptive intention of the parties to distinguish the underlying contract, which captures the substantive rights and obligations of the parties, from an arbitration agreement which provides a procedural framework to resolve the disputes arising out of the underlying contract. This presumption has various consequences in theory and practice, the most important being that an arbitration agreement survives the invalidity or termination of the underlying contract., Schwebel, Sobota and Manton explain in a book on International Arbitration that the separability presumption is based on four factors: first, the intention of the parties to require arbitration of any dispute arising between them, including disputes over the validity of the contract; second, preventing an unwilling party from avoiding its earlier commitment by alleging the invalidity of the underlying contract; third, since the arbitration agreement and the underlying contract are considered as two separate agreements, the insufficiency in fulfilling formalities in the underlying contract would not result in the invalidity of the arbitration agreement; and fourth, if the separability presumption is discarded, courts will have to rule on the merits of the disputes instead of the arbitral tribunals., The rationale for the separability presumption lies in the contractual freedom of the parties to an arbitration agreement to settle their disputes by proceedings before an arbitral tribunal to the exclusion of courts. According to the common grain of business understanding and expectation, the parties intend all their disputes over substantive rights and obligations under the underlying contract to be resolved by the arbitral tribunal. Therefore, the separability presumption ensures that an arbitration agreement survives a termination, repudiation, or frustration of a contract to give effect to the true intention of the parties and ensure sanctity of the arbitral proceedings., Switzerland was one of the first jurisdictions to recognize the separability presumption. In a decision rendered by the Swiss Federal Tribunal in 1933, it was observed that even where the arbitration clause is contained in the same document as the substantive contract to which it relates and therefore from the outside appears as a part of the main agreement, it still does not constitute a single provision of the main agreement but an independent agreement of a special nature., However, Gary Born points out that although an arbitration agreement could be separated from the underlying contract, it can never be independent or autonomous from such contract. This is largely due to the fact that in certain situations, the defects in the underlying contract could also invalidate the arbitration agreement., The separability presumption developed gradually in English law starting with the decision of the House of Lords in Heyman v. Darwins. The issue before the House of Lords was whether an arbitration agreement contained in an underlying contract could survive the termination of such contract for a repudiatory breach. It was held that an arbitration agreement is collateral to the substantive contract and could survive its termination. Lord Macmillan observed that an arbitration agreement is materially different from other ordinary contracts, the reason being that breach of obligations under ordinary contracts cannot in general be specifically enforced and breach of them results only in damages, but an arbitration agreement can be specifically enforced by the machinery of the arbitration Acts. Lord Macmillan concluded that repudiation or breach of a contract does not extinguish the arbitration agreement, because it survives for the purpose of resolving the outstanding claims arising out of the breach: 'I am, accordingly, of the opinion that what is commonly called repudiation or total breach of a contract, whether acquiesced in by the other party or not, does not abrogate the contract, though it may relieve the injured party of the duty of further fulfilling the obligations which he has by the contract undertaken to the repudiating party. The contract is not put out of existence, though all further performance of the obligations undertaken by each party in favour of the other may cease. It survives for the purpose of measuring the claims arising out of the breach, and the arbitration clause survives for determining the mode of their settlement. The purposes of the contract have failed, but the arbitration clause is not one of the purposes of the contract.', In subsequent decisions, the English courts reiterated the separability presumption. In Harbour Assurance Co. (U.K.) Ltd. v. Kansa General International Insurance Co. Ltd., the Court of Appeal held that an arbitration agreement is a self‑contained contract collateral to the containing contract. The separability presumption is also enshrined in Section 7 of the UK Arbitration Act 1996 in the following terms: 'Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non‑existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement.', Chitty on Contracts states that Section 7 of the UK Arbitration Act maintains the established common law principle which treats an arbitration agreement as distinct from the contract of which it forms part. According to Chitty, treating an arbitration agreement distinct and separate from the underlying contract has two consequences: first, an arbitration agreement can be void or voidable only on the grounds which directly relate to it; and second, if the arbitration agreement is valid and binding and is sufficiently wide in its terms, issues relating to the validity, existence, or effectiveness of the underlying contract are within the substantive jurisdiction of the arbitral tribunal., In Premium Nafta Products Limited v. Fili Shipping Co. Ltd., the House of Lords further explained the separability presumption in Section 7 of the UK Arbitration Act. The issue was whether a party was bound by an arbitration agreement contained in an underlying contract which was allegedly procured by fraud and bribery. Lord Hoffman, writing for the House of Lords, held that it could be enforced in view of the separability presumption. The Law Lord held that an arbitration agreement in terms of Section 7 of the UK Arbitration Act is a distinct agreement from the underlying contract and therefore can be void or voidable only on grounds which relate directly to the arbitration agreement. Lord Hoffman built on his past decision in Harbour Assurance by holding that Section 7 protects an arbitration agreement from any indirect challenge., The US Federal Arbitration Act presupposes that an arbitration agreement can be separate and distinct from the underlying contract. The separability presumption was subsequently reiterated by US courts with respect to both international and domestic arbitration. In Prima Paint Corporation v. Flood & Conklin Mfg. Co., the Supreme Court of the United States affirmed the separability presumption by observing that arbitration clauses as a matter of federal law are separable from the contracts in which they are embedded. In reaching this conclusion, the court emphasized the presumptive desire of the parties to insulate the arbitration agreement from challenges directed at the underlying contract. The position of law laid down in Prima Paint was reiterated by the Supreme Court of the United States in Buckeye Check Cashing Inc. v. Cardegna and Rent‑A‑Center, West, Inc. v. Jackson. In Rent‑A‑Center, it was held that application of the severability rule does not depend on the substance of the remainder of the contract., The doctrine of separability has been statutorily recognized under the domestic arbitration regime in Singapore through Section 21 of the Arbitration Act, 2001. The provision is that an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. The separability presumption has been further explained by the Singapore High Court in BNA v. BNB. The High Court observed that the parties intend their arbitration agreement to remain effective if a provision of the substantive contract into which it is integrated could, in certain circumstances of fact or law, operate to render their arbitration agreement invalid. Thus, the Singapore High Court held that the purpose of the separability presumption is to insulate an arbitration agreement from invalidity that may arise from a challenge to the substantive contract., The New York Convention does not expressly provide for the separability presumption. Article II of the Convention defines an arbitration agreement as including an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. Moreover, Article V(1)(a) provides that the recognition and enforcement of an arbitral award may be refused where the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. The provision rests on the premise that international arbitration agreements could be subjected to different national laws and legal rules than the underlying contract, and therefore an arbitration agreement is presumptively separate from the underlying contract. According to Gary Born, Article II and Article V(1)(a) of the New York Convention indicate that the Convention treats an arbitration agreement as being different from the underlying contract. Article 16 of the Model Law deals with the competence of an arbitral tribunal to rule on its own jurisdiction. Article 16(1) provides: 'The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall entail ipso jure the invalidity of the arbitration clause.' Rule 23 of the UNCITRAL Arbitration Rules, 2021 also provides that an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. In contrast to the New York Convention, the Model Law expressly recognizes the separability presumption., According to the UNCITRAL Working Group, the separability presumption is incorporated under Article 16(1) to complement the principle of competence‑competence. The separability presumption further ensures that the invalidity of the underlying contract does not affect the jurisdiction of the arbitral tribunal to decide on the nullity of the contract or any other issues submitted to its jurisdiction by the parties unless it finds that the defect which causes the nullity of the contract also affects the arbitration clause itself., The last sentence of Article 16(1) states the general principle of contractual validity of arbitration clauses. It connotes that the invalidity of the underlying contract will not necessarily entail the invalidity of an arbitration agreement contained in the contract. Accordingly, the arbitral tribunal's jurisdiction will be affected only when the defect causing invalidity is directed at the arbitration agreement., The Arbitration Act also incorporates the separability presumption in Section 16(1) along the lines of the Model Law. Section 16(1) reads as follows: 'Competence of arbitral tribunal to rule on its jurisdiction (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose, (a) an arbitration agreement which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and (b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.', The separability presumption, as incorporated under Article 16(1) of the Model Law, as well as Section 16 of the Arbitration Act, is qualified by the expression 'for that purpose'. A plain reading may suggest that Section 16 has incorporated the separability presumption only for the particular purpose of allocation of competence over jurisdictional disputes. However, the Digest of Case Laws on the UNCITRAL Model Law states that the language used in the second sentence does not prevent the application of the separability presumption when a jurisdictional question is raised before a court. Gary Born suggests that the better view is that the separability presumption contained in Article 16(1) states a general rule of contractual validity which is applicable for all purposes., The judicial view that emerges from the Indian courts also seems to suggest that an arbitration agreement is treated as distinct and separate from the underlying contract as a general rule of substantive validity. The separability presumption has undergone a significant evolution in India. Initially, the Indian courts viewed an arbitration agreement as an integral part of the underlying contract without any existence beyond such contract. For instance, in Union of India v. Kishorilal Gupta, the issue before the Supreme Court of India was whether an arbitration clause in the original contract survived after the enactment of a subsequent contract. Justice K. Subba Rao, as the learned Chief Justice then was, considered Heyman but distinguished it on the ground that it only dealt with repudiation, where rights and obligations of parties survive the termination of contract. It was held that in situations where the original contract is superseded by a subsequent contract, the arbitration clause in the original contract will also cease to exist. Justice K. Subba Rao, speaking for the majority, held that first, an arbitration clause is a collateral term of a contract as distinguished from its substantive terms, but nonetheless it is an integral part of it; second, the existence of the underlying contract is a necessary condition for the operation of an arbitration clause; third, if the underlying contract was non‑est in the sense that it never came legally into existence or was void‑ab‑initio, the arbitration clause also cannot operate; fourth, if the parties put an end to a validly executed contract and substitute it with a new contract, the arbitration clause of the original contract also perishes with it; and fifth, in situations such as repudiation, frustration, or breach of contract, only the performance of the contract comes to an end, the arbitration clause persists because the contract continues to exist for the purposes of disputes arising under it., In Damodar Valley Corporation v. K. K. Kar, a two‑Judge Bench of the Supreme Court of India held that the plea that a contract is void, illegal, or fraudulent affects the entire contract along with the arbitration clause. However, the enactment of the Arbitration Act in 1996 enabled the Indian courts to give effect to the separability presumption with greater impetus. Section 16(1)(b), which provides that a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause, renders the decisions in Kishorilal Gupta and Damodar Valley Corporation redundant. Consequently, even if the underlying contract is declared null and void, it will not ipso jure result in the invalidity of the arbitration agreement., In Firm Ashok Traders v. Gurumukh Das Saluja, the issue before the Supreme Court of India was whether an application under Section 9 of the Arbitration Act moved by a partner of a non‑registered firm or by a person not shown as a partner in the Register of Firms was maintainable in view of Section 69(3) of the Indian Partnership Act, 1932. Section 69(3) creates a bar against the institution of a suit to enforce a right arising from a contract unless the firm is registered and the person suing is or has been shown in the Register of Firms as partner. The Supreme Court of India considered the overall scheme of the Arbitration Act to hold that an arbitration clause is separable from the other clauses of the partnership deed and constitutes an agreement by itself., In National Agricultural Cooperative Marketing Federation India Ltd. v. Gains Trading Co., the issue before the Supreme Court of India in an application under Section 11 was whether an arbitration clause comes to an end if the contract containing such clause is repudiated. While answering this in the negative, the Supreme Court of India observed that even if the underlying contract comes to an end, the arbitration agreement contained in such contract survives for the purpose of the resolution of disputes between the parties. Similarly, in P. Manohar Reddy & Bros. v. Maharashtra Krishna Valley Development Corp., the Supreme Court of India referred to Buckeye Check Cashing Inc. to observe that an arbitration agreement contained in an underlying contract is a collateral term which may survive the termination of the contract., In Magma Leasing & Finance Ltd. v. Potluri Madhavilata, the Supreme Court of India cited Heyman with approval to hold that the termination of the underlying contract does not render an arbitration agreement inoperative. It was further observed that the arbitration agreement survives for the purpose of resolution of disputes arising in respect of, with regard to, or under the underlying contract. The emphasis on the expressions 'in respect of', 'with regard to' or 'under' indicates that the purpose of an arbitration agreement is to embody the mutual intention of the parties to settle any disputes that may arise in respect of the substantive obligations under the underlying contract. It is therefore a logical conclusion that the parties mutually intend to make an arbitration agreement distinct and separate from the underlying contract, so that even if the underlying contract comes to an end, the arbitration agreement survives to resolve any outstanding disputes that may arise out of the substantive obligations under the contract., In view of the above discussion, we formulate our conclusions on this aspect. First, the separability presumption contained in Section 16 is applicable not only for the purpose of determining the jurisdiction of the arbitral tribunal; it encapsulates the general rule on the substantive independence of an arbitration agreement. Second, parties to an arbitration agreement mutually intend to confer jurisdiction on the arbitral tribunal to determine questions of jurisdiction as well as substantive contractual disputes between them. The separability presumption gives effect to this by ensuring the validity of an arbitration agreement contained in an underlying contract, notwithstanding the invalidity, illegality, or termination of such contract. Third, when the parties append their signatures to a contract containing an arbitration agreement, they are regarded in effect as independently appending their signatures to the arbitration agreement. The reason is that the parties intend to treat an arbitration agreement contained in an underlying contract as distinct from the other terms of the contract. Fourth, the validity of an arbitration agreement, in the face of the invalidity of the underlying contract, allows the arbitral tribunal to assume jurisdiction and decide on its own jurisdiction by determining the existence and validity of the arbitration agreement. In the process, the separability presumption gives effect to the doctrine of competence‑competence., In view of the legal position, we now proceed to analyze the correctness of the decision in N.N. Global 2. The Constitution Bench acknowledged the separability presumption, but refused to apply it in the context of Sections 33 and 35 of the Stamp Act. The relevant observation of the Supreme Court of India is as follows: '[...] The evolution of the principle that an arbitration is a separate and distinct agreement from the contract would indicate that it would have no play in the context of the duty of a Court, within the meaning of Sections 33 and 35 of the Stamp Act, to act in consonance therewith.' The above position of law is contrary to the separability presumption which treats an arbitration agreement as separate from the underlying contract., The doctrine of competence‑competence, as originally developed in Germany, was traditionally understood to imply that arbitrators are empowered to make a final ruling on their own jurisdiction, with no subsequent judicial review of the decision by any court. However, many jurisdictions allow an arbitral tribunal to render a decision on its jurisdiction, subject to substantive judicial review. It is a well‑recognized principle of public international law that a legal authority possessing adjudicatory powers has the right to decide its own jurisdiction. Similarly, it is a general rule of international arbitration law that an arbitral tribunal has the power to determine its own jurisdiction. The ability of an arbitral tribunal to determine its own jurisdiction is an important facet of arbitration jurisprudence because it gives effect to the separability presumption. The separability presumption insulates the arbitration agreement from the defects of the underlying contract, and thereby ensures the sustenance of the tribunal's jurisdiction over the substantive rights and obligations of the parties under the underlying contract even after such a contract is put to an end. The doctrine of competence‑competence allows the tribunal to decide on all substantive issues arising out of the underlying contract, including the existence and validity of the arbitration agreement., The doctrine of competence‑competence is now a part of all major jurisdictions. Section 30 of the UK Arbitration Act provides that the arbitral tribunal may rule on its own substantive jurisdiction with respect to: first, whether there is a valid arbitration agreement; second, whether the tribunal is properly constituted; and third, what matters have been submitted to arbitration in accordance with the arbitration agreement. The basis for the jurisdictional competence of an arbitral tribunal can be evinced from the following observation of Lord Hoffman in Fili Shipping Company Limited: 'In my opinion the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute rising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal.' In Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of Pakistan, the United Kingdom Supreme Court held that the tribunal's own view of its jurisdiction has no legal or evidential value when the issue pertains to the exercise of legitimate authority by the tribunal. Thus, the UK position is that although the arbitral tribunal is empowered to consider whether it has jurisdiction, its determination is subject to the examination of the courts., The courts in the United States have considered the principle of competence‑competence to be intertwined with the separability presumption. In Prima Paint, the United States Supreme Court held that if a claim is made to the effect that the underlying contract was induced fraudulently, then the issue should be determined by the courts. The Supreme Court concluded that all the other issues should be left for the determination of the arbitral tribunal to not only honor the plain meaning of the statute, but also the unmistakably clear congressional purpose that the arbitration procedure, when selected by the parties to a contract, be speedy and not subject to delay and obstruction in the courts. In Buckeye Check Cashing, the United States Supreme Court reiterated Prima Paint by holding that an arbitral tribunal should consider the issue of the validity of the underlying contract in the first instance. Thus, the position in the United States is that the courts should only check if any invalidity is directed at the arbitration agreement, leaving all the other issues, including that of the validity of the underlying contract, to the arbitral tribunal., Under Singaporean law, Article 21(1) of the Arbitration Act, 2001 incorporates the doctrine of competence‑competence insofar as domestic arbitration is concerned. It provides that an arbitral tribunal may rule on its own jurisdiction, including a plea that it has no jurisdiction and any objections to the existence or validity of the arbitration agreement at any stage of the arbitral proceedings. The conduct of international commercial arbitrations in Singapore is governed by the International Arbitration Act, 1994. Section 3 of the International Arbitration Act states that the Model Law has the force of law in Singapore. In Malini Ventura v. Knight Capital Pte Ltd, the issue before the Singapore High Court was whether the arbitral tribunal has primacy to determine the existence of an arbitration agreement in the context of international commercial arbitration. The Court analysed the scope and purpose of Article 16(1) of the Model Law to hold that an arbitral tribunal has first priority in determining whether an arbitration agreement exists and the court's consideration must come after the tribunal's own examination of the issue. It was further observed that the tribunal's powers in relation to the issue are wide because it can consider not only validity but also the very existence of the arbitration agreement. Thus, the Singapore High Court has given full effect to the doctrine of competence‑competence since the arbitral tribunal gets the first priority to determine issues even with respect to the very existence of the arbitration agreement, while the jurisdiction of the courts is limited to a prima facie determination., Under the previous arbitration regime in India, that is the Arbitration Act of 1940, the issue of determining the existence or validity of an arbitration agreement was exclusively within the domain of the courts.
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